REGISTRATION RIGHTS AGREEMENT
Dated as of March 6, 1997
relating to
3 1/4% Convertible Subordinated Notes due 2002
by and between
XXX Xxxxxxxxxxx
and
Xxxxx Xxxxxx Inc.,
Alex. Xxxxx & Sons Incorporated
and
Xxxxxx Xxxxxxx & Co. Incorporated
as Initial Purchasers
This Registration Rights Agreement (the "Agreement") is made and entered
into as of March 6, 1997, by and between XXX Xxxxxxxxxxx, a Massachusetts
corporation (the "Company") and Xxxxx Xxxxxx Inc., Xxxx. Xxxxx & Sons
Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated (the "Initial Purchasers"),
who have purchased the 3 1/4% Convertible Subordinated Notes due 2002 (the
"Notes") of the Company pursuant to the Purchase Agreement, dated March 6, 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:
Act: The Securities Act of 1933, as amended.
Closing Date: The date on which all 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 $.01 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.
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 Act), (ii) to a limited number of other
"accredited investors," as defined in Rule 501 (a)(1),(2), (3) or (7) under the
Act that are institutional investors and (iii) to certain persons in offshore
transactions in reliance on Regulation S under the Act.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of March 11, 1997, between the
Company and State Street Bank and Trust Company 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 6, 1997, and
all amendments and supplements thereto, relating to the Notes and prepared by
the Company pursuant to the Purchase Agreement.
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 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 material 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 Register 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.
Shelf Registration Statement: As defined in Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section
77aaa-77bbbb) as in effect on 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 each such Note or share
(i) has been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement covering it, (ii) is
distributed to the public pursuant to Rule 144 or (iii) may be sold or
transferred pursuant to Rule 144(k) (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 Registration or Underwritten Offering: An offering in which
securities of the Company are sold to an Underwriter or with the assistance of
such Underwriter for reoffering to the public on a firm commitment or best
efforts basis.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The 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 owns 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 Act (as may then be amended) (the "Shelf Registration
Statement") on Form S-1 or Form S-3, if the use of such form is then available
and as determined by the Company, to cover resales of Transfer Restricted
Securities by the Holders thereof who satisfy certain conditions relating to the
provision of information in connection with the Shelf Registration Statement.
In order for their Transfer Restricted Securities to be included in the Shelf
Registration Statement, the Holders of such Transfer Restricted Securities shall
have provided the representations required pursuant to Section 3(g) hereof. The
Company shall use its reasonable best efforts to cause such 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 such Shelf Registration Statement continuously effective for a period
ending three years following 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. The
Company further agrees to use its reasonable best efforts to prevent the
happening of any event that would cause the Shelf Registration Statement 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 to be not effective and usable for resale of the Transfer
Restricted Securities during the period that such Shelf Registration Statement
is required to be effective and usable.
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 that such Shelf
Registration Statement is required to be effective and usable, the Company shall
as promptly as practicable file an amendment to the Shelf Registration
Statement, in the case of clause (i), correcting any such misstatement or
omission, and in the case of either clause (i) or (ii), use its best efforts to
cause such amendment to be declared effective and such Shelf Registration
Statement to become usable as soon as reasonably practicable thereafter.
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Notwithstanding anything to the contrary in this Section 3, subject to
compliance with Sections 4 and 5(b), if applicable, the Company may prohibit
offers and sales of Transfer 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 (based on advice of counsel) 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 not be in the best 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 not in the best 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 which the Company provides written notice to Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement that offers
and sales of Transfer Restricted Securities cannot be made thereunder 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)
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 of Transfer Restricted Securities in such capacity) shall have the right
to include any of the Company's securities in the Shelf Registration Statement.
(c) If the Holders of a majority of the Transfer Restricted Securities to
be covered by the Shelf Registration Statement so elect (with holders of Common
Stock constituting Transfer Restricted Securities being deemed to be Holders of
the aggregate principal amount of Notes converted into such Common Stock for
purposes of such calculation), an offering of Transfer Restricted Securities
pursuant to the Shelf Registration Statement may be effected in the form of an
Underwritten Offering; provided that the Company shall not be obligated to
--------
arrange for more than one underwritten offering during the period the Shelf
Registration Statement is required to be effective pursuant to Section 3(a). In
such event, and if the Underwriter(s) advise(s) the Company and the Holders of
such Transfer Restricted Securities in writing that in their opinion the amount
of Transfer Restricted Securities proposed to be sold in such offering exceeds
the amount or number of Transfer Restricted Securities which can be sold in such
offering, there shall be included in such Underwritten Offering the amount or
number of such Transfer Restricted Securities which in the opinion of such
Underwriters can be sold, and such amount or number of shares shall be allocated
pro rata among the Holders of such Transfer Restricted Securities on the basis
of the principal amount or number of shares of Transfer
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Restricted Securities requested to be included by such Holders. The Holders of
the Transfer Restricted Securities to be registered shall pay all underwriting
discounts and commissions of such Underwriter(s) and expenses of counsel to such
Holders of Transfer Restricted Securities in connection with 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 Holders
of a majority of the Transfer Restricted Securities to be covered by such Shelf
Registration Statement (with holders of Common Stock constituting Transfer
Restricted Securities being deemed to be Holders of the aggregate principal
amount of Notes converted into such 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 a
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, during the 45-day
period beginning on the date any such Underwritten Offering commences, to the
extent timely notified in writing by such Underwriter(s).
(f) The Company agrees not to effect any public or private offer, sale or
distribution of securities of the same quality and nature as the Transfer
Restricted Securities to be registered in an Underwritten Offering during the
10-day period prior to and during the 45-day period beginning on the date any
such Underwritten Offering made pursuant to the Shelf Registration Statement
commences, to the extent timely notified in writing by the Underwriter(s)
(except as part of such registration, if permitted, or pursuant to registrations
on Forms S-4 or S-8 or any successor form to such Forms), unless the
Underwriter(s) shall consent in writing to a shorter period of time (such
consent not to be unreasonably withheld or delayed); provided, however, that any
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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 or director stock option plan, stock purchase plan,
stock ownership plan or dividend reinvestment plan of the Company in effect on
the 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, (C) the
issuance by the Company of shares of Common Stock or securities convertible into
or exchangeable for shares of Common Stock to existing shareholders of the
Company under a shareholder rights plan and (D) the issuance by the Company of
Common Stock, securities convertible into or exercisable or exchangeable for
Common Stock or options or warrants to purchase Common Stock as consideration
for the acquisition of a business or businesses; provided that any Common Stock
issued pursuant to clause (D) (whether directly or upon conversion or exercise
or exchange of any other securities) shall be subject to transfer restrictions
comparable to those applicable to the Transfer Restricted Securities during such
45-day period.
(g) No Holder of Transfer Restricted Securities may include any of its
Transfer Restricted Securities in any Shelf Registration Statement pursuant to
this Agreement unless such Holder furnishes to the Company in writing, within 10
business days after receipt of
5
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 therein.
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 applicable
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 any
additional Shelf Registration Statement filed and declared effective) or useable
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 of Transfer Restricted Securities who has complied with
such Holder's obligations under this Agreement, which liquidated damages shall
constitute the sole monetary liability of the Company with respect to any such
Registration Default. The amount of liquidated damages payable during any
period during which a Registration Default shall have occurred and be continued
is that amount which is equal to one-quarter of one percent (25 basis points)
per annum per $1,000 principal amount of Notes or $2.50 per annum, per 22.0702.
shares of Common Stock (subject to adjustment in the event of stock splits,
stock recombinations, stock dividends 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 amount of liquidated damages of
$0.25 per week per $1,000 principal amount of Notes or $12.50 per annum per
22.0702 shares of Common Stock (subject to adjustment as set forth above)
constituting Transfer Restricted Securities. The Company shall notify the
Trustee and the Initial Purchasers within three business days after the
occurrence of each and every Registration Default. All accrued liquidated
damages shall be paid to Record Holders by wire transfer of immediately
available funds or by federal funds check by the Company on each Damages Payment
Date. Following the cure of all Registration Defaults, liquidated damages will
cease to accrue with respect to such Registration Default.
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.
The parties hereto agree that the liquidated damages provided in this
Section 4 constitute a reasonable estimate of the damages that will be incurred
by Holders of Transfer Restricted Securities by reason of the failure of the
Shelf Registration Statement to be filed, declared effective, or to remain
effective as the case may be.
6
SECTION 5. REGISTRATION PROCEDURES
In connection with the Shelf Registration Statement, the Company will
use its 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 as expeditiously as possible after the Closing Date:
(a) on or prior to the date 60 days after the Closing Date, prepare
and file with the Commission a Shelf Registration Statement relating to the
registration on Form S-1 or Form S-3, if the use of such form is then available
and as determined by the Company, for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of distribution
thereof and shall include all financial statements required to be included or
incorporated by reference therein; cooperate and assist in any filings required
to be made with the NASD and use its reasonable best efforts to cause such Shelf
Registration Statement to become effective 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 to permit the selling
Holders to consummate the disposition of such Transfer Restricted Securities;
provided, however, that before filing a Shelf Registration Statement or any
Prospectus, or any amendments or supplements thereto, the Company will furnish
to the Initial Purchasers, counsel to the Holders 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 an Initial Purchaser, counsel
to the Holders or an Underwriter 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 Initial Purchasers, counsel to the Holders
or the Underwriter(s), if any, shall reasonably object, in each such case within
five business days after the receipt thereof. An Initial Purchaser, counsel to
the Holders or an 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 to the Company in
writing within such five business days;
(b) 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 as will terminate when all
Transfer Restricted Securities covered by such Shelf Registration Statement have
been sold; 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 Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all securities covered
by such Shelf Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the sellers thereof set
forth in such Shelf Registration Statement, Prospectus or Prospectus Supplement;
7
(c) if requested by the Holders of Transfer Restricted Securities, 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 information as the Underwriters and/or the
Holders of Transfer Restricted Securities being sold agree 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;
(d) advise the Initial Purchasers, Underwriter(s), if any, and
selling Holders promptly and, if requested by such Persons, to 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 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 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 the preceding purposes, (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
in the Shelf Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the 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 possible 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;
(f) furnish to each Initial Purchaser, 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, including all documents incorporated by reference therein and
all exhibits (excluding exhibits to documents incorporated by reference therein
unless requested by such Initial Purchaser, Holder or Underwriter);
8
(g) deliver to each Initial Purchaser, each selling Holder 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 of the selling Holders and each of the Underwriter(s), if any,
in connection with the public offering and the sale of the Transfer 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 selling Holders, 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 the selling Holders or Underwriter(s) may request and do any
and all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted 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 or (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;
(i) cooperate with the selling Holders and the Underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to be in
such denominations and registered in such names as the Holders or the
Underwriter(s), if any, may request at least two business days prior to any sale
of Transfer Restricted Securities;
(j) use its best efforts to cause the Transfer Restricted Securities
covered by the Shelf Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the Underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso
contained in clause (h) above;
(k) 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;
(l) 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;
9
(m) enter into such agreements (including an underwriting agreement)
and take all such other actions in connection therewith as may reasonably be
required in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to the Shelf Registration Agreement, in
connection with an Underwritten Registration, and (i) make such representations
and warranties to the Holders and 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 and covering matters including,
but not limited to, those set forth in the Purchase Agreement; (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 Underwriters in connection with primary
Underwritten Offerings addressed to each selling Holder and the Underwriter
requesting the same and covering the matters as may be reasonably requested by
such Holders and Underwriters; (iii) obtain "comfort" letters and updates
thereof from the Company's independent certified public accountants addressed to
the selling Holders of Transfer Restricted Securities and the Underwriters
requesting the same, such letters to be in customary form and covering matters
of the type customarily covered in "comfort" letters to Underwriters in
connection with primary Underwritten Offerings; (iv) set forth in full or
incorporate by reference in the underwriting agreement the indemnification
provisions and procedures of Section 7 hereof with respect to all parties to be
indemnified pursuant to said Section; and (v) 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 (m). The above shall be done at or prior to each closing
under such underwriting agreement, as and to the extent required thereunder;
(n) make available at reasonable times and in a reasonable manner for
inspection by a representative of the Holders of the Transfer Restricted
Securities, any Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, and any attorney or accountant retained by such
selling Holders or any of the Underwriters, all relevant 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 representative, 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;
(o) 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, but in any event not later than
15 months after the effective date of the Shelf
10
Registration Statement, a consolidated earnings statement, which consolidated
earnings statement shall satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act;
(p) 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;
(q) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement as soon
as practicable;
(r) 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 Holders of a majority of the outstanding Transfer Restricted
Securities (with Holders of Common Stock constituting Transfer Restricted
Securities being deemed to be Holders of the aggregate principal amount of notes
converted into such Common Stock for purposes of such calculation) or the
Underwriters, 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
Underwriters; and
(s) 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 as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading or necessary to cause such
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 such 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)(v) 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(k) 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.
SECTION 6. REGISTRATION EXPENSES
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(a) Except as set forth herein, 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 and expenses (including filings
made with the NASD);
(ii) fees and expenses of compliance with federal securities or state
blue sky laws;
(iii) expenses of printing (including, without limitation, 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), messenger and delivery services and
telephone;
(iv) reasonable fees and disbursements of counsel for the Company and
for the Holders of the Transfer Restricted Securities (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
"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);
(vi) fees and expenses associated with any NASD filing required to be
made in connection with the Shelf Registration Statement, including, if
applicable, the fees and expenses of any "qualified independent Underwriter"
(and its counsel in such capacity) that is required to be retained in accordance
with the rules and regulations of the NASD; and
(vii) 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 Transfer Restricted Securities shall
bear the expense of any broker's commission or Underwriters' 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 such Shelf Registration Statement for the fees and disbursements of
not more than one counsel chosen by the Holders of a majority of the Transfer
Restricted Securities to be included in the Shelf Registration Statement (with
holders of Common Stock constituting Transfer Restricted Securities being deemed
to be Holders of the aggregate principal amount of Notes converted into such
Common Stock for purposes of such calculation).
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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 (i) each Initial
Purchaser, (ii) each Holder, (iii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) any of the
Initial Purchasers or any Holder (any of the persons referred to in this clause
(iii) being hereinafter referred to as a "controlling person") and (iv) the
respective officers, directors, employees, representatives and agents of any of
the Initial Purchasers or any Holder or any controlling person (any person
referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as
a "Non-Company Indemnitee"), to the fullest extent lawful 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, defending or settling any such action or claim) as they are
incurred arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration Statement,
Prospectus or Preliminary Prospectus (or any amendment or supplement thereto),
including any document incorporated by reference therein, 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, with respect to any Non-Company Indemnitee, insofar as such
losses, claims, damages, judgments, liabilities or expenses (i) arise out of, or
are based upon, any such untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with information relating to such Non-Company
Indemnitee furnished in writing by or on behalf of such Non-Company Indemnitee
to the Company expressly for use therein or (ii) with respect to any Preliminary
Prospectus, results solely from the fact that such Non-Company Indemnitee 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 final
Prospectus as then amended or supplemented, if the Company shall have previously
furnished sufficient copies thereof to the Non-Company Indemnitee in accordance
with this Agreement and the final Prospectus, as amended or supplemented, would
have corrected such untrue statement or omission.
(b) If any action, suit or proceeding shall be brought against any Non-
Company Indemnitee with respect to which indemnity may be sought against the
Company pursuant to this Section 7, such Non-Company Indemnitee shall promptly
notify the Company in writing, and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Non-Company
Indemnitee and payment of all fees and expenses. Such Non-Company Indemnitee
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Non-Company Indemnitee unless
(i) the Company agrees in writing to pay such fees and expenses, (ii) the
Company has failed to assume the defense and employ counsel reasonably
satisfactory to the Non-Company Indemnitee or (iii) the named parties to any
such action, suit or proceeding (including any impleaded parties) include both
the Non-Company Indemnitee and the Company and the Company and such Non-Company
Indemnitee shall have been advised by its counsel that representation of such
Non-Company
13
Indemnitee and the Company by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel 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, suit or proceeding on behalf of such Non-
Company Indemnitee, it being understood, however, that the Company shall not, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such Non-Company Indemnitees,
which firm shall be designated in writing by the Non-Company Indemnitees, and
that all such fees and expenses shall be reimbursed as they are incurred. The
Company shall not be liable for any settlement of any such action, suit or
proceeding 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 for the
plaintiff in any such action, the Company agrees to indemnify and hold harmless
each Non-Company Indemnitee to the extent provided in paragraph (a) from and
against any amounts payable by reason of such settlement or judgment. The
Company shall not, without the prior written consent of each Non-Company
Indemnitee affected thereby (such consent not to be unreasonably withheld or
delayed), effect any settlement of any pending or threatened proceeding in which
such Non-Company Indemnitee is or could have been a party and indemnity could
have been sought hereunder, unless such settlement includes an unconditional
release of such Non-Company Indemnitee from all liability arising out of such
action or proceeding.
(c) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless (i) the Company, (ii) each of the
Initial Purchasers, (iii) each other Holder, (iv) any person controlling (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Company, any of the Initial Purchasers and each other Holder and (v) the
respective officers, directors, employees, representatives and agents of each of
the parties referred to in clauses (i), (ii), (iii), and (iv) (collectively the
"Company Indemnified Parties") to the same extent as the foregoing indemnity
from the Company to any Non-Company Indemnitee, but only with respect to
information relating to such Holder furnished in writing by or on behalf of such
Holder, expressly for use in the Registration Statement, Prospectus (or any
amendment or supplement thereto), or any Preliminary Prospectus. If any action,
suit or proceeding 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 Holder of Transfer Restricted Securities pursuant to
this Section 7(c), each such Holder of Transfer Restricted Securities shall have
the rights and duties given to the Company by Section 7(b) (except that if the
Company shall have assumed the defense thereof, each such Holder of Transfer
Restricted Securities 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 such Holder of Transfer Restricted
Securities) and the Company Indemnified Parties shall have the rights and duties
given to the Non-Company Indemnitees by Section 7(b). In no event shall the
liability of any selling Holder hereunder be greater in amount than the dollar
amount of the
14
proceeds received by such Holder upon the sales of the Transfer Restricted
Securities giving rise to such indemnification obligation.
(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) in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, 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 fault of the
Company on the one hand and each Holder of Transfer Restricted Securities on the
other hand 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 fault of the Company on
the one hand and each Holder of Transfer Restricted Securities on the other hand
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 the Holder of Transfer Restricted Securities on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to Section 7(d)
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). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, judgments, liabilities or expenses referred to in
Section 7(d) 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 any claim or defending any such action , suit
or proceeding prior to the indemnifying party's assumption of the defense
thereof or subsequent thereto to the extent permitted by the second sentence of
Section 7(b) hereof. Notwithstanding the provisions of this Xxxxxxx 0, xxxx of
the Holders shall be required to contribute, in the aggregate, any amount in
excess of the amount by which the total amount received by such Holder with
respect to the sale of Transfer Restricted Securities exceeds the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 7(d) are several in proportion to the respective
principal amount of Notes held by each of the Holders hereunder and not joint.
(f) The indemnity and contribution agreements contained in this Section 7
are in addition to any liability that any indemnifying party may otherwise have
to any indemnified party.
(g) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have
15
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 action, suit or proceeding.
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long as any of the
Notes or shares of Common Stock that are Transfer Restricted Securities remain
outstanding and during any such period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act, to make available to the Initial
Purchasers or any beneficial owner of the Notes or shares of such Common Stock
in connection with any sale thereof and any prospective purchaser of such Notes
or Common Stock from such Initial Purchaser or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
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 information in accordance with Section 3(g)
and 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 Act or Section 20 of the
Exchange Act to the extent contemplated by Section 7(c).
SECTION 10. 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 and granted by 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.
(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 of Transfer
Restricted Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders of Transfer Restricted
Securities 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
16
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
outstanding 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 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 provisions hereof that relates exclusively to the
rights of Holders of Transfer Restricted Securities whose securities are being
sold pursuant to such Shelf Registration Statement and that does not directly or
indirectly affect the rights of other Holders of Transfer Restricted Securities
shall be valid only with the written consent of Holders of at least a majority
of the 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, at the address
set forth on the records of the Registrar under the Indenture, 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 of Transfer Restricted Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder of Transfer Restricted Securities 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
17
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(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.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXX XXXXXXXXXXX
By:
--------------------------------
Name:
Title:
XXXXX XXXXXX INC.
ALEX, XXXXX & SONS INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
By: XXXXX XXXXXX INC.
By:
--------------------------------
Name:
Title:
19