EXHIBIT 4.9
REGISTRATION RIGHTS AGREEMENT
Dated as of April 1, 1997
relating to
$55,000,000 Aggregate Principal Amount
of 7 1/4 % Convertible Subordinated
Notes due 2004
by and between
American Residential Services, Inc.
and
Xxxxx Xxxxxx Inc.
Xxxxxxx, Sachs & Co.
Xxxxxxxxxx Securities
This Registration Rights Agreement (this "Agreement") is made and
entered into as of April 1, 1997, by and between American Residential Services,
Inc., a Delaware corporation (the "Company"), and Xxxxx Xxxxxx Inc., Xxxxxxx,
Xxxxx & Co. and Xxxxxxxxxx Securities (the "Initial Purchasers"), who have
purchased $55,000,000 aggregate principal amount of 7 1/4% Convertible
Subordinated Notes due 2004 (the "Notes") of the Company (excluding up to an
additional $8,250,000 aggregate principal that may be purchased by the Initial
Purchasers pursuant to their over-allotment option) pursuant to the Purchase
Agreement, dated March 27, 1997 (the "Purchase Agreement"), between the Company
and the Initial Purchasers. In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to closing under the Purchase Agreement. All defined terms used
but not defined herein shall have the meanings ascribed to them in the Indenture
(as defined herein).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
CLOSING DATE: The date on which the Notes are sold by the Company to
the Initial Purchasers pursuant to the Purchase Agreement.
COMMISSION: The Securities and Exchange Commission.
COMMON STOCK: The Common Stock, par value $.001 per share, of the
Company.
DAMAGES PAYMENT DATE: With respect to the Notes or the Common Stock,
as applicable, each Interest Payment Date (as defined in the Indenture) as of
which liquidated damages shall have accrued and shall not yet have been paid
under the provisions of Section 4 of this Agreement.
EFFECTIVENESS TARGET DATE: As defined in Section 4 hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Notes to (i) certain "qualified institutional buyers" (as
such term is defined in Rule 144A under the Securities Act) and (ii) certain
persons in offshore transactions in reliance on Regulation S under the
Securities Act.
HOLDERS: As defined in Section 2(b) hereof.
INDENTURE: The Indenture, dated as of April 1, 1997, between the
Company and U.S. Trust Company of Texas, N.A., as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
INTEREST PAYMENT DATE: As defined in the Indenture.
NASD: National Association of Securities Dealers, Inc.
OFFERING MEMORANDUM: The Offering Memorandum, dated March 27, 1997,
and all amendments and supplements thereto, relating to the Notes and prepared
by the Company pursuant to the Purchase Agreement.
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PERSON: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
PRELIMINARY PROSPECTUS: As defined in Section 3(g) hereof.
PROSPECTUS: The prospectus included in the Shelf Registration
Statement (as defined herein), as amended or supplemented by any Prospectus
Supplement with respect to the terms of the offering of any portion of the
Transfer Restricted Securities (as defined herein) covered by the Shelf
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments, and all documents which may be
incorporated by reference into such prospectus.
PROSPECTUS SUPPLEMENT: As defined in Section 5(b) hereof.
RECORD HOLDER: (i) With respect to any Damages Payment Date relating
to the Notes, each Person who is registered on the books of the Registrar as the
holder of Notes on the record date with respect to the Interest Payment Date on
which such Damages Payment Date shall occur and (ii) with respect to any Damages
Payment Date relating to the Common Stock, each Person who is a holder of record
of such Common Stock fifteen days prior to the Damages Payment Date.
REGISTRATION EXPENSES: As defined in Section 6(a) hereof.
SECURITIES ACT: The Securities Act of 1933, as amended.
SHELF REGISTRATION STATEMENT: As defined in Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb), as amended through the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Note and share of Common Stock
of the Company issuable upon conversion of a Note, until such Note or share, as
the case may be, (i) has been transferred pursuant to the Shelf Registration
Statement or another registration statement covering it which has been filed
with the Commission pursuant to the Securities Act, in either case after such
registration statement has become effective under the Securities Act, (ii) has
been transferred pursuant to Rule 144 under the Securities Act or (iii) may be
sold or transferred pursuant to Rule 144(k) under the Securities Act (or any
similar provisions then in force) under the Securities Act or otherwise.
UNDERWRITER: Any underwriter, placement agent, selling broker,
dealer manager, qualified independent underwriter or similar securities industry
professional.
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UNDERWRITTEN OFFERING: An offering in which Transfer Restricted
Securities are sold to an Underwriter or with the assistance of an Underwriter
for reoffering to the public on a firm commitment or best efforts basis pursuant
to the Shelf Registration Statement.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) SECURITIES SUBJECT TO THIS AGREEMENT. The only securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person is a "beneficial owner" (as that term is used in Rule 13d-3 under the
Exchange Act) of Transfer Restricted Securities.
SECTION 3. SHELF REGISTRATION
(a) The Company shall cause to be filed with the Commission on or
prior to 60 days after the Closing Date, a shelf registration statement pursuant
to Rule 415 under the Securities Act (as may then be amended, the "Shelf
Registration Statement") on Form S-1 or, at the option of the Company, on Form
S-3, if the use of such form is then available to the Company, to cover resales
of Transfer Restricted Securities by the Holders who satisfy the provisions of
Section 3(g) hereof relating to the provision of information in connection with
the Shelf Registration Statement. The Company shall use its best efforts to
cause the Shelf Registration Statement to be declared effective by the
Commission on or prior to 120 days after the Closing Date. The Company shall use
its reasonable best efforts to keep the Shelf Registration Statement
continuously effective for a period ending three years from the Closing Date or
such shorter period that will terminate when each of the Transfer Restricted
Securities covered by the Shelf Registration Statement shall cease to be a
Transfer Restricted Security.
Upon the occurrence of any event that would cause the Shelf
Registration Statement (i) to contain any 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 or (ii) to be not effective and usable for
resale of Transfer Restricted Securities during the period the Shelf
Registration Statement is required to be effective and usable, the Company shall
as promptly as reasonably practicable file an amendment to the Shelf
Registration Statement, in the case of an event described in clause (i),
correcting any such misstatement or omission, and in the case of an event
described in either clause (i) or (ii), use its reasonable best efforts to cause
such amendment to be declared effective and the Shelf Registration Statement to
become usable as soon as reasonably practicable thereafter.
Notwithstanding anything to the contrary in this Section 3, subject
to compliance with Section 4 hereof, if applicable, the Company may prohibit
offers and sales of Transfer
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Restricted Securities pursuant to the Shelf Registration Statement at any time
if (A) (i) it is in possession of material non-public information, (ii) the
Board of Directors of the Company or the Executive Committee thereof determines
that such prohibition is necessary in order to avoid a requirement to disclose
such material non-public information and (iii) the Board of Directors of the
Company or the Executive Committee thereof determines in good faith that
disclosure of such material non-public information would be materially adverse
to the interests of the Company and its shareholders or (B) the Company has made
a public announcement relating to an acquisition or business combination
transaction including the Company and/or one or more of its subsidiaries (i)
that is material to the Company and its subsidiaries taken as a whole and (ii)
the Board of Directors of the Company or the Executive Committee thereof
determines in good faith that offers and sales of Transfer Restricted Securities
pursuant to the Shelf Registration Statement prior to the consummation of such
transaction (or such earlier date as the Board of Directors or the Executive
Committee thereof shall determine) is materially adverse to the interests of the
Company and its shareholders (the period during which any such prohibition of
offers and sales of Transfer Restricted Securities pursuant to the Shelf
Registration Statement is in effect pursuant to clause (A) or (B) of this
subparagraph (a) is referred to herein as a "Suspension Period"). A Suspension
Period shall commence on and include the date on specified as such in the
written notice to Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement (but shall not commence on any day prior to the date on
which the Company provides such written notice that offers and sales of Transfer
Restricted Securities cannot be made under the Shelf Registration Statement in
accordance with this Section 3 and shall end on the date on which each Holder of
Transfer Restricted Securities covered by the Shelf Registration Statement
either receives copies of a Prospectus Supplement contemplated by Section 5(b)
hereof or is advised in writing by the Company that offers and sales of Transfer
Restricted Securities pursuant to the Shelf Registration Statement and use of
the Prospectus may be resumed.
(b) None of the Company nor any of its security holders (other than
the Holders in such capacity) shall have the right to include any of the
Company's securities in the Shelf Registration Statement.
(c) If (i) only Notes are registered in the Shelf Registration
Statement and the Holders of a majority in aggregate principal amount of the
Notes registered in the Shelf Registration Statement so elect, or (ii) any
shares of Common Stock issued upon conversion of Notes are to be included in the
Shelf Registration Statement and the Holders of a majority of the shares of
Common Stock to be registered in the Shelf Registration Statement so elect, an
offering of Transfer Restricted Securities pursuant to the Shelf Registration
Statement may by effected in the form of an Underwritten Offering. In such
event, and if any Underwriter for an Underwritten Offering advises the Company
and the Holders electing to participate in that Underwritten Offering (the
"Selling Holders") in writing that in that Underwriter's opinion the amount or
number of Transfer Restricted Securities proposed to be sold in that
Underwritten Offering exceeds the amount or number of Transfer Restricted
Securities which can be sold in that Underwritten Offering, there shall be
included in that Underwritten Offering the amount of
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such Transfer Restricted Securities which in the opinion of such Underwriter can
be sold, and such amount or number of shares shall be allocated pro rata among
the Selling Holders on the basis of the principal amount or number of shares of
Transfer Restricted Securities requested to be included by such Holders. The
Selling Holders shall pay all underwriting discounts and commissions of the
Underwriters in connection with any such Underwritten Offering.
(d) If any of the Transfer Restricted Securities covered by the
Shelf Registration Statement are to be sold in an Underwritten Offering, the
Underwriter(s) that will administer the offering will be selected by the Selling
Holders of a majority of the Transfer Restricted Securities to be covered by the
Shelf Registration Statement (with Holders of Common Stock constituting Transfer
Restricted Securities being deemed to be Selling Holders of the aggregate
principal amount of Notes converted into Common Stock for purposes of such
calculation); PROVIDED, HOWEVER, that such Underwriter(s) shall be reasonably
satisfactory to the Company.
(e) Each Holder whose Transfer Restricted Securities are covered by
the Shelf Registration Statement filed pursuant to this Section 3 agrees, upon
the request of the Underwriter(s) in any Underwritten Offering, not to effect
any sale or distribution of securities of the Company of the same class as the
securities included in such Shelf Registration Statement, including a sale
pursuant to Rule 144 under the Securities Act (except as part of such
registration), during the 10-day period prior to, and during the 90-day period
beginning on, the date of the underwriting agreement entered into in connection
with that Underwritten Offering.
The foregoing provisions of this Section 3(e) shall not apply to any
Holder of Transfer Restricted Securities if such Holder is prevented by
applicable statute or regulation from entering into any such agreement;
PROVIDED, HOWEVER, that any such Holder shall undertake, in its request to
participate in any Underwritten Offering, not to effect any sale or distribution
of any of its Transfer Restricted Securities commencing on the date of sale of
such Transfer Restricted Securities unless it has provided 90 days prior written
notice of such sale or distribution to the Underwriter(s).
(f) The Company agrees not to effect any public or private offer,
sale or distribution of securities of the same class as the Transfer Restricted
Securities to be registered in an Underwritten Offering, including a sale
pursuant to Regulation D under the Securities Act, during the 10-day period
prior to, and during the 90-day period beginning on, the date of the
underwriting agreement entered into in connection with that Underwritten
Offering, to the extent timely notified in writing by the Underwriter(s) for
that Underwritten Offering (except as part of such registration, if permitted,
or pursuant to registrations on Form S-1 (for an acquisition shelf registration
only) or on Forms S-4 or S-8 or any successor form to such Forms), unless the
Underwriter(s) shall consent in writing; PROVIDED, HOWEVER, that any such
agreement shall permit (A) the issuance by the Company of any shares of Common
Stock issued to employees of the Company or to any other eligible person
pursuant to any employee stock option plan, stock ownership plan, stock bonus
plan or stock compensation plan of the Company in effect on the
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date of such Underwritten Offering, (B) the issuance by the Company of Common
Stock upon the conversion of securities, or the exercise of options or warrants,
outstanding at the date of such Underwritten Offering and (C) the issuance by
the Company of Common Stock, securities convertible into or exercisable or
exchangeable for Common Stock or options to purchase Common Stock as
consideration for acquisitions; provided that any Common Stock issued during the
90-day period referred to in this Section 3(f) pursuant to clause (C) (whether
directly or upon conversion or exercise or exchange of any other securities) in
transactions accounted for as purchases are subject to resale restrictions for
the 90-day period from the date of such Underwritten Offering.
(g) No Holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in the Shelf Registration Statement pursuant
to this Agreement unless such Holder first furnishes to the Company in writing
(i) such Holder's name and mailing address (which may be used for purposes of
providing written notices and other communications contemplated by this
Agreement) and (ii) within 10 business days after receipt of a request therefor,
such information as the Company may reasonably request for use in connection
with any Shelf Registration Statement or Prospectus or preliminary Prospectus (a
"Preliminary Prospectus") included in the Shelf Registration Statement.
SECTION 4. LIQUIDATED DAMAGES
(a) If (i) the Shelf Registration Statement is not filed with the
Commission on or prior to 60 days after the Closing Date, (ii) the Shelf
Registration Statement has not been declared effective by the Commission within
120 days after the Closing Date (the "Effectiveness Target Date"), or (iii) the
Shelf Registration Statement is filed and declared effective but shall
thereafter cease to be effective (without being succeeded immediately by a
replacement shelf registration statement filed and declared effective) or usable
for the offer and sale of Transfer Restricted Securities for a period of time
(including any Suspension Period) which shall exceed 60 days in the aggregate in
any of the one-year periods ending on the first, second or third anniversaries
of the Closing Date, or which shall exceed 30 days in any calendar quarter
within any of such one-year periods (each such event referred to in clauses (i)
through (iii), a "Registration Default"), the Company will pay liquidated
damages to each Holder who has furnished the information requested of him
pursuant to Section 3(g) of this Agreement and who has otherwise complied with
his respective obligations under this Agreement. The amount of liquidated
damages payable during any period in which any Registration Default shall have
occurred and be continuing is that amount which is equal to one-quarter of one
percent (25 basis points) per annum per $1,000 principal amount or $2.50 per
annum per 39.2157 shares of Common Stock (subject to adjustment in the event of
a stock split, stock re-combination, stock dividend and the like) constituting
Transfer Restricted Securities for each 90-day period until the applicable
registration statement is filed and the applicable registration statement is
declared effective or the Shelf Registration Statement again becomes effective
or usable, as the case may be, up to a maximum of one and one-quarter percent
(125 basis points) per annum per $1,000
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principal amount of Notes or $12.50 per annum per 39.2157 shares of Common Stock
(subject to adjustment as aforesaid) constituting Transfer Restricted
Securities. The Company shall notify the Trustee and the Initial Purchasers
within three business days after each and every date on which a Registration
Default first occurs. All accrued liquidated damages shall be paid to Record
Holders entitled thereto pursuant to the foregoing provisions by wire transfer
of immediately available funds or by federal funds check by the Company on each
Damages Payment Date. Following the cure of a Registration Default, liquidated
damages will cease to accrue with respect to such Registration Default. No
Liquidated Damages shall be payable with respect to any week commencing three
years or more after the Closing Date (or commencing after the expiration of such
shorter period as may hereafter become applicable as the holding period for
restricted securities under Rule 144(k) under the Securities Act).
All of the Company's obligations set forth in the preceding
paragraph which are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full.
SECTION 5. REGISTRATION PROCEDURES
In connection with the Shelf Registration Statement, the Company
will use its reasonable best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution or disposition thereof, and pursuant
thereto the Company will:
(a) on or prior to the date 60 days after the Closing Date, prepare
and file with the Commission the Shelf Registration Statement, including all
financial statements required to be included or incorporated by reference
therein pursuant to the provisions of the Securities Act and the rules and
regulations thereunder; cooperate and assist in any filings required to be made
with the NASD with respect to the offers and sales to be made under the Shelf
Registration Statement; and use its reasonable best efforts to cause the Shelf
Registration Statement to become effective under the Securities Act on or prior
to the date 120 days after the Closing Date and approved on or prior to such
date by such governmental agencies or authorities as may be necessary under the
state securities laws to enable the Selling Holders to consummate the
disposition of such Transfer Restricted Securities; PROVIDED, HOWEVER, that
before filing the Shelf Registration Statement or any Prospectus, or any
amendments or supplements thereto, the Company will furnish to the Holders of
Transfer Restricted Securities included in the Shelf Registration Statement and
the Underwriter(s), if any, copies of all such documents proposed to be filed
(except that the Company shall not be required to furnish any exhibits to such
documents, including those incorporated by reference, unless so requested by
such a Holder in writing), and the Company will not file any Shelf Registration
Statement or amendment thereto or any Prospectus or any supplement thereto to
which (i) the Underwriter(s), if any, shall reasonably object or (ii) if there
are no Underwriter(s) and if (A) only Notes are to be registered
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in the Shelf Registration Statement and the Holders of a majority in aggregate
principal amount of the Notes registered in the Shelf Registration Statement
shall reasonably object, or (B) any shares of Common Stock issued upon
conversion of the Notes are included in the Shelf Registration Statement and the
Holders of a majority of the shares of Common Stock so registered in the Shelf
Registration Statement shall reasonably object, in each such case within five
business days after the receipt thereof. A Holder or Underwriter, if any, shall
be deemed to have reasonably objected to such filing if the Shelf Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed to be
filed contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading which misstatement or omission is specifically identified
by that Holder or Underwriter, as the case may be, to the Company in writing
within such five business days;
(b) subject to the provisions of Section 3(a) hereof, prepare and
file with the Commission such amendments and post-effective amendments to the
Shelf Registration Statement as may be necessary to keep the Shelf Registration
Statement effective for the applicable period set forth in Section 3(a) hereof,
or such shorter period terminating when all Transfer Restricted Securities
covered by the Shelf Registration Statement have been sold or when, for any
other reason, there are no remaining Transfer Restricted Securities; cause the
Prospectus to be supplemented by any required supplement thereto (a "Prospectus
Supplement"), and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to comply fully with the applicable provisions of Rules 424
and 430A under the Securities Act in a timely manner; and comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by the Shelf Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in the Shelf Registration
Statement, the Prospectus or such Prospectus Supplement as applicable;
(c) if requested by the Holders of Transfer Restricted Securities
included in the Shelf Registration Statement or, if the Transfer Restricted
Securities are being sold in an Underwritten Offering, the Underwriter(s) of
such Underwritten Offering, promptly incorporate in the Prospectus, any
Prospectus Supplement or post-effective amendment to the Shelf Registration
Statement such appropriate information as the Underwriter(s) and/or the Holders
of Transfer Restricted Securities being sold agree in writing should be included
therein relating to the plan of distribution of the Transfer Restricted
Securities, including, without limitation, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
Underwriter(s), the purchase price being paid therefor and any other terms with
respect to the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus, Prospectus
Supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be incorporated in such Prospectus, Prospectus
Supplement or post-effective amendment;
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(d) advise the Underwriter(s), if any, and the Holders of Transfer
Restricted Securities included in the Shelf Registration Statement promptly and,
if requested by such Persons, confirm such advice in writing, (i) when the
Prospectus or any Prospectus Supplement or post-effective amendment to the Shelf
Registration Statement has been filed, and, with respect to the Shelf
Registration Statement or any post-effective amendment thereto, when the same
has become effective, (ii) of any request by the Commission to the Company for
amendments to the Shelf Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Shelf Registration Statement under the Securities Act or of the suspension by
any state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of those purposes and (iv) if at any time the representations
and warranties of the Company contemplated by paragraph (m)(i) below cease to be
true and correct and (v) of the existence of any fact and the happening of any
event that makes any statement of a material fact made or incorporated by
reference in the Shelf Registration Statement, the Prospectus, any amendment or
supplement thereto untrue, or that requires the making of any additions to or
changes in the Shelf Registration Statement or the Prospectus in order to make
the statements therein not misleading. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Shelf Registration Statement,
or any state securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company shall use its reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest practicable time;
(e) promptly following the filing of any document that is to be
incorporated by reference into the Shelf Registration Statement or the
Prospectus subsequent to the initial filing of the Shelf Registration Statement,
provide copies of such document (excluding exhibits, unless requested by a
Holder in writing) to the Holders of Transfer Restricted Securities included in
the Shelf Registration Statement;
(f) furnish to each Holder and each of the Underwriter(s), if any,
without charge, at least one copy of the Shelf Registration Statement, as first
filed with the Commission, and of each amendment thereto (excluding exhibits
thereto and documents incorporated by reference therein unless requested by such
Holder or Underwriter);
(g) deliver to each Holder of Transfer Restricted Securities
included in the Shelf Registration Statement and each of the Underwriter(s), if
any, without charge, as many copies of any Preliminary Prospectus and the
Prospectus and any amendments or supplements thereto as such Persons may
reasonably request; the Company consents to the use of any Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto by each
Holder of Transfer Restricted Securities included in the Shelf Registration
Statement and each of the Underwriter(s), if any, in connection with the public
offering and the sale of the Transfer
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Restricted Securities covered by any Preliminary Prospectus and the Prospectus
or any amendments or supplements thereto;
(h) prior to any public offering of Transfer Restricted Securities,
cooperate with the Holders of Transfer Restricted Securities included in the
Shelf Registration Statement , the Underwriter(s), if any, and their respective
counsel in connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as those Holders or Underwriter(s) may reasonably request and do
any and all other acts or things reasonably necessary or appropriate to enable
the disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Shelf Registration Statement; PROVIDED, HOWEVER, that the Company
shall not be required (i) to register or qualify as a foreign corporation where
it is not now so qualified, (ii) to take any action that would subject it to the
service of process in suits, other than as to matters and transactions relating
to the Shelf Registration Statement, in any jurisdiction where it is not now so
subject, or (iii) to take any action that would subject it to taxation in any
jurisdiction in an amount greater than it would be so subject without having
taken such action;
(i) cooperate with the Holders of Transfer Restricted Securities
included in the Shelf Registration Statement and the Underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold under the Shelf Registration Statement
and not bearing any restrictive legends; and, subject to the provisions of the
Indenture (in the case of Transfer Restricted Securities that are Notes), enable
such Transfer Restricted Securities to be in such denominations and registered
in such names as the Holders of Transfer Restricted Securities included in the
Shelf Registration Statement or the Underwriter(s), if any, may request at least
two full business days prior to any sale of Transfer Restricted Securities under
the Shelf Registration Statement;
(j) if any fact or event contemplated by clause (d)(v) above shall
exist or have occurred, prepare a post-effective amendment or supplement to the
Shelf Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(k) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Shelf Registration Statement and
provide the Trustee under the Indenture and/or the transfer agent for the Common
Stock with printed certificates for the Transfer Restricted Securities which are
in a form eligible for deposit with the Depository Trust Company;
(l) enter into such agreements (including an underwriting agreement)
and take all such other actions in connection therewith as may reasonably be
requested in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to the Shelf
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Registration Agreement, in connection with an Underwritten Offering, and in
connection therewith, (i) make such representations and warranties to the
Underwriter(s), in form, substance and scope as they may reasonably request and
as are customarily made by issuers to Underwriters in primary underwritten
offerings; (ii) obtain opinions of counsel to the Company and updates thereof in
customary form and covering matters reasonably requested by the Underwriter(s)
of the type customarily covered in legal opinions to Underwriter(s) in
connection with primary underwritten offerings addressed to each selling Holder
and the Underwriter(s) requesting the same and covering the matters as may be
reasonably requested by such Holders and Underwriter(s); (iii) obtain, to the
extent permitted by Statement on Auditing Standards No. 72 or any successor
Statement thereto, "cold comfort" letters and updates thereof from the Company's
independent certified public accountants addressed to the selling Holders of
Transfer Restricted Securities and the Underwriter(s) requesting the same, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters to Underwriter(s) in connection with primary
underwritten offerings; and (iv) deliver such documents and certificates as may
be reasonably requested by the Holders of the Transfer Restricted Securities
being sold or the Underwriter(s) of such Underwritten Offering to evidence
compliance with clause (i) above and with any customary conditions contained in
the underwriting agreement entered into by the Company pursuant to this clause
(l). The above shall be done at or prior to each closing under such underwriting
agreement, as and to the extent required thereunder;
(m) make available at reasonable times and in a reasonable manner
for inspection by a representative of the Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement, any Underwriter
participating in any disposition pursuant to the Shelf Registration Statement,
and any attorney or accountant retained by such Holders or any of the
Underwriter(s), all financial and other records, pertinent corporate documents
and properties of the Company and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such Holder,
Underwriter, attorney or accountant in connection with such Shelf Registration
Statement prior to its effectiveness, PROVIDED, HOWEVER, that such
representatives, attorneys or accountants shall agree to keep confidential
(which agreement shall be confirmed in writing in advance to the Company if the
Company shall so request) all information, records or documents made available
to such persons which are not otherwise available to the general public unless
disclosure of such records, information or documents is required by court or
administrative order (of which the Company shall have been given prior notice
and an opportunity to defend) after the exhaustion of all appeals therefrom, and
to use such information obtained pursuant to this provision only in connection
with the transaction for which such information was obtained, and not for any
other purpose;
(n) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its security holders, as soon as practicable, a consolidated earnings
statement, which consolidated earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act, for the twelve-month period (i) commencing
at the end of any fiscal quarter in which Transfer Restricted Securities are
sold to
12
Underwriter(s) in a firm commitment or best efforts Underwritten Offering or
(ii) if not sold to Underwriter(s) in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after the effective date
of the Shelf Registration Statement;
(o) cause the Indenture to be qualified under the TIA, and, in
connection therewith, cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner;
(p) cause all Transfer Restricted Securities covered by the Shelf
Registration Statement to be listed on each securities exchange or quotation
system on which similar securities issued by the Company are then listed if
requested by the Selling Holders of a majority of the outstanding Transfer
Restricted Securities (with Holders of Common Stock constituting Transfer
Restricted Securities being deemed to be Selling Holders of the aggregate
principal amount of Notes converted into such Common Stock for purposes of such
calculation) or the Underwriter(s), if any; cause the Notes covered by the Shelf
Registration Statement to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of such
Notes or the Underwriter(s); and
(q) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
Underwriter (including any "qualified independent Underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD).
Each Holder agrees to furnish promptly to the Company all
information required to be disclosed in the Shelf Registration Statement in
order to make the information previously furnished to the Company by such Holder
for that purpose not materially misleading or necessary to cause the Shelf
Registration Statement not to omit a material fact with respect to such Holder
necessary in order to make the statements therein not misleading.
Each Holder agrees by acquisition of any Transfer Restricted
Securities that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in Section 5(d)(iv) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings with respect to the
Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the time period regarding the
effectiveness of the Shelf Registration
13
Statement set forth in Section 3(a) hereof shall be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to Section 5(d)(v) hereof to and including the date when each Holder of
Transfer Restricted Securities covered by such Shelf Registration Statement
shall have received the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof or shall have received the Advice.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement (the "Registration Expenses") will be borne by
the Company, regardless of whether a Shelf Registration Statement becomes
effective, including without limitation:
(i) all registration and filing fees (including NASD filing
fees, and if applicable, the fees and expenses of any "qualified
independent Underwriter" (and its counsel) that is required to be
retained in accordance with the rules and regulations of the NASD);
(ii) fees and expenses of the Company's compliance with
federal securities, state or foreign blue sky laws;
(iii) expenses of printing or engraving certificates for the
Transfer Restricted Securities in a form eligible for deposit with
Depository Trust Company and of printing the Prospectus and any
Preliminary Prospectus;
(iv) reasonable fees and disbursements of counsel for the
Company and for the Holders of the Transfer Restricted Securities
included in the Shelf Registration Statement (subject to the
provisions of Section 6(b) hereof);
(v) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any special
audit and "cold comfort" letters required by or incidental to the
preparation and filing of a Shelf Registration Statement and
Prospectus and the disposition of Transfer Restricted Securities);
and
(vi) fees and expenses of listing the Transfer Restricted
Securities on any securities exchange or quotation system in
accordance with Section 5(q) hereof.
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, rating agency fees and the fees and expenses of any Person, including
special experts, retained by the Company. The Holders of
14
Transfer Restricted Securities shall bear the expense of any broker's
commission, agency fee or Underwriter's discount or commission.
(b) In connection with the Shelf Registration Statement, the Company
will reimburse the Holders of Transfer Restricted Securities being registered
pursuant to the Shelf Registration Statement for the fees and disbursements of
not more than one counsel chosen by the Holders of a majority of the principal
amount of the Notes being included in the Shelf Registration Statement;
provided, however, that in the case of an Underwritten Offering which includes
shares of Common Stock, such counsel shall be chosen by the Holders of a
majority of the shares of Common Stock being included in such Underwritten
Offering.
Notwithstanding the provisions of this Section 6(b), each Holder of
Transfer Restricted Securities shall pay all Registration Expenses to the extent
required by applicable law.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder
who offers Transfer Restricted Securities pursuant to the Shelf Registration
Statement (each such Holder an "Indemnified Holder"), each agent,
representative, employee, officer and director of any Indemnified Holder and
each person, if any, that controls each Indemnified Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and agents,
representatives, employees, officers and directors or any such controlling
person of any Indemnified Holder from and against any and all losses, claims,
damages, judgments, liabilities and expenses (including the reasonable fees and
expenses of counsel and other expenses in connection with investigating or,
subject to the provisions of Section 7(b), defending or settling any such action
or claim) as they are incurred which arise out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or the Prospectus or any amendment or supplement thereto
or any Preliminary Prospectus or arising out of or based upon 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, except (i) the
Company shall not be liable to any Indemnified Holder in any such case insofar
as such losses, claims, damages, judgments, liabilities or expenses arise out
of, or are based upon, any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Indemnified Holder
furnished in writing by any Indemnified Holder to the Company expressly for use
therein and (ii) the Company shall not be liable to any Indemnified Holder under
the indemnity agreement in this Section 7(a) with respect to any Preliminary
Prospectus to the extent that any such loss, claim, damage, judgment, liability
or expense results from the fact that any Indemnified Holder sold Transfer
Restricted Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus as then
amended or supplemented, if the Company has previously furnished sufficient
copies thereof to the Indemnified Holder. The
15
foregoing indemnity agreement shall be in addition to any liability which the
Company may otherwise have.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
Indemnified Holder with respect to which indemnity may be sought against the
Company pursuant to this Section 7, such Indemnified Holder shall promptly
notify the Company in writing, and the Company shall have the right to assume
the defense thereof, including the employment of counsel reasonably satisfactory
to such Indemnified Holder and payment of all fees and expenses; PROVIDED,
HOWEVER, that the omission so to notify the Company shall not relieve the
Company from any liability that they may have to any Indemnified Holder (except
to the extent that the Company is materially prejudiced or otherwise forfeits
substantive rights or defenses by reason of such failure). An Indemnified Holder
shall have the right to employ separate counsel in any such action or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Holder unless (i) the
Company agrees in writing to pay such fees and expenses, (ii) the Company has
failed promptly to assume the defense and employ counsel reasonably satisfactory
to the Indemnified Holder or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both the Indemnified Holder
and the Company and such Indemnified Holder shall have been advised in writing
by its counsel that representation of such Indemnified Party and the Company by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation has been proposed) due
to actual or potential differing interests between them (in which case the
Company shall not have the right to assume the defense of such action on behalf
of such Indemnified Holder). It is understood that the Company shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for all Indemnified Holders, which firm shall be designated in writing by the
Indemnified Holders of the majority of the outstanding Transfer Restricted
Securities held by Indemnified Holders (with Holders of Common Stock
constituting Transfer Restricted Securities being deemed to be Indemnified
Holders of the aggregate principal amount of Notes converted into such Common
Stock for purposes of such calculation), and that all such fees and expenses
shall be reimbursed on a monthly basis. The Company shall not be liable for any
settlement of any such action effected without the written consent of the
Company, but if settled with the written consent of the Company, or if there is
a final judgment with respect thereto, the Company agrees to indemnify and hold
harmless each Indemnified Holder from and against any loss or liability by
reason of such settlement or judgment. The Company shall not, without the prior
written consent of each Indemnified Holder affected thereby, effect any
settlement of any pending or threatened proceeding in which such Indemnified
Holder has sought indemnity hereunder, unless such settlement includes an
unconditional release of such Indemnified Holder from all liability arising out
of such action, claim, litigation or proceeding.
16
(c) Each Indemnified Holder agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement and
any person controlling the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (collectively, the "Company
Indemnified Parties") to the same extent as the foregoing indemnity from the
Company to any Indemnified Holder, but only with respect to information relating
to each Indemnified Holder furnished to the Company in writing by each
Indemnified Holder, expressly for use in the Registration Statement, Prospectus
(or any amendment or supplement thereto), or any Preliminary Prospectus. In case
any action shall be brought against any Company Indemnified Party based on the
Registration Statement, Prospectus (or any amendment or supplement thereto), or
any Preliminary Prospectus and in respect of which indemnification may be sought
against each Indemnified Holder pursuant to this Section 7(c), each Indemnified
Holder shall have the rights and duties given to the Company by Section 7(b)
hereof (except that if the Company shall have assumed the defense thereof, each
Indemnified Holder may, but shall not be required to, employ separate counsel
therein and participate in the defense thereof and the fees and expenses of such
counsel shall be at the expense of the Indemnified Holder) and the Company
Indemnified Parties shall have the rights and duties given to the Indemnified
Holders by Section 7(b) hereof. The foregoing indemnity agreement shall be in
addition to any liability which the Indemnified Holders may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to any party entitled to indemnification pursuant to Section 7(a) or
7(c) hereof, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, judgments,
liabilities and expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Indemnified
Holders on the other from the offering of the Transfer Restricted Securities 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 Company on the one hand and the Indemnified Holders on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, judgments, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Indemnified Holders on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total net proceeds from
the offering (before deducting expenses) received by the Indemnified Holders.
The relative fault of the Company on the one hand and the Indemnified Holders on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or by any of the Indemnified Holders on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
17
(e) The Company and each Indemnified Holder agree that it would not
be just and equitable if contribution pursuant to Section 7(d) hereof 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 Section 7(d)
hereof. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. No
person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution hereunder
from any other person.
(f) The Company shall also indemnify each Underwriter participating
in the distribution (as described in such registration statement), their
officers and directors and each person who controls such persons (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
to the same extent as provided above with respect to the indemnification of the
Holders.
(g) The indemnity and contribution agreements contained in this
Section 7 (i) are in addition to any liability that any indemnifying party may
otherwise have to any indemnified party and (ii) shall apply to any Underwritten
Offering under the Shelf Registration Statement except to the extent the same
are explicitly stated not to apply in an underwriting agreement to which the
Selling Holders in such Underwritten Offering are parties.
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, during any period in
which the Company is not subject to Section 13 or 15(d) of the Exchange Act, to
make available to the Holders in connection with any sale of Transfer Restricted
Securities and any prospective purchaser (identified as such in a written notice
to the Company from the Selling Holder) of such Transfer Restricted Securities,
the information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 9. PARTICIPATION IN UNDERWRITTEN OFFERINGS
No Holder may participate in any Underwritten Offering hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements, (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements and (c) furnishes the Company in writing all information reasonably
requested in
18
accordance with Section 3(g) hereof and agrees in writing to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the extent
contemplated by Section 7(c) hereof.
SECTION 10. SELECTION OF UNDERWRITERS
Subject to the other provisions of this Agreement, the Holders of
Transfer Restricted Securities covered by the Shelf Registration Statement who
desire to do so may sell such Transfer Restricted Securities in an Underwritten
Offering. In any such Underwritten Offering, the Underwriter(s) that will
administer the offering will be selected by the Holders of the Transfer
Restricted Securities included in such offering in the manner specified in
Section 3(c) hereof; PROVIDED, HOWEVER, that such Underwriter(s) must be
reasonably satisfactory to the Company.
SECTION 11. MISCELLANEOUS
(a) REMEDIES. Each Holder of Transfer Restricted Securities, in
addition to being entitled to exercise all rights provided herein, and as
provided in the Purchase Agreement (for any Holders who are parties thereto) and
granted by applicable law, including recovery of damages, will be entitled to
specific performance of such Holder's rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any 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 Transfer Restricted Securities affected by such amendment,
modification, supplement, waiver or departure (with Holders of Common Stock
constituting Transfer Restricted Securities being deemed to be such Holders of
the aggregate principal amount of Notes converted into such Common Stock for
purposes of such calculation). Notwithstanding the foregoing, a waiver or
consent to departure from the
19
provisions hereof that relates exclusively to the rights of Holders of Transfer
Restricted Securities whose securities are being sold pursuant to the Shelf
Registration Statement and that does not directly or indirectly affect the
rights of other Holders shall be valid only with the written consent of Holders
of at least 66-2/3% of Transfer Restricted Securities being sold, calculated as
aforesaid.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder of Transfer Restricted Securities,
initially at the address set forth on the records of the Registrar
under the Indenture or Transfer Agent for Common Stock and
thereafter at such address or at any address provided by such Holder
to the Company pursuant to the provisions of Section 3(g) hereof,
with a copy to the Registrar; and
(ii) if to the Company or an Initial Purchaser, initially at
its address set forth in the Purchase Agreement and thereafter at
such other address, notice of which is given in accordance with the
provisions of this Section.
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 acknowledged, if telecopied; and on
the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; PROVIDED, HOWEVER, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder; and provided further that nothing herein shall be
deemed to permit any assignment, transfer or any disposition of Transfer
Restricted Securities in violation of the terms of the Purchase Agreement. If
any transferee of any Holder shall acquire Transfer Restricted Securities, in
any manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement and by
taking and holding such Transfer Restricted Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
20
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTACTS MADE
AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.
(i) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the securities sold pursuant to the Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
AMERICAN RESIDENTIAL SERVICES, INC.
By: ________________________________
C. Xxxxxxxx Xxxxxx, Xx.
President and Chief Executive Officer
XXXXX XXXXXX INC.
XXXXXXX, XXXXX & CO.
XXXXXXXXXX SECURITIES
By: Xxxxx Xxxxxx Inc.
By: _______________________
Xxxxx Xxxxxxxx
Managing Director
