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EXHIBIT 10.2
EXECUTION COPY
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$250,000,000
7 3/8% SENIOR NOTES DUE 2005
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 17, 1998
BY AND AMONG
PROTECTION ONE ALARM MONITORING, INC.,
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
AND
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
SALOMON BROTHERS INC
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of August 17, 1998 by and among Protection One
Alarm Monitoring, Inc., a Delaware corporation (the "Company"),
Protection One, Inc., a Delaware corporation, Westar Security, Inc., a
Kansas corporation, and WestSec, Inc., a Kansas corporation (the
"Guarantors"), and Bear, Xxxxxxx & Co. Inc., Xxxxxx Brothers Inc.,
Xxxxxx Xxxxxxx & Co. Incorporated and Salomon Brothers Inc (each an
"Initial Purchaser" and, collectively, the "Initial Purchasers"), each
of whom has agreed to purchase the Company's 7 3/8% Senior Notes due
2005 (the "Initial Notes") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated August 12, 1998, (the "Purchase Agreement"), by and among the
Company, the Guarantors and the Initial Purchasers. In order to induce
the Initial Purchasers to purchase the Initial Notes, the Company and
the Guarantors have agreed to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in the
Purchase Agreement. Capitalized terms used herein and not otherwise
defined shall have the meaning assigned to them in the Indenture, dated
August 17, 1998, among the Company, the Guarantors and The Bank of New
York, as trustee, relating to the Initial Notes and the Exchange Notes
(as defined) (the "Indenture").
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "Closing Date" means the date on which the Initial Notes
are initially issued.
(b) "Commission" means the Securities and Exchange Commission,
or any other federal agency at the time administering the Exchange Act
or the Securities Act, whichever is the relevant statute for the
particular purpose.
(c) "Consummate" An Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (a)
the filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Exchange Notes to be issued in
the Exchange Offer, (b) the maintenance of such Exchange Offer
Registration Statement continuously effective and the keeping of the
Exchange Offer open for the period required under Section 2(a) hereof
and (c) the delivery by the Company to the Registrar under the
Indenture of Exchange Notes in the same aggregate principal amount as
the aggregate principal amount of Initial Notes tendered by Holders
thereof pursuant to the Exchange Offer.
(d) "Effective Time," in the case of (i) an Exchange Offer,
means the time and date as of which the Commission declares the
Exchange Offer Registration Statement effective or as of which the
Exchange Offer Registration Statement otherwise becomes effective and
(ii) a Shelf Registration, means the time and date as of which the
Commission declares the Shelf Registration effective or as of which the
Shelf Registration otherwise becomes effective.
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(e) "Exchange Act" means the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time to
time.
(f) "Exchange Notes" has the meaning assigned thereto under
Section 2(a).
(g) "Exchange Offer" has the meaning assigned thereto in
Section 2(a).
(h) "Exchange Offer Registration Statement" has the meaning
assigned thereto in Section 2(a).
(i) "Exchange Registration" has the meaning assigned thereto
in Section 3(f).
(j) "Holder" means each Initial Purchaser for so long as it
holds of record any Transfer Restricted Securities, and such of its
respective successors and assigns who acquire and hold of record
Transfer Restricted Securities, directly or indirectly, from such
person or from any successor or assign of such person, in each case for
so long as such person owns any Transfer Restricted Securities.
(k) "Participant" has the meaning as assigned thereto in
Section 6(a).
(l) "Person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(m) "Registration Default" has the meaning assigned thereto in
Section 2(c).
(n) "Registration Expenses" has the meaning assigned thereto
in Section 4.
(o) "Resale Period" means the period beginning on the date the
Shelf Registration becomes effective and ending on the earlier of (i)
the Shelf Registration ceasing to be effective or (ii) the second
anniversary of the Closing Date.
(p) "Restricted Holder" means (i) a Holder that is an
affiliate of the Company within the meaning of Rule 405, (ii) a Holder
who acquires Exchange Notes outside the ordinary course of such
Holder's business, (iii) a Holder who has arrangements or
understandings with any person to participate in the Exchange Offer for
the purpose of distributing Exchange Notes, or (iv) a broker-dealer who
receives Initial Notes for its own account but did not acquire the
Initial Notes as a result of market-making activities or other trading
activities.
(q) "Rule 144," "Rule 405" and "Rule 415" means, in each case,
such rule promulgated under the Securities Act.
(r) "Securities Act" means the Securities Act of 1933, or any
successor thereto, as the same may be amended from time to time.
(s) "Shelf Registration" has the meaning assigned thereto in
Section 2(b).
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(t) "Transfer Restricted Securities" means the Initial Notes;
provided, however, that such Initial Notes shall cease to be Transfer
Restricted Securities when (i) such Initial Notes have been exchanged
for Exchange Notes in an Exchange Offer; (ii) in the circumstances
contemplated by Section 2(b), a registration statement registering such
Initial Notes under the Securities Act has been declared or becomes
effective and such Initial Notes have been sold or otherwise
transferred by the Holder thereof pursuant to such effective
registration statement; (iii) such Initial Notes are sold pursuant to
Rule 144 under circumstances in which any legend borne by such Initial
Notes relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed or such Initial Notes are
eligible to be sold pursuant to paragraph (k) of Rule 144; or (iv) such
Initial Notes shall cease to be outstanding.
(u) "Trust Indenture Act" means the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b), the Company and the
Guarantors agree to use their respective reasonable best efforts to
file under the Securities Act a registration statement (the "Exchange
Offer Registration Statement") with the Commission on or prior to 45
days after the Closing Date (such 45th day the "Exchange Deadline")
relating to an offer to exchange (the "Exchange Offer") any and all of
the Initial Notes for a like aggregate amount of securities issued by
the Company, which have the same terms as the Initial Notes (and are
entitled to the benefits of a trust indenture which has been qualified
under the Trust Indenture Act), except that they have been registered
pursuant to an effective registration statement under the Securities
Act and do not contain restrictions on transfers. The Company and the
Guarantors agree to use their respective reasonable best efforts to
cause the Exchange Offer Registration Statement to become effective
under the Securities Act within 120 days after the Closing Date (such
120th day the "Exchange Effectiveness Deadline"). The Exchange Offer
will be registered under the Securities Act on the appropriate form and
will comply in all material respects with all applicable tender offer
rules and regulations under the Exchange Act. Unless the Exchange Offer
would not be permitted by applicable law or Commission policy, the
Company will commence the Exchange Offer and use its best efforts to
issue on or prior to 30 business days after the date on which the
Exchange Offer Registration Statement was declared effective by the
Commission, Exchange Notes in exchange for all Notes tendered prior
thereto in the Exchange Offer. The Exchange Offer shall be deemed to
have been completed upon the Company having exchanged, pursuant to the
Exchange Offer, 7 3/8% Senior Notes due 2005 (the "Exchange Notes") for
all Initial Notes that have been properly
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tendered and not withdrawn before the expiration of the Exchange
Offer, which shall be on a date that is at least 30 days following the
commencement of the Exchange Offer. The Exchange Offer will be deemed
completed only if the Exchange Notes received by Holders (other than
Restricted Holders) in the Exchange Offer for Initial Notes are, upon
receipt, transferable by each such Holder without restriction imposed
thereon by the Securities Act or the Exchange Act and without material
restrictions imposed thereon by the blue sky or securities laws of a
substantial majority of the States of the United States of America.
(b) If (i) the Company is not required to file the Exchange
Offer Registration Statement or permitted to Consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy or (ii) any Holder of Transfer Restricted Securities
notifies the Company prior to the 20th day following Consummation of
the Exchange Offer that (A) it is prohibited by law or Commission
policy from participating in the Exchange Offer or (B) that it may not
resell the Exchange Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and the prospectus contained in
the Exchange Offer Registration Offer is not appropriate or available
for such resales or (C) that it is a broker-dealer and owns Notes
acquired directly from the Company or an affiliate of the Company, then
in addition to or in lieu of conducting the Exchange Offer contemplated
by Section 2(a), the Company and the Guarantors shall file under the
Securities Act as promptly as practicable a "shelf" registration
statement (the "Shelf Registration") with the Commission on or prior to
45 days after such filing obligation arises (such 45th day the "Shelf
Deadline" and, together with the Exchange Deadline, the "Filing
Deadline") and use its best efforts to cause the Shelf Registration to
be declared effective by the Commission on or prior to 120 days after
such obligation arises (such 120th day the "Shelf Effectiveness
Deadline" and, together with the Exchange Effectiveness Deadline, the
"Effectiveness Deadline") providing for the registration of, and the
sale on a continuous or delayed basis by any such Holder of, all of the
Transfer Restricted Securities held by such Holder, pursuant to Rule
415 or any similar rule that may be adopted by the Commission. The
Company and the Guarantors agree to use their respective reasonable
best efforts to cause the Shelf Registration to become or be declared
effective and to keep such Shelf Registration continuously effective
for a period (the "Effectiveness Period") ending on the earlier of (i)
the second anniversary of the Closing Date or (ii) such time as there
are no longer any Transfer Restricted Securities outstanding. The
Company and the Guarantors further agree to supplement or make
amendments to the Shelf Registration during the Effectiveness Period,
as and when required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration or
by the Securities Act or rules and regulations thereunder for shelf
registration, and the Company and the Guarantors agree to furnish to
the Holders of the Transfer Restricted Securities copies of any such
supplement or amendment prior to its being used or promptly following
its filing with the Commission. Notwithstanding the foregoing, if the
Board of Directors of the Company determines in good faith that it is
in the best interests of the Company not to disclose the existence of
or facts surrounding any proposed or pending material corporate
transaction involving the Company, the Company may allow the Shelf
Registration to fail to be effective and usable as a result of such
nondisclosure for up to 60 days during the two year period of
effectiveness required by Section 2 hereof, but in no event for any
period in excess of 30 consecutive days.
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(c) If (i) any Registration Statement required by this
Agreement is not filed with the Commission on or prior to the
applicable Filing Deadline, (ii) any such Registration Statement has
not been declared effective by the Commission on or prior to the
applicable Effectiveness Deadline, (iii) the Exchange Offer has not
been Consummated within 30 business days of the Exchange Effectiveness
Deadline (the "Consummation Deadline") or (iv) except as provided in
the last sentence of paragraph (b) of this Section, any Registration
Statement required by this Agreement is filed and declared effective
but shall thereafter cease to be effective or fail to be usable for its
intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such
failure and that is itself declared effective within 5 days of filing
such post-effective amendment to such Registration Statement (each such
event referred to in clauses (i) through (iv), a "Registration
Default"), then the Company and the Guarantors hereby jointly and
severally agree to pay to each Holder of Transfer Restricted Securities
affected thereby liquidated damages in an amount equal to $.05 per week
per $1,000 in principal amount of Transfer Restricted Securities held
by such Holder for each week or portion thereof that the Registration
Default continues for the first 90-day period immediately following the
occurrence of such Registration Default. The amount of the liquidated
damages shall increase by an additional $.05 per week per $1,000 in
principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of liquidated damages of $.50 per week
per $1,000 in principal amount of Transfer Restricted Securities;
provided that the Company and the Guarantors shall in no event be
required to pay liquidated damages for more than one Registration
Default at any given time. Notwithstanding anything to the contrary set
forth herein, (1) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration), in the case
of (i) above, (2) upon the effectiveness of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration),
in the case of (ii) above, (3) upon Consummation of the Exchange Offer,
in the case of (iii) above, (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration
Statement that causes the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration) to again be declared
effective or made usable, in the case of (iv) above, or (5) if sooner,
upon the first date on which no Transfer Restricted Securities are
outstanding in the case of clauses (i) - (iv) above, the liquidated
damages payable with respect to the Transfer Restricted Securities as a
result of such clause (i), (ii), (iii) or (iv), as applicable, shall
cease.
All accrued liquidated damages shall be paid to the Holders
entitled thereto, in the manner provided for the payment of interest in
the Indenture, on each Interest Payment Date, as more fully set forth
in the Indenture and the Notes. Notwithstanding the fact that any
securities for which liquidated damages are due cease to be Transfer
Restricted Securities, all obligations of the Company and the
Guarantors to pay liquidated damages with respect to securities shall
survive until such time as such obligations with respect to such
securities shall have been satisfied in full.
3. Registration Procedures.
The following provisions shall apply to registration statements filed
pursuant to Section 2:
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(a) At or before the Effective Time of the Exchange Offer or
the Shelf Registration, as the case may be, the Company and the
Guarantors shall qualify the Indenture under the Trust Indenture Act.
(b) In connection with the Company's obligations with respect
to the Shelf Registration, if applicable, the Company and the
Guarantors shall, as soon as reasonably practicable (or as otherwise
specified herein):
(i) prepare and file with the Commission a
registration statement with respect to the Shelf Registration
on any form which may be utilized by the Company and the
Guarantors and which shall permit the disposition of the
Transfer Restricted Securities in accordance with the intended
method or methods thereof, as specified in writing by the
Holders of the Transfer Restricted Securities, and use their
respective reasonable best efforts to cause such registration
statement to become effective as soon as practicable
thereafter;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus included therein as may be necessary to effect
and maintain the effectiveness of such registration statement
for the period specified in Section 2(b) and as may be
required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
registration statement, and furnish to the Holders of the
Transfer Restricted Securities copies of any such supplement
or amendment simultaneously with or prior to its being used or
filed with the Commission;
(iii) comply in all material respects, as to all
matters within the Company's and the Guarantors' control, with
the provisions of the Securities Act with respect to the
disposition of all of the Transfer Restricted Securities
covered by such registration statement in accordance with the
intended methods of disposition by the Holders thereof
provided for in such registration statement;
(iv) permit any of (A) the Holders of the Transfer
Restricted Securities to be included in such registration
statement, (B) the underwriters (which term, for purposes of
this Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) the sales or placement
agent, if any, therefor, (D) counsel for such underwriters or
agent and (E) not more than one counsel for all the Holders of
such Transfer Restricted Securities who so request of the
Company and the Guarantors in writing to participate in the
preparation of such registration statement, each prospectus
included therein or filed with the Commission and each
amendment or supplement thereto;
(v) for a reasonable period prior to the filing of
such registration statement, and throughout the Resale Period,
make available at reasonable times at the Company's principal
place of business or such other reasonable place for
inspection by the persons referred to in Section 3(b)(iv), who
shall certify to the Company and the Guarantors that they have
a current intention to sell their Transfer Restricted
Securities pursuant to the
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Shelf Registration, such financial and other information and
books and records of the Company and the Guarantors, and
cause the officers, employees, counsel and independent
certified public accountants of the Company and the
Guarantors to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective
counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the
Securities Act; provided, however, that each such party
shall be required to maintain in confidence and not to
disclose to any other person any information or records
concerning the Company or the Guarantors until such time as
(A) such information becomes a matter of public record
(whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be
required so to disclose such information pursuant to a
subpoena or order of any court or other governmental agency
or body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall
have given the Company and the Guarantors prompt prior
written notice of such requirement and the opportunity to
contest the same or seek an appropriate protective order),
or (C) such information is required to be set forth in such
registration statement or the prospectus included therein or
in an amendment to such registration statement or an
amendment or supplement to such prospectus in order that
such registration statement, prospectus, amendment or
supplement, as the case may be, does not contain an untrue
statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading;
(vi) promptly notify the selling Holders of Transfer
Restricted Securities, the sales or placement agent, if any,
therefor and the managing underwriter or underwriters, if any,
thereof named in the Shelf Registration or a supplement
thereto, and confirm such notice in writing, (A) when such
registration statement or the prospectus included therein or
any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when
the same has become effective, (B) of the issuance by the
Commission of any stop order suspending the effectiveness of
such registration statement or the initiation or written
threat of any proceedings for that purpose, (C) of the receipt
by the Company or the Guarantors of any notification with
respect to the suspension of the qualification of the Transfer
Restricted Securities for sale in any jurisdiction or the
initiation or written threat of any proceeding for such
purpose, or (D) at any time when a prospectus is required to
be delivered under the Securities Act, that such registration
statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder;
(vii) use their reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto
at the earliest practicable date;
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(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Holder of
Transfer Restricted Securities, promptly incorporate in a
prospectus supplement or post-effective amendment such
information as is required by the applicable rules and
regulations of the Commission relating to the terms of the
sale of such Transfer Restricted Securities, including
information with respect to the principal amount of Transfer
Restricted Securities being sold by such Holder or agent or to
any underwriters, the name and description of such Holder,
agent or underwriter, the offering price of such Transfer
Restricted Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price
being paid therefor by such underwriters and with respect to
any other terms of the offering of the Transfer Restricted
Securities to be sold by such Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(ix) furnish to each Holder of Transfer Restricted
Securities, each placement or sales agent, if any, therefor,
each underwriter, if any, thereof and the respective counsel
referred to in Section 3(b)(iv) an executed (or conformed)
copy of such registration statement, each such amendment or
supplement thereto (in each case including all exhibits
thereto) and such number of copies of such registration
statement (excluding exhibits thereto) and of the prospectus
included in such registration statement (including each
preliminary prospectus and any summary prospectus), in
conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder;
and the Company and the Guarantors hereby consent to the use
of such prospectus (including any such preliminary or summary
prospectus) and any amendment or supplement thereto by each
such Holder and by any such agent and underwriter, in each
case, in the form most recently provided to such person by the
Company or the Guarantors in connection with the offering and
sale of the Transfer Restricted Securities covered by the
prospectus (including any such preliminary or summary
prospectus) or any supplement or amendment thereto; and
(x) use their respective reasonable best efforts to
(A) register or qualify the Transfer Restricted Securities to
be included in such registration statement under such
securities laws or blue sky laws of such United States
jurisdictions as any Holder of such Transfer Restricted
Securities and each placement or sales agent, if any, therefor
and underwriter, if any, thereof shall reasonably request, and
(B) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain
effective under Section 2(b) and for so long as may be
necessary to enable any such Holder, agent or underwriter to
complete its distribution of Transfer Restricted Securities
pursuant to such registration statement but in any event not
later than the date through which the Company and the
Guarantors are required to keep the Shelf Registration
effective pursuant to Section 2(b); provided, however, that
the Company shall not be required for any such purpose to (1)
qualify as a foreign corporation
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in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(b)(x), (2) consent to general service of process in any
such jurisdiction or (3) make any changes to its certificate
of incorporation or by-laws or any agreement between it and
its stockholders.
In case any of the foregoing obligations is dependent upon information
provided or to be provided by a party other than the Company or the Guarantors,
such obligation shall be subject to the provision of such information by such
party; provided that the Company and the Guarantors shall use their respective
reasonable best efforts to obtain the necessary information from any party
responsible for providing such information.
(c) In the event that the Company would be required, pursuant
to Section 3(b)(vi)(D), to notify the selling Holders of Transfer
Restricted Securities, the placement or sales agent, if any, therefor
or the managing underwriters, if any, thereof named in the Shelf
Registration or a supplement thereto of the existence of the
circumstances described therein, the Company and the Guarantors shall
promptly prepare and furnish to each such Holder, to each placement or
sales agent, if any, and to each such underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Transfer Restricted Securities,
such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder. Each
Holder of Transfer Restricted Securities agrees that upon receipt of
any notice from the Company or the Guarantors, pursuant to Section
3(b)(vi)(D), such Holder shall forthwith discontinue (and cause any
placement or sales agent or underwriters acting on their behalf to
discontinue) the disposition of Transfer Restricted Securities pursuant
to the registration statement applicable to such Transfer Restricted
Securities until such Holder (i) shall have received copies of such
amended or supplemented prospectus and, if so directed by the Company
or the Guarantors, such Holder shall 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 at the time of receipt of such notice or (ii)
shall have received notice from the Company or the Guarantors that the
disposition of Transfer Restricted Securities pursuant to the Shelf
Registration may continue.
(d) The Company or the Guarantors may require each Holder of
Transfer Restricted Securities as to which any registration pursuant to
Section 2(b) is being effected to furnish to the Company or the
Guarantors such information regarding such Holder and such Holder's
intended method of distribution of such Transfer Restricted Securities
as the Company or the Guarantors may from time to time reasonably
request in writing, but only to the extent that such information is
required in order to comply with the Securities Act. Each such Holder
agrees to notify the Company or the Guarantors as promptly as
practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company or the Guarantors or of the
occurrence of any event in either case as a result of which any
prospectus relating to such registration contains or would contain an
untrue statement of a material fact regarding such Holder or such
Holder's intended method of disposition of such Transfer
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Restricted Securities or omits to state any material fact regarding
such Holder or such Holder's intended method of disposition of such
Transfer Restricted Securities required to be stated therein or
necessary to make the statements therein not misleading, and promptly
to furnish to the Company or the Guarantors any additional information
required to correct and update any previously furnished information or
required so that such prospectus shall not contain, with respect to
such Holder or the disposition of such Transfer Restricted Securities,
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(e) Until the expiration of two years after the Closing Date,
the Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144) to, resell any of the Initial Notes that have been
reacquired by any of them except pursuant to an effective registration
statement under the Securities Act.
(f) In connection with the Company's and the Guarantors'
obligations with respect to the registration of Exchange Notes as
contemplated by Section 2(a) (the "Exchange Registration"), if
applicable, the Company and the Guarantors shall, as soon as reasonably
practicable (or as otherwise specified):
(i) prepare and file with the Commission such
amendments and supplements to the Exchange Offer Registration
Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness thereof for
the periods and purposes contemplated in Section 2(a) and as
may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of the
Exchange Offer Registration Statement, and promptly provide
each broker-dealer holding Exchange Notes with such number of
copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder, as
such broker-dealer reasonably may request for use in
connection with resales of Exchange Notes;
(ii) for a period of 120 days from the date on which
the Exchange Offer Registration Statement is declared
effective (the "120 Day Period"), promptly notify each
broker-dealer that has requested or received copies of the
prospectus included in the Exchange Offer Registration
Statement, and confirm such advice in writing, (A) when any
prospectus amendment or supplement or post-effective amendment
to the Exchange Offer Registration Statement has been filed,
and, with respect to any post-effective amendment to the
Exchange Offer Registration Statement, when the same has
become effective, (B) of the issuance by the Commission of any
stop order suspending the effectiveness of the Exchange Offer
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (C) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Exchange Notes for sale in any United
States jurisdiction or the initiation or threatening in
writing of any proceeding for such purpose, or (D) at any time
when a prospectus is required to be delivered under the
Securities Act, that the Exchange Offer Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material
respects to the
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applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder;
(iii) in the event that the Company or the Guarantors
would be required, pursuant to Section 3(f)(ii)(D), to notify
any broker-dealers holding Exchange Notes, promptly prepare
and furnish to each such Holder a reasonable number of copies
of a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of such Exchange Notes, such
prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or notify such broker-dealers that the offer and
sale of Exchange Notes pursuant to the Exchange Offer
Registration Statement may continue;
(iv) use their respective reasonable best efforts to
obtain the withdrawal of any order suspending the
effectiveness of the Exchange Offer Registration Statement or
any post-effective amendment thereto at the earliest
practicable date;
(v) use their respective reasonable best efforts to
register or qualify the Exchange Notes under the securities
laws or blue sky laws of such jurisdictions as are
contemplated by Section 2(a) no later than the commencement of
the Exchange Offer, provided, however, that the Company shall
not be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of
this Section 3(f)(v), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement
between it and its stockholders; and
(vi) make generally available to its security Holders
as soon as practicable but no later than eighteen months after
the effective date of such registration statement, an earning
statement of the Company, the Guarantors and their
subsidiaries complying with Section 1(a) of the Securities
Act (including, at the option of the Company, Rule 158
thereunder).
In case any of the foregoing obligations is dependent upon
information provided or to be provided by a party other than the
Company or the Guarantors, such obligation shall be subject to the
provision of such information; provided that the Company or the
Guarantors shall use their respective reasonable best efforts to obtain
the necessary information from any party responsible for providing such
information.
4. Registration Expenses.
The Company and the Guarantors agree to bear and to pay or cause to be
paid promptly upon request being made therefor all expenses incident to the
Company's or the Guarantors' performance of or compliance with this Agreement,
including (a) all Commission and any National Association of Securities Dealers
registration and filing fees and expenses, (b) all filing fees and expenses in
connection with the qualification of the Initial Notes or Exchange Notes for
offering and sale under the state securities and blue
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sky laws referred to in Section 3(b)(x) and Section 3(f)(v) hereof, (c) all
expenses relating to the preparation, printing, distribution and reproduction of
each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the certificates representing the Exchange Notes
and all other documents relating hereto, (d) fees and expenses of the Trustee
under the Indenture, and of any escrow agent or custodian, (e) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (f) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are incurred, assumed or paid by any Holder of Transfer Restricted
Securities or any placement or sales agent therefor or underwriter thereof, the
Company and the Guarantors shall reimburse such person for the full amount of
the Registration Expenses so incurred, assumed or paid promptly after receipt of
a documented request therefor. Notwithstanding the foregoing, the Holders of the
Transfer Restricted Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Transfer Restricted Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such Holders (severally or
jointly), other than the counsel and experts specifically referred to above.
5. Indemnification.
(a) Indemnification by the Company and the Guarantors. In
connection with a Shelf Registration, the Company and the Guarantors
shall, and they hereby, jointly and severally, agree to, indemnify and
hold harmless each of the Holders of Transfer Restricted Securities,
included in such Shelf Registration, and each person who is named in
such Shelf Registration or a supplement thereto as a placement or sales
agent or as an underwriter in any offering or sale of such Transfer
Restricted Securities and each person who controls any such person
(each, a "Participant") within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses,
liabilities, claims, damages and expenses whatsoever, to which they or
any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Company and the Guarantors will not be liable in any
such case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
information relating to any Participants furnished to the Company in
writing by or on behalf of such Participant expressly for use therein.
This indemnity will be in addition to any liability which the Company
and the Guarantors may otherwise have, including under this Agreement.
(b) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
each party against whom indemnification is to be sought in writing of
the commencement thereof (but the
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failure so to notify an indemnifying party shall not relieve it from
any liability which it may have under this Section 6 except to the
extent that it has been prejudiced in any material respect by such
failure). In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall
have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless (i) the employment of such
counsel shall have been authorized in writing by the indemnifying
parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of
the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties
shall have reasonably concluded that there may be defenses available
to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying party or parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties),
in any of which events such fees and expenses of counsel shall be
borne by the indemnifying parties; provided, however, that the
indemnifying party under subsection (a) or (b) above shall only be
liable for the legal expenses of one counsel (in addition to any local
counsel) for all indemnified parties in each jurisdiction in which any
claim or action is brought. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable
for any settlement of any claim or action effected without its prior
written consent, provided that such consent was not unreasonably
withheld.
(c) Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6(a)
is for any reason held to be unavailable from the indemnifying party or
is insufficient to hold harmless a party indemnified thereunder, the
Company and the Guarantors, on the one hand, and each Participant, on
the other hand, shall contribute to the aggregate losses, claims,
damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any reasonable investigation,
legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company and the Guarantors,
any contribution received by the Company and the Guarantors from
persons, other than the Participants, who may also be liable for
contribution, including persons who control the Company and the
Guarantors within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act) to which the Company, the Guarantors and the
Participants may be subject, in such proportion as is appropriate to
reflect the relative benefits received by the Company and the
Guarantors, on one hand, and such Participant, on the other hand, from
the offering of the Initial Notes or, if such allocation is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to above but also the
relative fault of the Company and the Guarantors, on one hand, and each
Participant, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantors, on one hand, and
of each
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Participant, 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, the Guarantors or
such Participant and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company, the Guarantors and the Participants agree that
it would not be just and equitable if contribution pursuant to this
Section 6(b) were determined by pro rata allocation or by any other
method of allocation which does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of
this Section 6(b), (i) in no case shall any of the Participant required
to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such Participant from the sale of
any Transfer Restricted Securities exceeds the amount of any damages
which such Participant has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount
in excess of the amount by which the discounts and commissions in
respect of the Transfer Restricted Securities underwritten by it and
distributed to the public exceeds the amount of any damages which such
underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission, (ii) 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. For
purposes of this Section 6(b), (A) each person, if any, who controls
any of the Participants within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and (B) the respective officers,
directors, partners, employees, representatives and agents of each of
the Participants or any controlling person shall have the same rights
to contribution as the Participants, and (X) each person, if any, who
controls any of the Company and the Guarantors within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and (Y) the
respective officers, directors, partners, employees, representatives
and agents of the Company and the Guarantors shall have the same rights
to contribution as the Company and the Guarantors, subject in each case
to clauses (i) and (ii) of this Section 6(b).
6. Rule 144.
The Company and the Guarantors covenant to the Holder of Transfer
Restricted Securities that the Company and the Guarantors shall use their
respective reasonable best efforts to timely file the reports required to be
filed by it under the Exchange Act or the Securities Act (including the reports
under Section 13 and 15(d) of the Exchange Act referred to in subparagraph
(c)(l) of Rule 144) and the rules and regulations adopted by the Commission
thereunder, all to the extent required from time to time to enable such Holder
to sell Transfer Restricted Securities without registration under the Securities
Act within the limitations of the safe harbor provided by Rule 144, as such Rule
144 may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the Commission.
7. Remedies.
The Company and the Guarantors agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of Section 2 of this
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Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Guarantors
represent, warrant, covenant and agree that they have not granted, and
shall not grant, registration rights with respect to Transfer
Restricted Securities which would be inconsistent with the terms
contained in this Agreement.
(b) Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a)
delivered personally, (b) mailed, certified or registered mail with
postage prepaid, (c) sent by next-day or overnight mail or delivery or
(d) sent by telecopy or telegram, as follows:
(i) If to the Initial Purchasers:
Bear Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
(ii) If to the Company and the Guarantors, at:
Protection One Alarm Monitoring, Inc.
0000 Xxxxx Xxxxxxx 000
Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
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Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or, in each case, at such other address as may be specified in writing
to the other parties hereto.
(c) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and
shall be enforceable by the respective successors and assigns of the
parties hereto. In the event that any transferee of any Holder of
Transfer Restricted Securities shall acquire Transfer Restricted
Securities, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be deemed a party hereto for all
purposes and 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 transferee shall be entitled to
receive the benefits of, and be conclusively deemed to have agreed to
be bound by and to perform, all of the applicable terms and provisions
of this Agreement.
(d) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results
thereof) made by or on behalf of the Company or the Guarantors, any
officer, director or agent of the Company or the Guarantors, any Holder
of Transfer Restricted Securities, any director, officer or partner of
such Holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and
shall survive delivery of and payment for the Transfer Restricted
Securities pursuant to the Purchase Agreement and the transfer and
registration of Transfer Restricted Securities by such Holder and the
consummation of an Exchange Offer.
(e) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW YORK.
(f) Headings. The descriptive headings of the several Sections
and paragraphs of this Agreement are inserted for convenience only, do
not constitute a part of this Agreement and shall not affect in any way
the meaning or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture) or delivered
pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between
the parties with respect to its subject matter. This Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively
or prospectively) only by a written instrument duly executed by the
Company, the Guarantors and the Holders of at least a majority in
aggregate principal amount of the Transfer Restricted Securities at the
time outstanding. Each Holder of any Transfer Restricted Securities at
the time or thereafter outstanding shall be bound by any amendment or
waiver effected pursuant to this Section 8(g),
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whether or not any notice, writing or marking indicating such amendment
or waiver appears on such Transfer Restricted Securities or is
delivered to such Holder.
(h) Inspection. For so long as this Agreement shall be in
effect, this Agreement and a complete list of the names and addresses
of all the Holders of Transfer Restricted Securities shall be made
available for inspection and copying on any business day by any Holder
of Transfer Restricted Securities for proper purposes only (which shall
include any purpose related to the rights of the Holders of Transfer
Restricted Securities under the Securities, the Indenture and this
Agreement) at the offices of the Company at the address thereof set
forth in Section 8(b) above, or at the office of the Trustee under the
Indenture.
(i) Counterparts. This Agreement may be executed by the
parties in counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
[signature page follows]
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Agreed to and accepted as of the date referred to above.
PROTECTION ONE ALARM MONITORING, INC
By: /s/ XXXX X. XXXXX
-------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer, Vice
President and Secretary
PROTECTION ONE, INC.
By: /s/ XXXX X. XXXXX
-------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer, Vice
President and Secretary
WESTAR SECURITY, INC.
By: /s/ XXXX X. XXXXX
-------------------------------
Name: Xxxx X. Xxxxx
Title: Secretary and Treasurer
WESTSEC, INC.
By: /s/ XXXX X. XXXXX
-------------------------------
Name: Xxxx X. Xxxxx
Title: Secretary and Treasurer
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The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
BEAR, XXXXXXX & CO. INC.
By: /s/ XXXXXXX X'XXXX
-----------------------------------
Name: Xxxxxxx X'Xxxx
Title: Senior Managing Director
XXXXXX BROTHERS INC.
By: /s/ C. VAN SCHELTINGER
-----------------------------------
Name: C. Van Scheltinger
Title: Senior Vice President
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Principal
SALOMON BROTHERS INC
By: /s/ XXXXXX X. XXXXXXXXX, XX.
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Managing Director
