EXHIBIT 4.2
SEROLOGICALS CORPORATION
4.75% CONVERTIBLE SENIOR SUBORDINATED DEBENTURES DUE 2033
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made
and entered into as of August 20, 2003 by and among Serologicals Corporation, a
Delaware corporation (the "COMPANY"), and Banc of America Securities LLC, X.X.
Xxxxxx Securities Inc. and UBS Securities LLC, as representatives of the initial
purchasers (the "INITIAL PURCHASERS"), pursuant to the Purchase Agreement, dated
as of August 15, 2003, among the Company and the Initial Purchasers (the
"PURCHASE AGREEMENT"). In order to induce the Initial Purchasers to enter into
the Purchase Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement.
1. Certain Definitions.
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) "ADDITIONAL AMOUNTS" has the meaning assigned thereto in
Section 2(d).
(b) "ADDITIONAL AMOUNTS PAYMENT DATE" has the meaning assigned
thereto in Section 2(d).
(c) "AFFILIATE" has the meaning specified in Rule 405 under
the Securities Act ; and control of a Person means the power, direct or
indirect, to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise and the terms
"controlling" and "controlled" have the meanings correlative to the
foregoing.
(d) "AGREEMENT" has the meaning specified in the first
paragraph of this Agreement.
(e) "APPLICABLE CONVERSION PRICE" means, as of any date of
determination, $1,000 divided by the Conversion Rate in effect as of
such date of determination.
(f) "BUSINESS DAY" means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
The City of New York are authorized or obligated by law or executive
order to close.
(g) "CLOSING DATE" means the date on which the Debentures are
initially issued.
(h) "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.
(i) "COMMON STOCK" means the shares of common stock, par value
$0.01 per share, of the Company, including the rights attached thereto
to purchase one-thousandth of a share of Series B Preferred Stock, par
value $0.01, per share of the Company, pursuant to the Rights
Agreement, dated as of August 2, 1999, between the Company and State
Street Bank & Trust Company, N.A., as Rights Agent, as the same may be
amended from time to time, and any other shares of common stock as may
constitute "Common Stock" for purposes of the Indenture, including the
Shares.
(j) "COMPANY" has the meaning specified in the first paragraph
of this Agreement.
(k) "CONVERSION RATE" has the meaning assigned such term in
the Indenture.
(l) "DEBENTURES" means the Company's 4.75% Convertible Senior
Subordinated Debentures due 2033, to be issued under the Indenture and
sold by the Company to the Initial Purchasers, and securities (other
than the Shares) of the Company issued in exchange therefor or in lieu
thereof pursuant to the Indenture.
(m) "DEFERRAL NOTICE" has the meaning assigned thereto in
Section 3(b).
(n) "DEFERRAL PERIOD" has the meaning assigned thereto in
Section 3(b).
(o) "EFFECTIVE PERIOD" has the meaning assigned thereto in
Section 2(a).
(p) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
(q) "HOLDER" means each holder, from time to time, of
Registrable Securities (including the Initial Purchasers).
(r) "INDENTURE" means the Indenture, dated as of August 20,
2003, between the Company and the Trustee, pursuant to which the
Debentures are being issued.
(s) "INITIAL PLACEMENT" means the initial placement of the
Securities pursuant to the terms of the Purchase Agreement.
(t) "INITIAL PURCHASERS" has the meaning specified in the
first paragraph of this Agreement.
(u) "LOSSES" has the meaning assigned thereto in Section 6(d).
(v) "MATERIAL EVENT" has the meaning assigned thereto in
Section 3(a)(iv).
(w) "MAJORITY HOLDERS" means, on any date, holders of the
majority of the Shares constituting Registrable Securities; for the
purposes of this definition, Holders of Debentures constituting
Registrable Securities shall be deemed to be the Holders of the number
of Shares into which such Debentures are or would be convertible as of
such date.
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(x) "NASD" means the National Association of Securities
Dealers, Inc.
(y) "NOTICE AND QUESTIONNAIRE" means a written notice
delivered to the Company containing substantially the information
called for by the Form of Selling Securityholder Notice and
Questionnaire attached as Annex A to the Offering Memorandum.
(z) "NOTICE HOLDER" means, on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such
date.
(aa) "OFFERING MEMORANDUM" means the Offering Memorandum dated
August 15, 2003 relating to the offer and sale of the Securities.
(bb) "PERSON" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(cc) "PROSPECTUS" means the prospectus included in any Shelf
Registration Statement, as amended or supplemented by any amendment or
prospectus supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be
incorporated by reference in such Prospectus.
(dd) "PURCHASE AGREEMENT" has the meaning specified in the
first paragraph of this Agreement.
(ee) "REGISTRABLE SECURITIES" means the Debentures until such
Debentures have been converted into or exchanged for the Shares and, at
all times subsequent to any such conversion, the Shares and any
securities into or for which such Shares have been converted or
exchanged, and any security issued with respect thereto upon any stock
dividend, split or similar event; provided, however, that such
securities shall cease to be Registrable Securities when (i) a
registration statement registering such securities under the Securities
Act has been declared or becomes effective and such securities have
been sold or otherwise transferred by the Holder thereof pursuant to
such effective registration statement; (ii) such securities are sold
pursuant to Rule 144 under circumstances in which any legend borne by
such securities relating to restrictions on transferability thereof,
under the Securities Act or otherwise, is removed or such securities
are eligible to be sold pursuant to Rule 144(k) or any successor
provision; or (iii) such securities shall cease to be outstanding
(including, in the case of the Debentures, upon conversion into
Shares).
(ff) "REGISTRATION DEFAULT" has the meaning assigned thereto
in Section 2(d).
(gg) "REGISTRATION EXPENSES" has the meaning assigned thereto
in Section 5.
(hh) "RULE 144," "RULE 405" and "RULE 415" mean, in each case,
such rule as promulgated under the Securities Act.
(ii) "SECURITIES" means, collectively, the Debentures and the
Shares.
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(jj) "SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(kk) "SHARES" means the shares of Common Stock into which the
Debentures are convertible or that have been issued upon any conversion
of the Debentures.
(ll) "SHELF REGISTRATION STATEMENT" means the shelf
registration statement referred to in Section 2(a), as amended or
supplemented by any amendment or supplement, including post-effective
amendments, and all materials incorporated by reference or explicitly
deemed to be incorporated by reference in such Shelf Registration
Statement, and any additional shelf registration statements filed under
the Securities Act to permit the registration and sale of Registrable
Securities pursuant to Section 2(c).
(mm) "TRUST INDENTURE ACT" means the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all shall be amended from time to time.
(nn) "TRUSTEE" means The Bank of New York, a New York banking
corporation (or any successor entity), the Trustee under the Indenture.
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) The Company agrees to file under the Securities Act,
within fifteen (15) days after the Company files with the Commission
its Annual Report on Form 10-K for the year ended December 28, 2003
(the "Form 10-K Filing Date"), a Shelf Registration Statement providing
for the registration of, and the sale on a continuous or delayed basis
(including through brokers and dealers) by the Holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that
may be adopted by the Commission. The Company agrees to use its
reasonable best efforts to cause the Shelf Registration Statement to
become or be declared effective within seventy-five (75) days after the
initial filing of such Shelf Registration Statement and to keep such
Shelf Registration Statement continuously effective until such time as
there are no longer any Registrable Securities outstanding (the
"EFFECTIVE PERIOD"). At the time the Shelf Registration Statement is
declared effective, each Holder that became a Notice Holder on or prior
to the date ten (10) Business Days prior to such time of effectiveness
shall be named as a selling securityholder in the Shelf Registration
Statement and the related Prospectus in such a manner as to permit such
Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law. None of the Company's
securityholders (other than Holders of Registrable Securities) shall
have the right to include any of the Company's securities in the Shelf
Registration Statement.
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(b) The Company further agrees that it shall cause each Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of such Shelf Registration
Statement or such amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities
Act; and (ii) not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading, and the Company agrees to furnish to the Holders
of the Registrable Securities copies of any supplement or amendment
prior to its being used or promptly following its filing with the
Commission. If any Shelf Registration Statement, as amended or
supplemented from time to time, ceases to be effective for any reason
at any time during the Effective Period (other than because all
Registrable Securities registered thereunder shall have been sold
pursuant thereto or shall have otherwise ceased to be Registrable
Securities), the Company shall use its reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness
thereof.
(c) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to the Shelf
Registration Statement and related Prospectus, it will do so only in
accordance with this Section 2(c) and Section 3(b). Each Holder of
Registrable Securities wishing to sell Registrable Securities pursuant
to the Shelf Registration Statement and related Prospectus agrees to
deliver a Notice and Questionnaire to the Company prior to any intended
distribution of Registrable Securities under the Shelf Registration
Statement. From and after the date the Shelf Registration Statement is
declared effective, the Company shall, within five (5) Business Days
or, if the Company is required to file with the Commission a new Shelf
Registration Statement, thirty (30) calendar days, after the date a
Notice and Questionnaire is delivered, (i) if required by applicable
law, file with the Commission a post-effective amendment to the Shelf
Registration Statement or an additional Shelf Registration Statement,
or use its reasonable best efforts to prepare and, if required by
applicable law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by
reference or file any other required document so that the Holder
delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance
with applicable law and, if the Company shall file a post-effective
amendment to the Shelf Registration Statement or such an additional
Shelf Registration Statement, use its reasonable best efforts to cause
such post-effective amendment or such additional Shelf Registration
Statement to be declared effective under the Securities Act within
sixty (60) days of filing; (ii) provide such Holder copies of any
documents filed pursuant to Section 2(c)(i); and (iii) notify such
Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment or additional Shelf
Registration Statement filed pursuant to Section 2(c)(i); provided that
if such Notice and Questionnaire is delivered during a Deferral Period,
the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii)
and (iii) above upon expiration of the Deferral Period in accordance
with Section 3(b). Notwithstanding anything contained herein to the
contrary, the Company shall be under no obligation to name any Holder
that is not a
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Notice Holder as a selling securityholder in any Shelf Registration
Statement or related Prospectus; provided, however, that any Holder
that becomes a Notice Holder pursuant to the provisions of this Section
2(c) (whether or not such Holder was a Notice Holder at the time the
Shelf Registration Statement was declared effective) shall be named as
a selling securityholder in the Shelf Registration Statement or related
Prospectus in accordance with the requirements of this Section 2(c).
(d) If any of the following events (any such event, a
"REGISTRATION DEFAULT") shall occur, then, in the case of the
Debentures, interest and, in the case of the Shares, liquidated damages
(the "ADDITIONAL AMOUNTS") shall become payable to Holders in respect
of the Securities as follows:
(i) if the initial Shelf Registration Statement
is not filed with the Commission within fifteen (15) days
after the 10-K Filing Date, then commencing on the fifteenth
(15th) day after the 10-K Filing Date, Additional Amounts
shall accrue on the principal amount of the outstanding
Debentures that are Registrable Securities and on the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities at a rate of 0.25% per annum for the
first ninety (90) days from and including such fifteenth
(15th) day after the 10-K Filing Date and at a rate of 0.5%
per annum thereafter; or
(ii) if the initial Shelf Registration Statement
is not declared effective by the Commission within
seventy-five (75) days following the filing of such initial
Shelf Registration Statement, then commencing on the
seventy-fifth (75th) day after the filing of such initial
Shelf Registration Statement, Additional Amounts shall accrue
on the principal amount of the outstanding Debentures that are
Registrable Securities and on the Applicable Conversion Price
of any outstanding Shares that are Registrable Securities at a
rate of 0.25% per annum for the first ninety (90) days from
and including such seventy-fifth (75th) day after the filing
of such initial Shelf Registration Statement and at a rate of
0.5% per annum thereafter; or
(iii) if the Company has failed to perform its
obligations set forth in Section 2(c) hereof within the time
periods required therein, then commencing on the first day
after the date by which the Company was required to perform
such obligations, Additional Amounts shall accrue on the
principal amount of the outstanding Debentures that are
Registrable Securities and on the Applicable Conversion Price
of any outstanding Shares that are Registrable Securities at a
rate of 0.25% per annum for the first ninety (90) days and at
a rate of 0.5% per annum thereafter; or
(iv) if any Shelf Registration Statement has been
declared effective but such Shelf Registration Statement
ceases to be effective at any time during the Effective Period
(other than pursuant to Section 3(b) hereof), then commencing
on the day such Shelf Registration Statement ceases to be
effective, Additional Amounts shall accrue on the principal
amount of the outstanding Debentures that are Registrable
Securities and on the Applicable Conversion Price of any
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outstanding Shares that are Registrable Securities at a rate
of 0.25% per annum for the first ninety (90) days following
such date on which such Shelf Registration Statement ceases to
be effective and at a rate of 0.5% per annum thereafter; or
(v) if the aggregate duration of Deferral
Periods in any period exceeds the number of days permitted in
respect of such period pursuant to Section 3(b) hereof, then
commencing on the day the aggregate duration of Deferral
Periods in any period exceeds the number of days permitted in
respect of such period (and again on the first day of any
subsequent Deferral Period during such period), Additional
Amounts shall accrue on the principal amount of the
outstanding Debentures that are Registrable Securities and on
the Applicable Conversion Price of any outstanding Shares that
are Registrable Securities at a rate of 0.25% per annum for
the first ninety (90) days and at a rate of 0.5% per annum
thereafter;
provided, however, that the Additional Amounts rate on the Securities
shall not exceed in the aggregate 0.5% per annum and shall not be
payable under more than one clause above for any given period of time,
except that if Additional Amounts would be payable under more than one
clause above, but at a rate of 0.25% per annum under one clause and at
a rate of 0.5% per annum under the other, then the Additional Amounts
rate shall be the higher rate of 0.5% per annum; provided further,
however, that (1) upon the filing of the Shelf Registration Statement
(in the case of clause (i) above), (2) upon the effectiveness of any
Shelf Registration Statement (in the case of clause (ii) above), (3)
upon the Company's performing its obligations set forth in Section 2(c)
hereof within the time periods required therein (in the case of clause
(iii) above), (4) upon the effectiveness of the Shelf Registration
Statement which had ceased to remain effective (in the case of clause
(iv) above), (5) upon the termination of the Deferral Period that
caused the limit on the aggregate duration of Deferral Periods in a
period set forth in Section 3(b) to be exceeded (in the case of clause
(v) above) or (6) upon the termination of certain transfer restrictions
on the Securities as a result of the application of Rule 144(k) or any
successor provision, Additional Amounts on the Securities as a result
of such clause, as the case may be, shall cease to accrue.
Additional Amounts on the Securities, if any, will be payable
in cash on February 15 and August 15 of each year (the "ADDITIONAL
AMOUNTS PAYMENT DATE") to holders of record of outstanding Registrable
Securities on each preceding February 1 and August 1; provided that if
a Registration Default ends on a day other than an Additional Amounts
Payment Date, the Additional Amounts shall be payable on the applicable
Additional Amounts Payment Date to the holders of record of the
Registrable Securities as of the date on which such Registration
Default ends; and provided further that any Additional Amounts accrued
with respect to any Debenture or portion thereof redeemed or
repurchased by the Company on a redemption date or a repurchase date or
converted for Shares on a conversion date prior to the Additional
Amounts Payment Date, shall, in any such event, be paid instead to the
Holder who submitted such Debenture or portion thereof for redemption,
repurchase or conversion on the applicable redemption date, repurchase
date or conversion date, as the case may be, on such date (or promptly
following the conversion date, in the case of conversion). The date of
determination of the Applicable Conversion Price of any outstanding
Shares that are Registrable Securities
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shall be the Business Day immediately preceding the Additional Amounts
Payment Date; provided that in the case of an event of the type
described in clause (iii) above, such Additional Amounts shall be paid
only to the Holders that have delivered Notice and Questionnaires that
caused the Company to incur the obligations set forth in Section 2(c),
the non-performance of which is the basis of such Registration Default.
Following the cure of all Registration Defaults requiring the payment
of Additional Amounts by the Company to the Holders of Registrable
Securities pursuant to this Section, the accrual of Additional Amounts
will cease (without in any way limiting the effect of any subsequent
Registration Default requiring the payment of Additional Amounts by the
Company).
The Trustee shall be entitled, on behalf of Holders of
Securities, to seek any available remedy for the enforcement of this
Agreement, including for the payment of any Additional Amounts.
Notwithstanding the foregoing, the parties agree that the sole monetary
damages payable for a violation of the terms of this Agreement with
respect to which Additional Amounts are expressly provided shall be as
set forth in this Section 2(d). Nothing shall preclude a Notice Holder
or Holder of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
3. Registration Procedures.
The following provisions shall apply to the Shelf Registration
Statement filed pursuant to Section 2:
(a) The Company shall:
(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 which
shall permit the disposition of the Registrable Securities in
accordance with the intended method or methods thereof, as
specified in writing by the Holders of the Registrable
Securities, and use its reasonable best efforts to cause such
registration statement to become effective in accordance with
Section 2(a) above;
(ii) before filing any Shelf Registration
Statement or Prospectus or any amendments or supplements
thereto with the Commission, furnish to the Initial Purchasers
copies of all such documents proposed to be filed and use
reasonable best efforts to reflect in each such document when
so filed with the Commission such comments as the Initial
Purchasers reasonably shall propose within three (3) Business
Days of the delivery of such copies to the Initial Purchasers;
(iii) use its reasonable best efforts to (1)
prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement
and file with the Commission any other required document as
may be necessary to keep such Shelf Registration Statement
continuously effective until the expiration of the Effective
Period; (2) cause the related Prospectus to be supplemented by
any required Prospectus supplement, and as so
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supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and (3)
comply with the provisions of the Securities Act applicable to
it with respect to the disposition of all Securities covered
by such Shelf Registration Statement during the Effective
Period in accordance with the intended methods of disposition
by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented;
(iv) promptly notify the Notice Holders of
Registrable Securities (A) when such Shelf Registration
Statement or the Prospectus included therein or any amendment
or supplement to the Prospectus or post-effective amendment
has been filed with the Commission, and, with respect to such
Shelf Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any request,
following the effectiveness of the Shelf Registration
Statement, by the Commission or any other Federal or state
governmental authority for amendments or supplements to the
Shelf Registration Statement or related Prospectus or for
additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or written threat of
any proceedings for that purpose, (D) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or written threat of any
proceeding for such purpose, (E) of the occurrence of (but not
the nature of or details concerning) any event or the
existence of any fact (a "MATERIAL EVENT") as a result of
which any Shelf Registration Statement shall contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or any Prospectus
shall contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(provided, however, that no notice by the Company shall be
required pursuant to this clause (E) in the event that the
Company either promptly files a Prospectus supplement to
update the Prospectus or a Form 8-K or other appropriate
Exchange Act report that is incorporated by reference into
the Shelf Registration Statement, which, in either case,
contains the requisite information with respect to such
Material Event that results in such Shelf Registration
Statement no longer containing any untrue statement of
material fact or omitting to state a material fact necessary
to make the statements contained therein not misleading),
(F) of the determination by the Company that a
post-effective amendment to the Shelf Registration Statement
will be filed with the Commission, which notice may, at the
discretion of the Company (or as required pursuant to
Section 3(b)), state that it constitutes a Deferral Notice,
in which event the provisions of Section 3(b) shall apply or
(G) at any time when a Prospectus is required to be
delivered under the Securities Act, that the Shelf
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;
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(v) prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration
Statement, use reasonable best efforts to register or qualify
or cooperate with the Notice Holders in connection with the
registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of
such jurisdictions within the United States as any Notice
Holder reasonably requests in writing (which request may be
included in the Notice and Questionnaire); prior to any public
offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use its reasonable best efforts to
keep each such registration or qualification (or exemption
therefrom) effective during the Effective Period in connection
with such Notice Holder's offer and sale of Registrable
Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things
necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set
forth in the Shelf Registration Statement and the related
Prospectus; provided that the Company will not be --------
required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Agreement or
(ii) take any action that would subject it to general service
of process in suits or to taxation in any such jurisdiction
where it is not then so subject;
(vi) use its reasonable best efforts to prevent
the issuance of, and, if issued, to obtain the withdrawal of
any order suspending the effectiveness of the Shelf
Registration Statement or any post-effective amendment
thereto, and to lift any suspension of the qualification of
any of the Registrable Securities for sale in any jurisdiction
in which they have been qualified for sale, in each case at
the earliest practicable date;
(vii) upon reasonable notice, for a reasonable
period prior to the filing of the Shelf Registration
Statement, and throughout the Effective Period, make available
at reasonable times at the Company's principal place of
business or such other reasonable place for inspection by a
representative appointed by the Notice Holders in connection
with an underwritten offering (or any underwriter, placement
agent or counsel acting on their behalf), who shall certify to
the Company that they have a current intention to sell their
Registrable Securities pursuant to the Shelf Registration
Statement, such financial and other information and books and
records of the Company, and cause the officers, directors,
employees and independent certified public accountants of the
Company to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the counsel to such Notice
Holders, to conduct a reasonable "due diligence"
investigation; provided, however, that each such
representative appointed by the Notice Holders in connection
with an underwritten offering shall be required to maintain in
confidence and not to disclose to any other Person any
information or records reasonably designated by the Company in
writing as being confidential, until such time as (A) such
information becomes a matter of public record (whether by
virtue of its inclusion in the Shelf Registration Statement or
otherwise) or (B) such Person shall be required so to disclose
such information
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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 prompt prior
written notice of such requirement and the opportunity to
contest the same or seek an appropriate protective order);
(viii) if reasonably requested by the Initial
Purchasers or any Notice Holder, promptly incorporate in a
Prospectus supplement or post-effective amendment to the Shelf
Registration Statement such information as the Initial
Purchasers or such Notice Holder shall, on the basis of a
written opinion of nationally-recognized counsel experienced
in such matters, determine to be required to be included
therein by applicable law and make any required filings of
such Prospectus supplement or such post-effective amendment;
provided that the Company shall not be required to take any
actions under this Section 3(a)(viii) that are not, in the
reasonable opinion of counsel for the Company, in compliance
with applicable law;
(ix) promptly furnish to each Notice Holder and
the Initial Purchasers, upon their request and without charge,
at least one (1) conformed copy of the Shelf Registration
Statement and any amendments thereto, including financial
statements but excluding schedules, all documents incorporated
or deemed to be incorporated therein by reference and all
exhibits (unless requested in writing to the Company by such
Notice Holder or the Initial Purchasers, as the case may be);
and
(x) during the Effective Period, deliver to each
Notice Holder in connection with any sale of Registrable
Securities pursuant to the Shelf Registration Statement,
without charge, as many copies of the Prospectus relating to
such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such
Notice Holder may reasonably request; and the Company hereby
consents (except during such periods that a Deferral Notice is
outstanding and has not been revoked) to the use of such
Prospectus or each amendment or supplement thereto by each
Notice Holder in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any
amendment or supplement thereto in the manner set forth
therein.
(b) Upon (A) the issuance by the Commission of a stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any Material Event as a
result of which the Shelf Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any Prospectus shall contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or (C) the occurrence or existence of any corporate
development that, in the discretion of the Company, makes it
appropriate to suspend the
11
availability of the Shelf Registration Statement and the related
Prospectus, the Company will (i) in the case of clause (B) above,
subject to the third sentence of this provision, as promptly as
practicable prepare and file a post-effective amendment to such Shelf
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Shelf
Registration Statement and Prospectus so that such Shelf Registration
Statement does 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 such
Prospectus does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to the Shelf
Registration Statement, subject to the third sentence of this
provision, use reasonable best efforts to cause it to be declared
effective as promptly as is practicable, and (ii) give notice to the
Notice Holders that the availability of the Shelf Registration
Statement is suspended (a "DEFERRAL NOTICE"). Upon receipt of any
Deferral Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Shelf Registration Statement until such
Notice Holder's receipt of copies of the supplemented or amended
Prospectus provided for in clause (i) above, or until it is advised in
writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The Company will use its reasonable best efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above,
as promptly as practicable, (y) in the case of clause (B) above, as
soon as, in the sole judgment of the Company, public disclosure of such
Material Event would not be prejudicial to or contrary to the interests
of the Company or, if necessary to avoid unreasonable burden or
expense, as soon as practicable thereafter and (z) in the case of
clause (C) above, as soon as, in the discretion of the Company, such
suspension is no longer appropriate; provided that the period during
which the availability of the Shelf Registration Statement and any
Prospectus is suspended (the "DEFERRAL PERIOD"), without the Company
incurring any obligation to pay Additional Amounts pursuant to Section
2(d), shall not exceed forty-five (45) days in any three (3) month
period and one hundred and twenty (120) days in the aggregate in any
twelve (12) month period.
(c) Each Holder of Registrable Securities agrees that, upon
receipt of any Deferral Notice from the Company, such Holder shall
forthwith discontinue (and cause any placement or sales agent or
underwriters acting on their behalf to discontinue) the disposition of
Registrable Securities pursuant to the registration statement
applicable to such Registrable Securities until such Holder (i) shall
have received copies of such amended or supplemented Prospectus and, if
so directed by the Company, 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 Registrable Securities at the time of receipt of such notice or
(ii) shall have received notice from the Company that the disposition
of Registrable Securities pursuant to the Shelf Registration may
continue.
12
(d) The Company may require each Holder of Registrable
Securities as to which any registration pursuant to Section 2(a) is
being effected to furnish to the Company such information regarding
such Holder and such Holder's intended method of distribution of such
Registrable Securities as the Company 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 as promptly as practicable of any
inaccuracy or change in information previously furnished by such Holder
to the Company 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
Registrable Securities or omits to state any material fact regarding
such Holder or such Holder's intended method of disposition of such
Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading, and promptly to furnish to
the Company 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 Registrable 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) The Company shall comply with all applicable rules and
regulations of the Commission and make generally available to its
securityholders earning statements (which need not be audited)
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than forty (40) days after the end of any
12-month period (or seventy five (75) days after the end of any
12-month period if such period is a fiscal year) commencing on the
first day of the first fiscal quarter of the Company commencing after
the effective date of the Shelf Registration Statement, which
statements shall cover said 12-month periods.
(f) The Company shall provide CUSIP numbers for all
Registrable Securities covered by the Shelf Registration Statement no
later than the effective date of such Shelf Registration Statement and
provide the Trustee for the Debentures and the transfer agent for the
Shares with printed certificates for the Registrable Securities that
are in a form eligible for deposit with The Depository Trust Company.
(g) The Company shall use its reasonable best efforts to
provide such information as is required for any filings required to be
made with the NASD.
(h) 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 Securities that have been
reacquired by any of them except pursuant to an effective registration
statement under the Securities Act.
(i) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act in a timely manner.
13
(j) The Company shall enter into such customary agreements and
take all such other necessary and lawful actions in connection
therewith (including those requested by the Majority Holders of the
Registrable Securities being sold) in order to expedite or facilitate
disposition of such Registrable Securities.
(k) Upon (i) the filing of the initial Shelf Registration
Statement and (ii) the effectiveness of the initial Shelf Registration
Statement, the Company shall announce the same in each case by release
to Reuters Economic Services and Bloomberg Business News.
4. Holders' Obligations.
Each Holder agrees, by acquisition of the Registrable Securities, that
no Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to the Shelf Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section 2(c)
hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as may be
required to be disclosed in the Shelf Registration Statement under applicable
law or pursuant to Commission comments. Each Holder further agrees not to sell
any Registrable Securities pursuant to the Shelf Registration Statement without
delivering, or causing to be delivered, a Prospectus to the purchaser thereof
and, following termination of the Effective Period, to notify the Company,
within ten (10) Business Days of a request by the Company, of the amount of
Registrable Securities sold pursuant to the Shelf Registration Statement and, in
the absence of a response, the Company may assume that all of the Holder's
Registrable Securities were so sold.
5. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Agreement, including (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities for offering and sale under
the State securities and Blue Sky laws referred to in Section 3(a)(v) hereof,
including reasonable fees and disbursements of one counsel for the placement
agent or underwriters, if any, in connection with such qualifications, (c) all
expenses relating to the preparation, printing, distribution and reproduction of
the Shelf Registration Statement, the related Prospectus, each amendment or
supplement to each of the foregoing, the certificates representing the
Securities and all other documents relating hereto, (d) fees and expenses of the
Trustee under the Indenture, any escrow agent or custodian, and the registrar
and transfer agent for the Shares, (e) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance) and (f) reasonable fees, disbursements and
expenses of one counsel for the Holders of Registrable Securities retained in
14
connection with any underwritten offering of the Registrable Securities pursuant
to the Shelf Registration Statement, as selected by the Company (unless
reasonably objected to by the Majority Holders of the Registrable Securities
being registered, in which case the Majority Holders shall select such counsel
for the Holders), and fees, expenses and disbursements of any other Persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "REGISTRATION EXPENSES"). To the extent that any
Registration Expenses are incurred, assumed or paid by any Holder of Registrable
Securities or any placement agent therefor or underwriter thereof, the Company
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 Registrable
Securities being registered shall pay all placement agent fees and commissions
and underwriting discounts and commissions attributable to the sale of such
Registrable 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.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Holder of Securities covered by any Shelf Registration Statement and
each Person who controls any such Holder within the meaning of either
the Securities Act or the Exchange Act against any and all losses,
claims, damages, liabilities, damages or actions (collectively
"Losses") to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (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
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or the Prospectus, or in any amendment thereof
or supplement thereto, 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 not
misleading (in the case of any preliminary Prospectus or the
Prospectus, in the light of the circumstances under which they were
made), and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim,
damage or liability 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 written
information relating to the party claiming indemnification furnished to
the Company by or on behalf of the party claiming indemnification
specifically for inclusion therein; provided further, however, that
with respect to any such untrue statement in or omission from any
amended or supplemented Prospectus (excluding the correcting amendment
or supplement), the indemnity agreement contained in this Section 6(a)
shall not inure to the benefit of any person indemnified under this
Section 6(a) from whom the person asserting any such loss, claim,
damage, liability or action received Registrable Securities to the
extent that such loss, claim, damage, liability or action of or with
respect to such indemnified person results from the fact that both (A)
a copy of the Prospectus (together with any correcting amendments or
supplements) was not sent or given to such asserting
15
person at or prior to the written confirmation of the sale of such
Registrable Securities to such person and (B) the untrue statement in
or omission from any Prospectus was corrected in an amendment or
supplement thereto and the Prospectus (as amended or supplemented) does
not contain any other untrue statement or omission or alleged untrue
statement or omission of a material fact, unless, in the case of either
paragraph (A) or (B) above, such failure to deliver the final
Prospectus was a result of noncompliance by the Company with Section
3(a)(ix) or (x) hereof. This indemnity agreement shall be in addition
to any liability that the Company may otherwise have.
The Company also agrees to indemnify as provided in this
Section 6(a) or contribute as provided in Section 6(d) hereof to Losses
of each underwriter, if any, of Securities registered under the Shelf
Registration Statement, its directors, officers, employees, Affiliates
or agents and each Person who controls such underwriter on
substantially the same basis as that of the indemnification of the
selling Holders provided in this Section 6(a) and the contribution to
Losses of the selling Holders provided in Section 6(d) and shall, if
requested by any Holder, enter into an underwriting agreement
reflecting such agreement.
(b) Each Holder of securities covered by the Shelf
Registration Statement severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its
officers who signs the Shelf Registration Statement and each Person who
controls the Company within the meaning of either the Securities Act or
the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each such Holder, but only with reference to written
information relating to such Holder furnished to the Company by or on
behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise
have.
(c) Promptly after receipt by an indemnified party under this
Section 6 or notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
Section 6(a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will
not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation
provided in Section 6(a) or (b) above. The indemnifying party shall be
entitled to appoint counsel (including local counsel) of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel, other
than local counsel if not appointed by the indemnifying party, retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel (including local counsel) to represent the indemnified
party in an action, the indemnified party shall have the right to
employ separate counsel (including local counsel), and the indemnifying
16
party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional
to those available to the indemnifying party; (iii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after
notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel
at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in Section 6(a)
or (b) of this Section 6 is unavailable or insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages
or liabilities referred to therein, then each applicable indemnifying
party shall have an obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending such
Losses to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received
by such indemnifying party, on the one hand, and such indemnified
party, on the other hand, from the Initial Placement and the Shelf
Registration Statement which resulted in such Losses; provided,
however, that in no case shall any subsequent Holder of any Securities
be responsible, in the aggregate, for any amount in excess of the
Initial Purchasers' discount or commission applicable to such Security
from the Initial Placement, nor shall any underwriter be responsible
for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the
Shelf Registration Statement which resulted in such Losses. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified
party shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the
other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the Initial Placement (before
deducting expenses). Benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts and commissions
as set forth in the Offering Memorandum, and benefits received by any
other Holders shall be deemed to be equal to the value of receiving
Securities registered under the Securities Act. Benefits received by
any underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Shelf
17
Registration Statement which resulted in such Losses. Relative fault
shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information
provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties agree
that it would not be just and equitable if contribution were determined
by pro rata allocation (even if the Holders were treated as one entity
for such purpose) or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 6(d), 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. For purposes
of this Section 6, each Person who controls a Holder within the meaning
of either the Securities Act or the Exchange Act shall have the same
rights to contribution as such Holder, and each Person who controls the
Company within the meaning of either the Securities Act or the Exchange
Act, each officer of the Company who shall have signed the Shelf
Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this Section 6(d).
(e) The provisions of this Section 6 shall remain in full
force and effect, regardless of any investigation made by or on behalf
of any Holder or the Company or any of the indemnified Persons referred
to in this Section 6, and shall survive the sale by a Holder of
securities covered by the Shelf Registration Statement.
7. Rule 144.
The Company covenants to the Holders of Registrable Securities that the
Company shall use its 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 Sections 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) 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 Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any Holder of Registrable Securities in connection with that Holder's
sale pursuant to Rule 144, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements.
8. Inconsistent Agreements.
The Company has not entered into, and agrees not to enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or that otherwise conflicts with the provisions
hereof.
18
9. Miscellaneous.
(a) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture) or delivered
pursuant hereto which form a part hereof contains the entire
understanding of the parties and supersedes all prior agreements and
understandings among 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 and the Majority Holders of the
Registrable Securities at the time outstanding.
(b) Notices. All notices, requests, claims, demands, waivers
and other communications hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand, if delivered
personally or by courier, or three (3) days after being deposited in
the mail (registered or certified mail, postage prepaid, return receipt
requested) as follows:
(i) If to the Company, to it at 0000 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxx, 00000, Attention: Xxxxxx X. Xxxxxxx;
(ii) If to the Initial Purchasers, to the address
set forth in the Purchase Agreement; and
(iii) If to a Holder, to the address of such
Holder set forth in the security register, the Notice and
Questionnaire or other records of the Company,
or to such other address as the Company, the Initial Purchasers or any
such Holder may have furnished to the other parties in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(c) Remedies. Nothing shall preclude a Notice Holder or Holder
of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
(d) Successors. 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 Registrable Securities shall acquire
Registrable 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 Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such
Registrable 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.
(e) 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
19
thereof) made by or on behalf of any Holder of Registrable 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 Registrable Securities pursuant to the Purchase
Agreement and the transfer and registration of Registrable Securities
by such Holder.
(f) Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) 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.
(h) 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.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(j) Securities Held by the Company, Etc. Whenever the consent
or approval of Holders of a specified percentage of Securities is
required hereunder, Securities held by the Company or its Affiliates
(other than subsequent Holders of Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
20
Agreed to and accepted as of the date referred to above.
SEROLOGICALS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Finance and
Chief Financial Officer
BANC OF AMERICA SECURITIES LLC
By: /s Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
UBS SECURITIES LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxxx Xxxxx
Title: Associate Director
