Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
Dated as of March 19, 1998
by and among
HIGH VOLTAGE ENGINEERING CORPORATION
and
CIBC XXXXXXXXXXX CORP.,
as Initial Purchaser
TABLE OF CONTENTS
Page
1. Definitions.............................................................. 1
2. Exchange Offer........................................................... 5
3. Shelf Registration....................................................... 9
(a) Initial Shelf Registration......................................... 9
(b) Subsequent Shelf Registrations..................................... 9
(c) Supplements and Amendments.........................................10
4. Additional Interest......................................................10
5. Registration Procedures..................................................12
6. Registration Expenses....................................................23
7. Indemnification..........................................................24
8. Rules 144 and 144A.......................................................28
9. Underwritten Registrations...............................................28
10. Miscellaneous............................................................29
(a) Remedies...........................................................29
(b) Enforcement .......................................................29
(c) No Inconsistent Agreements.........................................29
(d) Adjustments Affecting Registrable Notes ...........................29
(e) Amendments and Waivers.............................................30
(f) Notices ...........................................................30
(g) Successors and Assigns.............................................31
(h) Counterparts.......................................................31
(i) Headings...........................................................31
(j) Governing Law .....................................................31
(k) Severability.......................................................31
(l) Entire Agreement...................................................32
(m) Notes Held by the Company or Its Affiliates .......................32
i
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as
of March 19, 1998, by and among HIGH VOLTAGE ENGINEERING CORPORATION, a
Massachusetts corporation (the "Company"), and CIBC XXXXXXXXXXX CORP. (the
"Initial Purchaser").
This Agreement is entered into in connection with the
Securities Purchase Agreement, dated as of March 16, 1998, by and among the
Company and the Initial Purchaser (the "Purchase Agreement") relating to the
sale by the Company to the Initial Purchaser of $20,000,000 aggregate
principal amount of 10 1/2% Senior Notes due 2004 of the Company (the "Notes").
On August 8, 1997, the Company issued $135,000,000
aggregate principal amount of its 10 1/2% Senior Notes due 2004 (the "Original
Notes") under the Indenture (as defined herein). On January 16, 1998, the
Company exchanged $134,500,000 aggregate principal amount of the Original
Notes for 10 1/2% Senior Notes due 2004 (the "Registered Existing Notes")
registered under the Securities Act (as defined herein). The Notes are being
issued pursuant to a supplement to the Indenture and are identical to the
Registered Existing Notes other than the issue date and except that the Notes
are subject to certain transfer restrictions and are entitled to the benefit
of this Agreement.
In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchaser. The
execution and delivery of this Agreement is a condition to the Initial
Purchaser's obligation to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have
the following meanings:
Additional Interest: See Section 4(a).
Advice: See Section 5.
Applicable Period: See Section 2(b).
Closing: See the Purchase Agreement.
Company: See the introductory paragraph to this Agreement.
Effectiveness Date: The 135th day after the Issue Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC
promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: The 45th day after the Issue Date.
Holder: Any holder of a Registrable Note or Registrable
Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of August 8, 1997, by
and between the Company and State Street Bank and Trust Company, as trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Initial Purchaser: See the introductory paragraph to this
Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date on which the Notes are originally
sold to the Initial Purchaser pursuant to the Purchase Agreement.
Lien: See the Indenture.
NASD: See Section 5(t).
2
Notes: See the introductory paragraphs to this Agreement.
Original Notes: See the introductory paragraph to this
Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See Section 2(b).
Person: An individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government (including any agency or political subdivision thereof).
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Notes covered by such Registration
Statement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs to
this Agreement.
Records: See Section 5(o).
Registered Existing Notes: See the introductory
paragraphs to this Agreement.
Registrable Notes: The Notes upon original issuance of
the Notes and at all times subsequent thereto and, if issued, the Private
Exchange Notes, until in the case of any such Notes or any such Private
Exchange Notes, as the case may be, (i) a Registration Statement covering such
Notes or such Private Exchange Notes has been declared effective by the SEC
and such Notes or such Private Exchange Notes, as the case may be, have been
disposed of in accordance with such effective Xxxxxxxxxxxx
0
Xxxxxxxxx, (xx) such Notes or such Private Exchange Notes, as the case may be,
are sold in compliance with Rule 144, (iii) in the case of any Note, the
Exchange Offer has been consummated, (iv) such Notes or such Private Exchange
Notes, as the case may be, cease to be outstanding or (v) two years have
passed from the Issue Date.
Registration Default: See Section 4(a).
Registration Statement: Any registration statement of the
Company, including, but not limited to, the Exchange Registration Statement,
which covers any of the Registrable Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in offers and sales
by subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
Rule 144A: Rule 144A promulgated under the Securities
Act, as such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
4
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if
existent, the trustee under any indenture governing the Exchange Notes and
Private Exchange Notes (if any).
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter(s)
for reoffering to the public.
2. Exchange Offer
(a) The Company agrees to use its best efforts to file
with the SEC as soon as practicable after the Closing, but in no event later
than the Filing Date, an offer to exchange (the "Exchange Offer") any and all
of the Notes for a like aggregate principal amount of debt securities of the
Company which are identical to the Notes (the "Exchange Notes") (and which are
entitled to the benefits of the Indenture or a trust indenture which is
substantially identical to the Indenture (other than such changes to the
Indenture or any such identical trust indenture as are necessary to comply
with any requirements of the SEC to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA), except that the Exchange Notes shall have been registered pursuant to an
effective Registration Statement under the Securities Act. The Exchange Offer
will be registered under the Securities Act on an appropriate form (the
"Exchange Registration Statement") and will comply with all applicable tender
offer rules and regulations under the Exchange Act. The Company agrees to use
its best efforts to (x) cause the Exchange Registration Statement to become
effective under the Securities Act on or before the Effectiveness Date; (y)
keep the Exchange Offer open for at least 30 days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed to
Holders; and (z) consummate the Exchange Offer on or prior to the 60th day
following the date on which the Exchange Registration Statement is declared
effective. The Company will use its best efforts to effect the Exchange Offer
in a manner such that, upon consummation of the Exchange Offer, the Notes and
the Registered Existing Notes will have the same CUSIP number; provided, (i)
purchasers are required to buy the Notes with interest accrued from February
15, 1998, the last date on which interest was paid on the Registered Existing
Notes and (ii) the Notes are not issued with original issue discount and the
Exchange Offer must be consummated. Each Holder who participates in the
Exchange Offer will be required to represent that any Exchange Notes received
by it
5
will be acquired in the ordinary course of its business, that at the time of
the consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any person to participate in the distribution of the
Exchange Notes, and that such Holder is not an affiliate of the Company within
the meaning of Rule 405 promulgated under the Securities Act or if it is such
an affiliate, that it will comply with the registration and prospectus
delivery requirements of the Securities Act, to the extent applicable. Upon
consummation of the Exchange Offer in accordance with this Section 2, the
provisions of this Agreement shall continue to apply, mutatis mutandis, solely
with respect to Registrable Notes that are Private Exchange Notes and Exchange
Notes held by Participating Broker-Dealers (as defined below), and the Company
shall have no further obligation to register Registrable Notes (other than
Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers) pursuant to Section 3 of this Agreement.
(b) The Company shall include within the Prospectus
contained in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchaser, which shall
contain a summary statement of the positions taken or policies made by the
staff of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3
promulgated under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether
such positions or policies have been publicly disseminated by the staff of the
SEC or such positions or policies, in the reasonable judgment of the Initial
Purchaser, represent the prevailing views of the staff of the SEC. Such "Plan
of Distribution" section shall also allow the use of the Prospectus by all
persons subject to the prospectus delivery requirements of the Securities Act,
including all Participating Broker-Dealers, and include a statement describing
the means by which Participating Broker-Dealers may resell the Exchange Notes.
The Company shall use its best efforts to keep the
Exchange Registration Statement effective and to amend and supplement the
Prospectus contained therein, in order to permit such Prospectus to be
lawfully delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons
must comply with such requirements in order to resell the Exchange Notes,
provided that such period shall not exceed 180 days (or such longer period if
extended pursuant to the last paragraph of Section 5)
6
after the date of the consummation of the Exchange Offer (the "Applicable
Period").
If, prior to consummation of the Exchange Offer, the
Initial Purchaser holds any Notes acquired by it and having, or which are
reasonably likely to be determined to have, the status of an unsold allotment
in the initial distribution, the Company upon the request of such Initial
Purchaser shall, simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (the
"Private Exchange") for the Notes held by such Initial Purchaser, a like
principal amount of debt securities of the Company that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and
which are issued pursuant to the same indenture as the Exchange Notes). The
Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and any Private Exchange Notes will accrue
from (A) the later of (i) the last interest payment date on which interest was
paid on the Notes surrendered in exchange therefor or (ii) if the Notes are
surrendered for exchange on a date in a period which includes the record date
for an interest payment date to occur on or after the date of such exchange
and as to which interest will be paid, the date of such interest payment date
or (B), if no interest has been paid on the Notes, from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) utilize the services of a depository for the Exchange
Offer with an address in Boston, Massachusetts; and
(iii) permit Holders to withdraw tendered Notes at any
time prior to the close of business, New York time, on the last
business day on which the Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange
Offer or the Private Exchange, as the case may be, the Company shall:
7
(i) accept for exchange all Notes tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver
promptly to each Holder of Notes, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount
to the Notes of such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture substantially identical to
the Indenture, which in either event will provide that the Exchange Notes will
not be subject to the transfer restrictions set forth in the Indenture and
that the Exchange Notes, the Private Exchange Notes and the Notes will vote
and consent together, to the extent provided by the Indenture, on all matters
as one class and that neither the Exchange Notes, the Private Exchange Notes
nor the Notes will have the right to vote or consent as a separate class on
any matter.
(c) If (1) prior to the consummation of the Exchange
Offer, the Company or Holders of at least a majority in aggregate principal
amount of the Registrable Notes reasonably determine in good faith that (i)
the Exchange Notes would not, upon receipt, be tradable by such Holders which
are not affiliates (within the meaning of the Securities Act) of the Company
without restriction under the Securities Act and without restrictions under
applicable state securities laws or (ii) after conferring with counsel, the
SEC is unlikely to permit the consummation of the Exchange Offer prior to 60
days after the Effectiveness Date, (2) subsequent to the consummation of the
Private Exchange, any holder of the Private Exchange Notes so requests, or (3)
the Exchange Offer is commenced and not consummated within 195 days of the
date of this Agreement, then the Company shall promptly deliver to the Holders
and the Trustee written notice thereof (the "Shelf Notice") and shall file an
Initial Shelf Registration pursuant to Section 3. Following the delivery of a
Shelf Notice to the Holders of Registrable Notes (in the circumstances
contemplated by clauses (1) and (3) of the preceding sentence), the Company
shall not have any further obligation to conduct the Exchange Offer or the
Private Exchange under this Section 2.
8
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section
2(c), then:
(a) Initial Shelf Registration. The Company shall
prepare and file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the
Registrable Notes (the "Initial Shelf Registration"). The Company shall use
its best efforts to file with the SEC the Initial Shelf Registration within 30
days of the delivery of the Shelf Notice. The Initial Shelf Registration
shall be on Form S-1 or another appropriate form permitting registration of
such Registrable Notes for resale by such Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings). The Company shall not permit any securities other than the
Registrable Notes to be included in the Initial Shelf Registration or any
Subsequent Shelf Registration (as defined below), other than any securities
requested by the holders thereof to be included in such registration pursuant
to that Registration Rights and Stockholders Agreement, dated as of May 9,
1996, among the Company, Xxxxxxx Corporation, a Delaware corporation, and the
purchasers of the Company's Senior Subordinated Notes due 2004 in an aggregate
principal amount of $25,000,000 and warrants to purchase shares of the Common
Stock, $.01 par value per share, of the Company. The Company shall use its
best efforts to cause the Initial Shelf Registration to be declared effective
under the Securities Act on or prior to the Effectiveness Date and to keep the
Initial Shelf Registration continuously effective under the Securities Act
until two years from the Issue Date (the "Effectiveness Period"), or such
shorter period ending when (i) all Registrable Notes covered by the Initial
Shelf Registration have been sold in the manner set forth and as contemplated
in the Initial Shelf Registration or (ii) a Subsequent Shelf Registration
covering all of the Registrable Notes has been declared effective under the
Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for
any reason at any time during the Effectiveness Period (prior to the sale of
all of the securities registered thereunder), the Company shall use its best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Shelf Registration in a manner reasonably expected
to obtain the withdrawal of the
9
order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Notes (a "Subsequent Shelf Registration"). In the event that the Company
becomes eligible to use any form other than form S-1 for a Subsequent Shelf
Registration, if permitted under applicable law, the Company shall be entitled
to cause a Subsequent Shelf Registration to be substituted for the Initial
Shelf Registration. If a Subsequent Shelf Registration is filed, the Company
shall use its best efforts to cause the Subsequent Shelf Registration to be
declared effective as soon as practicable after such filing and to keep such
Registration Statement continuously effective during the Effectiveness Period.
As used herein the term "Shelf Registration" means the Initial Shelf
Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company shall
promptly supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or by any
underwriter(s) of such Registrable Notes.
4. Additional Interest
(a) The Company and the Initial Purchaser agree that the
Holders of Registrable Notes will suffer damages if the Company fails to
fulfill its obligations under Section 2 or Section 3 hereof and that it would
not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company agrees to pay additional interest on the Notes
("Additional Interest") under the circumstances set forth below:
(i) if the Exchange Registration Statement has not been
filed on or prior to the Filing Date or the Initial Shelf
Registration has not been filed within 30 days following the
delivery of a Shelf Notice prior to the filing date;
(ii) if neither the Exchange Registration Statement nor
the Initial Shelf Registration has been declared effective on
or prior to the Effectiveness Date; and/or
(iii) if either (A), if applicable, the Company has
not exchanged the Exchange Notes for all Notes validly
10
tendered in accordance with the terms of the Exchange Offer on
or prior to 60 days after the date on which the Exchange
Registration Statement was declared effective or (B) , if
applicable, the Exchange Registration Statement ceases to be
effective at any time prior to the time that the Exchange Offer
is consummated or (C) if applicable, the Shelf Registration has
been declared effective and such Shelf Registration ceases to
be effective at any time prior to the earlier of the date on
which all Registrable Notes covered by the Shelf Registration
have been sold in the manner set forth and as contemplated in
the Shelf Registration or the second anniversary of the Issue
Date;
(each such event referred to in clauses (i) through (iii) above is a
"Registration Default"), the sole remedy available to holders of the Notes
will be the immediate accrual of Additional Interest as follows: the per
annum interest rate on the Notes will increase by 0.5% upon the occurrence of
the first Registration Default; and the per annum interest rate will increase
by an additional 0.25% for each subsequent 90-day period during which any
Registration Default remains uncured, up to a maximum additional interest rate
of 2.0% per annum for all Registration Defaults, provided, however, that (1)
upon the filing of the Exchange Registration Statement or the Initial Shelf
Registration (in the case of (i) above), (2) upon the effectiveness of the
Exchange Registration Statement or a Shelf Registration (in the case of (ii)
above) or (3) upon the exchange of Exchange Notes for all Notes tendered (in
the case of (iii)(A) above), or upon the effectiveness of the Exchange
Registration Statement which had ceased to remain effective (in the case of
(iii)(B) above), or upon the effectiveness of the Shelf Registration which had
ceased to remain effective (in the case of (iii)(C) above), Additional
Interest on the Notes as a result of such clause (i), (ii) or (iii) (or the
relevant subclause thereof), as the case may be, shall cease to accrue and the
interest rate on the Notes will revert to the interest rate originally borne
by the Notes and provided, further, that in the case of a Registration Default
under (iii)(c) above, Additional Interest will only be payable with respect to
Notes so long as they are Registrable Notes.
(b) The Company shall notify the Trustee within one
business day after each and every date on which an event occurs in respect of
which Additional Interest is required to be paid (an "Event Date"). Any
amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of
this Section 4 will be payable in cash semi-annually on each February 1 and
August 1 (to the Holders of record on the January 15 and July 15 immediately
11
preceding such dates), commencing with the first such date occurring after any
such Additional Interest commences to accrue. The amount of Additional
Interest with respect to each Note will be determined by multiplying the
applicable Additional Interest rate by the principal amount of such Note,
multiplied by a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.
5. Registration Procedures
In connection with the registration of any Registrable
Notes or Private Exchange Notes pursuant to Section 2 or 3 hereof, the Company
shall effect such registrations to permit the sale of such Registrable Notes
or Private Exchange Notes in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall:
(a) Prepare and file with the SEC, prior to the Filing
Date, a Registration Statement or Registration Statements as
prescribed by Section 2 or 3, and to use its best efforts to
cause each such Registration Statement to become effective and
remain effective as provided herein, provided that, if (1) such
filing is pursuant to Section 3, or (2) a Prospectus contained
in an Exchange Registration Statement filed pursuant to Section
2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, before filing any Registration
Statement or Prospectus or any amendments or supplements
thereto, the Company shall, if requested by any Holders of
Registrable Notes, furnish to and afford such Holders of the
Registrable Notes and each such Participating Broker-Dealer, as
the case may be, covered by such Registration Statement, their
counsel and the managing underwriter(s), if any, a reasonable
opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein
and all exhibits thereto) proposed to be filed (at least 5
business days prior to such filing). The Company shall not
file any Registration Statement or Prospectus or any amendments
or supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such
document, if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration
Statement, or such Participating Broker-Dealer, as the case may
be, their counsel,
12
or the managing underwriter(s), if any, shall reasonably
object; provided, however, during any delay in meeting the time
frames contemplated by Section 4 hereof as a result of actions
of any Holder of Registrable Notes, no Additional Interest
shall accrue or be payable to such Holder.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or
Exchange Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously
effective for the Effectiveness Period or the Applicable
Period, as the case may be; cause the related Prospectus to be
supplemented by any prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations
of the SEC promulgated thereunder applicable to them with
respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as
so supplemented and with respect to the subsequent resale of
any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus; the Company shall be deemed not
to have used its best efforts to keep a Registration Statement
effective during the Applicable Period if it voluntarily takes
any action that would result in selling Holders of the
Registrable Notes covered thereby or Participating
Broker-Dealers seeking to sell Exchange Notes not being able to
sell such Registrable Notes or such Exchange Notes during that
period unless such action is required by applicable law or
unless the Company complies with this Agreement, including
without limitation, the provisions of clause 5(c)(v) below.
(c) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, notify the selling Holders of Registrable
Notes, or each such Participating Broker-Dealer, as the case
may be, their counsel and the managing underwriter(s), if any,
promptly (but in any event within two business days), and
confirm such notice in writing, (i) when a Prospectus or any
prospectus supplement or post-effective amendment thereto has
been filed, and, with respect to a Registration Statement or
13
any post-effective amendment thereto, when the same has become
effective (including in such notice a written statement that
any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective
amendment thereto including financial statements and schedules,
documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the SEC of any
stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of
any preliminary Prospectus or the initiation of any proceedings
for that purpose, (iii) if at any time when a Prospectus is
required by the Securities Act to be delivered in connection
with sales of the Registrable Notes the representations and
warranties of the Company contained in any agreement (including
any underwriting agreement) contemplated by Section 5(n) below
cease to be true and correct, (iv) of the receipt by the
Company of any notification with respect to the suspension of
the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Notes or the
Exchange Notes to be sold by any Participating Broker-Dealer
for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the
happening of any event or any information becoming known to the
Company that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in,
or amendments or supplements to, such Registration Statement,
Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and (vi) the Company's reasonable determination
that a post-effective amendment to a Registration Statement
would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any
14
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, use its best efforts to prevent
the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending
the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes
or the Exchange Notes to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such
order is issued, to use its best efforts to obtain the
withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section
3 and if reasonably requested by the managing underwriter(s),
if any, or the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold in connection with
an underwritten offering, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment thereto such
information as the managing underwriter(s), if any, or such
Holders reasonably request to be included therein, (ii) make
all required filings of such Prospectus supplement or such
post-effective amendment thereto as soon as practicable after
the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment thereto and (iii), if applicable, supplement or make
amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, furnish to each selling Holder of
Registrable Notes and to each such Participating Broker-Dealer
who so requests and to counsel and the managing underwriter(s),
if any, without charge, one conformed copy of the Registration
Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any
15
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, deliver to each selling Holder of
Registrable Notes, or each such Participating Broker-Dealer, as
the case may be, their counsel, and the managing underwriter
or underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of preliminary
Prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this
Section 5, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of
the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the
managing underwriter or underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of
the Registrable Notes covered by or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or
any delivery of a Prospectus contained in the Exchange
Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, to
use its best efforts to register or qualify, and to cooperate
with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective
counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such
Registrable Notes or Exchange Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions within
the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters, if
any, reasonably request in writing, provided that where
Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an
underwritten offering, the Company agrees to cause its counsel
to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section
5(h); keep each such registration or qualification (or
exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do
any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of
the Exchange Notes held by Participating Broker-
16
Dealers or the Registrable Notes covered by the applicable
Registration Statement; provided that the Company shall not be
required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in
any such jurisdiction where it is not then so subject or (C)
subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section
3, cooperate with the selling Holders of Registrable Notes and
the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold, which certificates
shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and
enable such Registrable Notes to be in such denominations and
registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request and
which are consistent with the terms of the indenture under
which the Registrable Notes are issued.
(j) Use its best efforts to cause the Registrable Notes
covered by the Registration Statement to be registered with or
approved by such other United States governmental agencies or
authorities as may be necessary to enable the seller or
sellers thereof or the managing underwriter or underwriters,
if any, to consummate the disposition of such Registrable
Notes, except as may be required solely as a consequence of
the nature of such selling Holder's business, in which case
the Company will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such
approvals at such sellers' cost and expense.
(k) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) above, as
promptly as reasonably practicable prepare and (subject to
Section 5(a) above) file with the SEC, at the expense of the
Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to
17
the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder or
to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer
during the Applicable Period, any such Prospectus will not
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) Use its best efforts to cause the Registrable Notes
covered by a Registration Statement or the Exchange Notes sold
by a Participating Broker-Dealer during the Applicable Period,
as the case may be, to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in
aggregate principal amount of Registrable Notes covered by
such Registration Statement or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first
Registration Statement relating to the Registrable Notes, (i)
provide the Trustee with printed certificates for the
Registrable Notes in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for
the Registrable Notes.
(n) In connection with an underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into
an underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Notes and take all
such other actions as are reasonably requested by the managing
underwriter(s), if any, in order to expedite or facilitate the
registration or the disposition of such Registrable Notes, and
in such connection, (i) make such reasonable representations
and warranties to the managing underwriter or underwriters on
behalf of any underwriters, with respect to the business of
the Company and its subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case,
as are customarily made by issuers to underwriters in
underwritten offerings of debt securities, and confirm the
same if and when requested; (ii) obtain opinions of counsel to
the Company and updates thereof in form and substance
reasonably satisfactory to the managing underwriter or
underwriters,
18
addressed to the managing underwriter or underwriters covering
the matters customarily covered in opinions requested in
underwritten offerings of debt securities and such other
matters as may be reasonably requested by underwriters; (iii)
obtain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the managing underwriter
or underwriters from the independent certified public
accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of
the Company or of any business acquired by the Company for
which financial statements and financial data are, or are
required to be, included in the Registration Statement),
addressed to the managing underwriter or underwriters on
behalf of any underwriters, such letters to be in customary
form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten
offerings of debt securities and such other matters as
reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 7
hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and
the managing underwriter or underwriters or agents) with
respect to all parties to be indemnified pursuant to said
Section. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required
thereunder.
(o) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any
selling Holder of such Registrable Notes being sold who hold
at least $2.0 million in aggregate principal amount of
Registrable Notes, or each such Participating Broker-Dealer,
as the case may be, the managing underwriter or underwriters
participating in any such disposition of Registrable Notes, if
any, and any attorney, accountant or other agent retained by
any such selling Holder or each such Participating
Broker-Dealer, as the case may be (collectively, the
"Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records,
pertinent corporate
19
documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary
to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all
information in each case reasonably requested by any such
Inspector in connection with such Registration Statement.
Records which the Company determines, in good faith, to be
confidential and any Records which it notifies the Inspectors
are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to
avoid or correct a material misstatement or material omission
in such Registration Statement and the Company fails to
promptly correct such material misstatement or omission after
notice thereof, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of
competent jurisdiction or (iii) the information in such
Records has been made generally available to the public other
than through the Inspectors' breach of any confidentiality
agreement. Each selling Holder of such Registrable Notes and
each such Participating Broker-Dealer or underwriter will be
required to agree that information obtained by it as a result
of such inspections shall be deemed confidential and shall not
be used by it for any purpose other than discharging due
diligence responsibilities. In addition, such information
shall not be used as the basis for any market transactions in
the securities of the Company unless and until such is made
generally available to the public. Each selling Holder of
such Registrable Notes and each such Participating
Broker-Dealer will be required to further agree that it will,
upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to the Company
and allow the Company to undertake appropriate action to
prevent disclosure of the Records deemed confidential at its
expense.
(p) Provide an indenture trustee for the Registrable
Notes or the Exchange Notes, as the case may be, and cause the
Indenture or the trust indenture provided for in Section 2(a),
as the case may be, to be qualified under the TIA not later
than the effective date of the Exchange Offer Registration
Statement or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with
the trustee under any such indenture and the Holders of the
Registrable Notes, to effect such changes to such indenture as
may be required for such indenture to be so qualified in
accordance
20
with the terms of the TIA; and execute, and use its best
efforts to cause such 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 SEC to enable such
indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of
the SEC and make generally available to its securityholders
earnings statements satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after
the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if
not sold to underwriters in such an offering, commencing on
the first day of the first fiscal quarter of the Company after
the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Company, in a
form customary for underwritten offerings of debt securities
similar to the Notes, addressed to the Trustee for the benefit
of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be,
and which includes an opinion that (i) the Company has duly
authorized, executed and delivered the Exchange Notes and
Private Exchange Notes and the related indenture and (ii) each
of the Exchange Notes or the Private Exchange Notes, as the
case may be, and related indenture constitute a legal, valid
and binding obligation of the Company, enforceable against the
Company in accordance with its respective terms (with
customary exceptions).
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders
to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be, the Company shall xxxx, or
cause to be marked, on such Registrable Notes that such
Registrable Notes are being canceled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may
be; and, in no event shall
21
such Registrable Notes be marked as paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes
covered by any Registration Statement and the managing
underwriter(s), if any, participating in the disposition of
such Registrable Notes and their respective counsel in
connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(u) Use its reasonable best efforts to take all other
steps necessary to effect the registration of the Registrable
Notes covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Notes
or Participating Broker-Dealer as to which any registration is being effected
to furnish to the Company such information regarding such seller or
Participating Broker-Dealer and the distribution of such Registrable Notes or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case
may be, as the Company may, from time to time, reasonably request. The
Company may exclude from such registration the Registrable Notes of any
seller or Participating Broker-Dealer who fails to furnish such information
within a reasonable time after receiving such request, and during any delay
in meeting the time frames contemplated by Section 4 hereof as a result of a
delay in receiving any such information, no Additional Interest shall accrue
or be payable.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be,
that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or
5(c)(vi), such Holder will forthwith discontinue disposition of such
Registrable Notes covered by such Registration Statement or Prospectus or
Exchange Notes to be sold by such Holder or Participating Broker-Dealer, as
the case may be, until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k), or until it
is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Company shall give any
such notice, the Applicable Period shall be extended by the number of days
during such period from and
22
including the date of the giving of such notice to and including the date
when each seller of Exchange Notes to be sold by such Participating
Broker-Dealer, shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne by the
Company whether or not the Exchange Offer or a Shelf Registration is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with one underwritten
offering and (B) fees and expenses of compliance with state securities or
Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of
the Registrable Notes or Exchange Notes for investment under the laws of
such jurisdictions (x) where the Holders of Registrable Notes are located, in
the case of the Exchange Notes, or (y) as provided in Section 5(h), in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), such expenses not to exceed
$10,000 in the aggregate, (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust
Company and of printing Prospectuses if the printing of Prospectuses is
reasonably requested by the managing underwriter or underwriters, if any, or,
in respect of Registrable Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, by the Holders of a
majority in aggregate principal amount of the Registrable Notes included in
any Registration Statement or of such Exchange Notes, as the case may be),
(iii) reasonable messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company and fees and disbursements of
special counsel for the sellers of Registrable Notes (subject to the
provisions of Section 6(b)), (v) fees and disbursements of all independent
certified public accountants referred to in Section 5(n)(iii) (including,
without limitation, the expenses of any special audit and "cold comfort"
letters required by or incident to such performance), (vi) rating agency
fees, (vii) Securities Act liability insurance, if the Company desires such
insurance, (viii) fees and expenses of the Trustee (including, without
limitation, fees
23
and disbursements of counsel), (ix) fees and expenses of all other Persons
retained by the Company, (x) internal expenses of the Company (including,
without limitation, all salaries and expenses of officers and employees of
the Company performing legal or accounting duties), (xi) the expense of any
annual audit, (xii) the reasonable fees and expenses incurred in connection
with any listing of the securities to be registered on any securities
exchange if the Company elects to list any such securities and (xiii) the
expenses incurred by the Company relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement.
(b) In connection with any Shelf Registration hereunder,
the Company shall reimburse the Holders of the Registrable Notes being
registered in such registration for the actual reasonable fees and
disbursements of not more than one counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority in aggregate principal amount of
the Registrable Notes to be included in such Registration Statement and other
reasonable out-of-pocket expenses of the Holders of Registrable Notes
incurred in connection with the registration of the Registrable Notes,
subject to a maximum of $25,000. Notwithstanding anything to the contrary
contained herein, the Company shall not have any obligation to pay any
underwriting fees, discounts or commissions attributable to the sale of
Registrable Notes.
7. Indemnification
(a) The Company agrees to indemnify and hold harmless
each Holder of Registrable Notes and each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, the officers and directors of
each such person, and each person, if any, who controls any such person
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act (each, a "Participant"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
reasonable legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by, arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary Prospectus, or caused by, arising out
of or based upon any omission or alleged omission to state therein a material
fact required to
24
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Participant
or underwriter furnished to the Company in writing by such Participant or
underwriter expressly for use therein; provided that the foregoing indemnity
with respect to any preliminary Prospectus shall not inure to the benefit of
any Participant or underwriter (or to the benefit of any person controlling
such Participant or underwriter) from whom the person asserting any such
losses, claims, damages or liabilities purchased Registrable Notes or
Exchange Notes if such untrue statement or omission or alleged untrue
statement or omission made in such preliminary Prospectus is eliminated or
remedied in the related Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) and a copy of the
related Prospectus (as so amended or supplemented) shall have been furnished
to such Participant or underwriter at or prior to the sale of such
Registrable Notes or Exchange Notes, as the case may be, to such person or at
a time the Company had notified persons under the last paragraph of Section 5
hereof to cease using such Registration Statement or Prospectus.
(b) Each Participant will be required to agree,
severally and not jointly, to indemnify and hold harmless the Company, its
directors and officers and each person who controls any such person within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to each
Participant, but only with reference to information relating to such
Participant furnished to the Company in writing by such Participant expressly
for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary Prospectus. The liability of any
Participant under this paragraph (b) shall in no event exceed the proceeds
received by such Participant from sales of Registrable Notes giving rise to
such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnity may be sought
pursuant to either paragraph (a) or (b) of this Section 7, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnity may be sought (the "Indemnifying Person") in writing, and
25
the Indemnifying Person, upon request of the Indemnified Person, shall retain
one counsel reasonably satisfactory to the Indemnified Person to represent
the Indemnified Person and any others the Indemnifying Person may reasonably
designate in such proceeding and shall pay the reasonable fees and expenses
incurred by such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed in writing to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties
in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representations of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in
the same jurisdiction, be liable for the fees and expenses of more than one
separate law firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Participants and such control
persons of Participants shall be designated in writing by Participants who
sold a majority in interest of Registrable Notes sold by all such
Participants and any such separate firm for the Company, its directors, its
officers and such control persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified
Person for reasonable fees and expenses incurred by counsel as contemplated
by the third sentence of this paragraph, the Indemnifying Person agrees that
it shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement; provided,
however, that the Indemnifying Person shall not be liable for any settlement
effected without its consent pursuant
26
to this sentence if the Indemnifying Party is contesting, in good faith, the
request for reimbursement. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in paragraphs (a) and
(b) of this Section 7 is unavailable to an Indemnified Person in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraphs, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the Participants on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and the
Participants 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 or by the Participants and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The parties shall agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result
of the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any reasonable legal or other expenses actually incurred by
such Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, in no
event shall a Participant be required to contribute any amount in excess of
the amount by which proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes exceeds the amount of any damages that
such Participant has otherwise been required to pay by reason of such
27
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and
the rules and regulations adopted by the SEC thereunder in a timely manner
and, if at any time the Company is not required to file such reports, it
will, upon the request of any Holder of Registrable Notes, make publicly
available other information of a like nature until no longer necessary to
permit sales pursuant to Rule 144 or Rule 144A. The Company further
covenants that so long as any Registrable Notes remain outstanding to make
available to any Holder of Registrable Notes in connection with any sale
thereof, the information required by Rule 144A(d)(4) under the Securities Act
in order to permit resales of such Registrable Notes pursuant to (a) such
Rule 144A, or (b) any similar rule or regulation hereafter adopted by the
SEC, unless at such time the Registrable Notes are fully salable under Rule
144 or any successor provision.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment
banker or investment bankers and manager or managers that will manage the
offering will be selected by the Holders of a majority in aggregate principal
amount of such Registrable Notes included in such offering and shall be
reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
28
reasonably required under the terms of such underwriting arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by the Company
of any of its obligations under this Agreement, other than the occurrence of
an event which requires payment of Additional Interest, each Holder of
Registrable Notes, in addition to being entitled to exercise all rights
provided herein, in the Indenture or, in the case of the Initial Purchaser,
in the Purchase Agreement or granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
In the event of a breach by the Company of any of its obligations under this
Agreement, other than the occurrence of an event which required payment of
Additional Interest, the Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agrees that, in
the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
(b) Enforcement. The Trustee shall be authorized to
enforce the provisions of this Agreement for the ratable benefit of the
Holders.
(c) No Inconsistent Agreements. The Company does not
have, as of the date hereof, and the Company shall not, after the date of
this Agreement, enter into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The Company (i) has not entered into any agreement with
respect to any of its securities which will grant to any Person piggy-back
rights with respect to a Registration Statement, other than pursuant to that
Registration Rights and Stockholders Agreement, dated as of May 9, 1996,
among the Company, Xxxxxxx Corporation, a Delaware corporation, and the
purchasers of the Company's Senior Subordinated Notes due 2004 in an
aggregate principal amount of $25,000,000 and warrants to purchase shares of
the Common Stock, $.01 par value per share, of the Company and (ii) will not
enter into any agreement with respect to any of its securities which will
grant to any Person piggy-back rights with respect to a Registration
Statement.
(d) Adjustments Affecting Registrable Notes. The
Company shall not, directly or indirectly, take any action with
29
respect to the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such Registrable Notes
in a registration undertaken pursuant to this Agreement.
(e) 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 at least a majority of the then outstanding
aggregate principal amount of Registrable Notes. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Registrable Notes whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders of Registrable Notes may be given by
Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold by such Holders pursuant to such Registration
Statement, provided that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(f) Notices. All notices and other communications
(including without limitation any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or
telecopier:
(i) if to a Holder of Registrable Notes, at the most
current address given by the Trustee to the Company; and
(ii) if to the Company:
High Voltage Engineering Corporation
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
30
Attention: Xxxxxxx X. X'Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
All such notices and communications shall be deemed to
have been duly given: (i) when delivered by hand, if personally delivered;
(ii) three business days after being deposited in the mail, postage prepaid,
if mailed; (iii) one business day after being timely delivered to a next-day
air courier; and (iv) when receipt is acknowledged by the addressee, if
telecopied.
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 such Indenture.
(g) 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 Registrable Notes.
(h) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated,
31
and the parties hereto shall use commercially reasonable efforts to find and
employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final
expression of their agreement, and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein and therein.
(m) Notes Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be deemed outstanding for such purpose and shall
not be counted in determining whether such consent or approval was given by
the Holders of such required percentage.
32
IN WITNESS WHEREOF, the parties have executed this Notes
Registration Rights Agreement as of the date first written above.
HIGH VOLTAGE ENGINEERING
CORPORATION
By: /s/ Xxxxxx X. XxXxxx, Xx.
-----------------------------
Name: Xxxxxx X. XxXxxx, Xx.
Title: Chief Financial Officer,
Vice President and Clerk
CIBC XXXXXXXXXXX CORP.
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
33
