EXHIBIT 10.3
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
DADE BEHRING INC.,
THE GUARANTORS NAMED HEREIN
AND
THE HOLDERS OF SENIOR SUBORDINATED NOTES NAMED HEREIN
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Dated as of October 3, 2002
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TABLE OF CONTENTS
PAGE
1. Definitions............................................................1
2. Securities Act Shelf Registration on Request...........................4
(a) Shelf Registration.................................................4
(b) Effective Registration Statement...................................4
3. Securities Act Registration on Request.................................5
(a) Request............................................................5
(b) Registration of Other Securities...................................6
(c) Registration Statement Form........................................6
(d) Effective Registration Statement...................................6
(e) Selection of Underwriters..........................................7
(f) Shelf Registrations................................................7
4. Piggyback Registration.................................................7
5. Expenses...............................................................9
6. Registration Procedures................................................9
7. Underwritten Offerings................................................13
(a) Requested Underwritten Offerings..................................13
(b) Holders of Registrable Notes to be Parties to
Underwriting Agreement............................................13
8. Preparation: Reasonable Investigation.................................13
(a) Registration Statements...........................................13
(b) Confidentiality...................................................14
9. Postponements.........................................................14
10. Indemnification.......................................................15
(a) Indemnification by the Company....................................15
(b) Indemnification by the Offerors and Sellers.......................16
(c) Notices of Losses, etc............................................16
(d) Contribution......................................................17
(e) Other Indemnification.............................................17
(f) Indemnification Payments..........................................17
11. Registration Rights to Others.........................................18
12. Rule 144 and Rule 144A................................................18
13. Amendments and Waivers................................................18
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14. Nominees for Beneficial Owners........................................18
15. Assignment............................................................18
16. Calculation of Percentage or Aggregate Principal
Amount of Registrable Notes...........................................19
17. Termination of Registration Rights....................................19
18. Miscellaneous.........................................................19
(a) Further Assurances................................................19
(b) Headings..........................................................19
(c) Conflicting Instructions.....................................19
(d) Remedies.....................................................19
(e) Entire Agreement.............................................19
(f) Notices......................................................19
(g) Governing Law................................................20
(h) Severability.................................................20
(i) Counterparts.................................................20
SCHEDULES:
SCHEDULE A - HOLDERS OF REGISTRABLE NOTES
SCHEDULE B - NOTICES
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of October 3, 2002 (this
"AGREEMENT"), by and among Dade Behring Inc., a Delaware corporation (the
"ISSUER"), the Guarantors parties to this Agreement (the "GUARANTORS", together
with the Issuer, the "COMPANY") and the holders of Registrable Notes (as
hereinafter defined) who are signatories to this Agreement (the "HOLDERS").
This Agreement is being entered into in connection with the
acquisition of Notes (as hereinafter defined) on the date hereof by certain
holders (the "ORIGINAL HOLDERS") pursuant to the Plan (as hereinafter defined).
Upon the issuance of the Notes, each Original Holder will own the aggregate
principal amount of Notes specified with respect to such Original Holder in
Schedule A hereto.
To induce the Original Holders to vote in favor of the Plan and to
accept the issuance of the Notes by the Company under the Plan, the Company has
undertaken to register Registrable Notes under the Securities Act (as
hereinafter defined) and to take certain other actions with respect to the
Registrable Notes. This Agreement sets forth the terms and conditions of such
undertaking.
Concurrently with the effective date of the Plan, Dade Behring
Holdings, Inc. ("Holdings") will enter into a
registration rights agreement (the
"Common Stock
Registration Rights Agreement") to induce holders of Common Stock
(as defined below) of Holdings to vote in favor of the Plan and to accept the
issuance of Common Stock under the Plan.
In consideration of the premises and the mutual agreements set forth
herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, capitalized terms used
herein and in the recitals above shall have the following meanings:
"AFFILIATE" of a Person means any Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such other Person. For purposes of this definition,
"control" means the ability of one Person to direct the management and policies
of another Person.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in
New York City are authorized or required by law to be
closed.
"COMMISSION" means the U.S. Securities and Exchange Commission.
"COMMON STOCK" means the shares of Common Stock, $.01 par value per
share, of Holdings, as adjusted to reflect any merger, consolidation,
recapitalization, reclassification, split-up, stock dividend, rights offering or
reverse stock split made, declared or effected with respect to the Common Stock.
"COMPANY INDEMNITEE" has the meaning set forth in Section 10(a)
hereof.
"EFFECTIVE DATE" means the effective date of the Plan pursuant to the
terms thereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, or any similar or successor statute.
"EXPENSES" means all expenses incident to the Company's performance of
or compliance with its obligations under this Agreement, including, without
limitation, all registration, filing, listing, national securities exchange and
NASD fees (including, without limitation, all fees and expenses of any
"qualified independent underwriter" required by the rules of the NASD), all fees
and expenses of complying with state securities or blue sky laws (including the
reasonable fees, disbursements and other charges of counsel for the underwriters
in connection with blue sky filings), all word processing, duplicating and
printing expenses, messenger, telephone and delivery expenses, all rating agency
fees, the fees, disbursements and other charges of counsel for the Company and
of its independent public accountants, including the expenses incurred in
connection with "cold comfort" letters required by or incident to such
performance and compliance, any fees and expenses incurred in connection with
the listing of the securities to be registered on the Private Offerings, Resales
and Trading through Automated Linkages, or PORTALSM Market ("PORTAL") or any
other securities exchange or national market system on which similar securities
issued by the Company are then listed, any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, the
reasonable fees, disbursements and other charges of one firm of counsel (per
registration statement prepared) to the holders of Registrable Notes making a
request pursuant to Section 2(a) or Section 3(a) hereof (selected by the Holders
holding a majority of the Registrable Notes covered by such registration), the
fees and expenses of any special experts retained by the Company in connection
with such registration, the fees and expenses of the Trustee and counsel
retained by the Trustee in connection with such registration, and the fees and
expenses of other persons retained by the Company, but excluding underwriting
discounts and commissions and applicable transfer taxes, if any, which
discounts, commissions and transfer taxes shall be borne by the seller or
sellers of Registrable Notes; PROVIDED, THAT, if the Company shall, in
accordance with Section 4 or Section 9 hereof, not register any securities with
respect to which it had given written notice of its intention to register to
holders of Registrable Notes, notwithstanding anything to the contrary in the
foregoing, all reasonable out-of-pocket expenses incurred by Requesting Holders
in connection with such registration (other than the reasonable fees,
disbursements and other charges of counsel other than the one firm of counsel
referred to above) shall be deemed to be Expenses.
"HOLDER INDEMNITEE" has the meaning set forth in Section 10(b) hereof.
"INDENTURE" means the indenture dated October 3, 2002 by and among the
Issuer, the Guarantors and BNY Midwest Trust Company as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as such Indenture is amended and
supplemented from time to time in accordance with the terms thereof.
"INITIAL SHELF" has the meaning set forth in Section 3(a) hereof.
"INITIATING HOLDERS" has the meaning set forth in Section 3(a) hereof.
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"INITIATING REQUEST" has the meaning set forth in Section 3(a) hereof.
"LOSS" and "LOSSES" have the meanings set forth in Section 10(a)
hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"NOTES" mean the aggregate principal amount of senior subordinated
notes due 2010 issued in accordance with the Plan pursuant to the Indenture.
"OFFERING DOCUMENTS" has the meaning set forth in Section 10(a)
hereof.
"PERSON" means any individual, corporation, partnership, firm, joint
venture, association, joint stock company, trust, unincorporated organization,
governmental or regulatory body or subdivision thereof or other entity.
"PIGGYBACK REQUESTING HOLDER" has the meaning set forth in Section 4
hereof.
"PLAN" means the Plan of Reorganization under Chapter 11 of the United
States Bankruptcy Code for the Company and certain of its domestic subsidiaries,
as the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"PUBLIC OFFERING" means a public offering and sale of the Notes
pursuant to an effective registration statement under the Securities Act.
"PUBLIC OFFERING OF COMMON STOCK" means a public offering and sale of
Common Stock pursuant to an effective registration statement under the
Securities Act.
"REGISTRABLE NOTES" means any of the Notes owned by the Holders from
time to time; PROVIDED, HOWEVER, that a Note shall cease to be a Registrable
Note after it has been sold under a registration statement effected pursuant
hereto or pursuant to Rule 144 promulgated under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder, or any similar or successor statute.
"SELLING HOLDERS" means the holders of Registrable Notes requested to
be registered pursuant hereto.
"SHELF REGISTRATION" has the meaning set forth in Section 2(a) hereof.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section
2(a) hereof.
"SHELF REQUESTING HOLDERS" means one or more Holders holding 10% or
more of the aggregate principal amount of the Registrable Notes outstanding on
the Shelf Request Date.
"SHELF REQUEST DATE" has the meaning set forth in Section 2(a) hereof.
"TRANSFER" means any transfer, sale, assignment, pledge, hypothecation
or other disposition of any interest. "TRANSFEROR" and "TRANSFEREE" have
correlative meanings.
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2. SECURITIES ACT SHELF REGISTRATION ON REQUEST.
(a) SHELF REGISTRATION. Shelf Requesting Holders may request the
Company to file a shelf registration statement (a "SHELF REGISTRATION
STATEMENT") pursuant to Rule 415 promulgated under the Securities Act (a "SHELF
REGISTRATION") providing for the sale by the Holders of any or all of the
Registrable Notes (the date of such request, the "SHELF REQUEST DATE"). Shelf
Requesting Holders may make such request at any time after the earlier to occur
of (i) the initial Public Offering of Common Stock or (ii) the first anniversary
of the Effective Date. The Company shall (i) use its best efforts to file, at
the earliest practicable date, such Shelf Registration Statement under the
Securities Act and (ii) use its best efforts to have such Shelf Registration
Statement thereafter declared effective by the Commission at the earliest
practicable date, but in any event not later than 90 days after the Shelf
Request Date or, if a Shelf Registration Statement is reviewed by the Staff of
the Securities and Exchange Commission, not later than 120 days after the Shelf
Request Date. Subject to Section 9(b), the Company agrees to use its reasonable
best efforts to keep the Shelf Registration Statement continuously effective
under Rule 415 of the Securities Act until the earlier to occur of (i) the
second anniversary of the date such Shelf Registration Statement initially is
declared effective by the Commission (plus a number of Business Days equal to
the number of days, if any, that the Shelf Registration Statement is not kept
effective after the initial date of its effectiveness and prior to the second
anniversary thereof), (ii) the day after the date on which all of the
Registrable Notes covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or (iii) the first date on which
there shall cease to be any Registrable Notes. The Company further agrees, if
necessary, to supplement or amend the Shelf Registration Statement, if required
by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration or by the Securities Act or by
any other rules and regulations thereunder for shelf registration, and the
Company agrees to furnish to the Holders whose Registrable Notes are included in
such Shelf Registration Statement copies of any such supplement or amendment
promptly after its being issued or filed with the Commission. In the case of a
registration pursuant to this Section 2(a), the Company agrees to cause the
Indenture to continue to be qualified under the Trust Indenture Act of 1939, as
amended, and in the event that such qualification would require the appointment
of a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(b) EFFECTIVE REGISTRATION STATEMENT. A Shelf Registration pursuant to
Section 2(a) hereof shall not be deemed to have been effected
(i) unless a registration statement with respect thereto has been
declared effective by the Commission and remains effective in compliance
with the provisions of the Securities Act and the laws of any state or
other jurisdiction applicable to the disposition of all Registrable Notes
covered by such registration statement until such time as all of such
Registrable Notes have been disposed of in accordance with such
registration statement or there shall cease to be any Registrable Notes
(provided that such period need not exceed the applicable period provided
for in Section 2(a)), or
(ii) if, after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement
of the Commission or other
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governmental or regulatory agency or court for any reason other than a
violation of applicable law solely by any Holders and has not thereafter
become effective.
3. SECURITIES ACT REGISTRATION ON REQUEST.
(a) REQUEST. At any time and from time to time after the expiration
(in accordance with Section 2 (a) above) or cessation of effectiveness of the
Shelf Registration Statement filed by the Company pursuant to Section 2(a)
hereof (the "Initial Shelf") and the Company's obligations hereunder have not
terminated pursuant to and in accordance with the terms of Section 18 hereof,
one or more Holders (the "Initiating Holders") may make a written request (the
"Initiating Request") to the Company for the registration with the Commission
under the Securities Act of all or part of such Initiating Holders' Registrable
Notes; PROVIDED, HOWEVER, that such request shall be made by one or more Holders
holding at least 10% of the aggregate principal amount of Registrable Notes
outstanding on such request date, which request shall specify the aggregate
principal amount of Notes to be disposed of by such Holders and the proposed
plan of distribution therefor. Upon the receipt of any Initiating Request for
registration pursuant to this paragraph, the Company promptly shall notify in
writing all other Holders of the receipt of such request and will use its
reasonable best efforts to effect, at the earliest practicable date, such
registration under the Securities Act, including a Shelf Registration, if
applicable, of
(i) the Registrable Notes which the Company has been so requested
to register by such Initiating Holder or Holders, and
(ii) all other Registrable Notes which the Company has been
requested to register by any other Holders by written request given to the
Company within 30 days after the giving of written notice by the Company to
such other Holders of the Initiating Request,
all to the extent necessary to permit the disposition (in accordance with
Section 3(c) hereof) of the Registrable Notes so to be registered; PROVIDED,
THAT,
(A) the Company shall not be required to effect more than a
total of two registrations pursuant to this Section 3(a) for all
Holders of Registrable Notes,
(B) if the intended method of distribution is an
underwritten Public Offering of the Notes, the Company shall not be
required to effect such registration pursuant to this Section 3(a)
unless such underwriting shall be conducted on a "firm commitment"
basis,
(C) if the Company shall have previously effected a
registration pursuant to Section 2, this Section 3(a) or shall have
previously effected a registration of which notice has been given to
the Holders pursuant to Section 4 hereof, the Company shall not be
required to effect any registration pursuant to this Section 3(a)
until a period of 180 days shall have elapsed from the date on which
the previous such registration ceased to be effective,
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(D) any Holder whose Registrable Notes were to be included
in any such registration pursuant to this Section 3(a), by written
notice to the Company, may withdraw such request and, on receipt of
such notice of the withdrawal of such request from Holders holding a
percentage of Registrable Notes, such that the Holders that have not
elected to withdraw do not hold, in the aggregate, the requisite
percentage of the Registrable Notes to initiate a request under this
Section 3(a), the Company shall not effect such registration, and
(E) the Company shall not be required to effect any
registration to be effected pursuant to this Section 3(a) unless at
least 10% of the aggregate principal amount of Registrable Notes
outstanding at the time of such request is to be included in such
registration.
(b) REGISTRATION OF OTHER SECURITIES. Whenever the Company shall
effect a registration pursuant to Section 3(a) hereof, no securities other than
(i) Registrable Notes, (ii) subject to Section 3(f), Common Stock to be sold by
the Company for its own account and (iii) Common Stock registrable pursuant to
the Common Stock
Registration Rights Agreement, shall be included among the
securities covered by such registration unless the Selling Holders holding more
than 50% of the aggregate principal amount of Registrable Notes to be covered by
such registration shall have consented in writing to the inclusion of such other
securities.
(c) REGISTRATION STATEMENT FORM. Registrations under Section 3(a)
hereof shall be on such appropriate registration form prescribed by the
Commission under the Securities Act as shall be selected by the Company and as
shall permit the disposition of the Registrable Notes pursuant to an
underwritten offering unless the Selling Holders holding more than 50% of the
aggregate principal amount of Registrable Notes requested to be included in such
registration statement determine otherwise, in which case pursuant to the method
of disposition determined by such Selling Holders. The Company agrees to include
in any such registration statement filed pursuant to Section 3(a) hereof all
information which any of the Selling Holders holding a majority of the aggregate
principal amount of the Registrable Notes covered by such registration statement
effected pursuant hereto, upon advice of counsel, shall reasonably request. The
Company may, if permitted by law, effect any registration requested under this
Section 3 by the filing of a registration statement on Form S-3 (or any
successor or similar short form registration statement). In the case of a
registration pursuant to this Section 3(a), the Company further agrees to cause
the Indenture to continue to be qualified under the Trust Indenture Act of 1939,
as amended, and in the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(d) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to Section 3(a) hereof shall not be deemed to have been effected
(i) unless a registration statement with respect thereto has been
declared effective by the Commission and remains effective in compliance
with the provisions of the Securities Act and the laws of any state or
other jurisdiction applicable to the disposition of Registrable Notes
covered by such registration statement until such time as all of such
Registrable Notes have been disposed of in accordance with such
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registration statement or there shall cease to be any Registrable Notes,
PROVIDED, THAT, except with respect to any Shelf Registration, such period
need not exceed 90 days, and, PROVIDED, FURTHER, that with respect to any
Shelf Registration, such period need not extend beyond the period provided
for in Section 3(f) hereof,
(ii) if, after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement
of the Commission or other governmental or regulatory agency or court for
any reason other than a violation of applicable law solely by any Selling
Holder and has not thereafter become effective or
(iii) if, in the case of an underwritten offering, the conditions
to closing specified in an underwriting agreement to which the Company is a
party are not satisfied or waived other than by reason of any breach or
failure by any Selling Holder, or are not otherwise waived.
The Holders of Registrable Notes to be included in a registration
statement may at any time terminate a request for registration made pursuant to
Section 3(a) in accordance with Section 3(a)(ii)(D).
(e) SELECTION OF UNDERWRITERS. The underwriter or underwriters of each
underwritten offering, if any, of the Registrable Notes to be registered
pursuant to Section 2(a) or Section 3(a) hereof shall be mutually selected by
the Selling Holders owning at least a majority of the aggregate principal amount
of Registrable Notes to be registered and the Company.
(f) SHELF REGISTRATIONS. If the first demand made pursuant to Section
3(a) hereof is for a Shelf Registration, the period for which such Shelf
Registration Statement must remain effective need not extend beyond one year
from the date on which such Shelf Registration Statement initially is declared
effective by the Commission and the period for which any subsequent Shelf
Registration Statement must remain effective need not extend beyond nine months
from the date on which such Shelf Registration Statement initially is declared
effective by the Commission (plus, in each case, a number of Business Days equal
to the number of days, if any, that the Shelf Registration Statement is not kept
effective after the initial date of its effectiveness and prior to such first
year or nine month, as the case may be, anniversary thereof).
4. PIGGYBACK REGISTRATION. If the Company, at any time when a Shelf
Registration Statement covering all outstanding Registrable Notes is not
effective, proposes to register any of its securities under the Securities Act
by registration on any forms other than Form S-4 or S-8 (or any successor or
similar form(s)), whether or not pursuant to registration rights granted to
other holders of its securities and whether or not for sale for its own account,
it shall give prompt written notice to all of the Holders of its intention to do
so and of such Holders' rights (if any) under this Section 4, which notice, in
any event, shall be given at least 30 days prior to such proposed registration.
Upon the written request of any Holder receiving notice of such proposed
registration that is a holder of Registrable Notes (a "PIGGYBACK REQUESTING
HOLDER") made within 20 days after the receipt of any such notice (10 days if
the Company states in such written notice or gives telephonic notice to the
relevant securityholders, with written confirmation to follow promptly
thereafter, stating that (i) such registration will be on Form S-3 and (ii) such
shorter period of time is required because of a planned filing date), which
request shall specify the
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Registrable Notes intended to be disposed of by such Piggyback Requesting Holder
and the minimum offering price at which the Holder is willing to sell its
Registrable Notes, the Company shall, subject to Section 7(b) hereof, effect the
registration under the Securities Act of all Registrable Notes which the Company
has been so requested to register by the Piggyback Requesting Holders thereof;
provided, that,
(A) prior to the effective date of the registration
statement filed in connection with such registration, promptly following
receipt of notification by the Company from the managing underwriter (if an
underwritten offering) of the price at which such securities are to be
sold, the Company shall so advise each Piggyback Requesting Holder of such
price, and if such price is below the minimum price which any Piggyback
Requesting Holder shall have indicated to be acceptable to such Piggyback
Requesting Holder, such Piggyback Requesting Holder shall then have the
right irrevocably to withdraw its request to have its Registrable Notes
included in such registration statement, by delivery of written notice of
such withdrawal to the Company within five business days of its being
advised of such price, without prejudice to the rights of any holder or
holders of Registrable Notes to include Registrable Notes in any future
registration (or registrations) pursuant to this Section 4 or to cause such
registration to be effected as a registration under Section 3(a) hereof, as
the case may be; and
(B) if at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give
written notice of such determination to each Piggyback Requesting Holder
and (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Notes in connection with such
registration (but not from any obligation of the Company to pay the
Expenses in connection therewith), without prejudice, however, to the
rights of any Holder to include Registrable Notes in any future
registration (or registrations) pursuant to this Section 4 or to cause such
registration to be effected as a registration under Section 3(a) hereof, as
the case may be, and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable Notes,
for the same period as the delay in registering such other securities.
No registration effected under this Section 4 shall relieve the Company of
its obligation to effect any registration upon request under Section 3(a) hereof
and no registration effected pursuant to this Section 4 shall be deemed to have
been effected pursuant to Section 3(a) hereof.
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5. EXPENSES. The Company shall pay all Expenses in connection with any
registration initiated pursuant to Sections 2(a), 3(a) or 4 hereof, whether or
not such registration shall become effective and whether or not all or any
portion of the Registrable Notes originally requested to be included in such
registration are ultimately included in such registration.
6. REGISTRATION PROCEDURES. If and whenever the Company is required to
effect any registration under the Securities Act as provided in Sections 2(a),
3(a) and 4 hereof, the Company shall, as expeditiously as possible:
(a) prepare and file with the Commission (promptly and, in the case of
any registration pursuant to Section 3(a), in any event on or before the
date that is (i) 90 days after the end of the period within which requests
for registration may be given to the Company or (ii) if, as of such
ninetieth day, the Company does not have the audited financial statements
required to be included in the registration statement, 30 days after the
receipt by the Company from its independent public accountants of such
audited financial statements, which the Company shall use its reasonable
best efforts to obtain as promptly as practicable) the requisite
registration statement to effect such registration and thereafter use its
reasonable best efforts to cause such registration statement to become and
remain effective; PROVIDED, HOWEVER, that the Company may discontinue any
registration of its securities that are not Registrable Notes at any time
prior to the effective date of the registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
and the Exchange Act with respect to the disposition of all Registrable
Notes covered by such registration statement until such time as all of such
Registrable Notes has been disposed of in accordance with the method of
disposition set forth in such registration statement; PROVIDED, THAT,
except with respect to any Shelf Registration, such period need not extend
beyond 90 days after the effective date of the registration statement; and
PROVIDED, FURTHER, that with respect to the Initial Shelf, such period need
not extend beyond the applicable period provided for in Section 2(b) hereof
and, with respect to any Shelf Registration other than the Initial Shelf,
such period need not exceed the applicable period provided for in Section
3(f) hereof;
(c) furnish to each seller of Registrable Notes covered by such
registration statement and each underwriter, if any, such number of copies
of such drafts and final conformed versions of such registration statement
and of each such amendment and supplement thereto (in each case including
all exhibits and any documents incorporated by reference), such number of
copies of such drafts and final versions of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act,
and such other documents, as the sellers of more than 50% of the aggregate
principal amount of Registrable Notes covered by such registration
statement or any underwriter may reasonably request in writing;
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(d) use its reasonable best efforts (i) to register or qualify all
Registrable Notes and other securities, if any, covered by such
registration statement under such other securities or blue sky laws of such
states or other jurisdictions of the United States of America as the
sellers of Registrable Notes covered by such registration statement shall
reasonably request in writing, (ii) to keep such registration or
qualification in effect for so long as such registration statement remains
in effect and (iii) to take any other action that may be necessary or
reasonably advisable to enable such sellers to consummate the disposition
in such jurisdictions of the securities to be sold by such sellers, except
that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subsection (d) be
obligated to be so qualified, to subject itself to taxation in such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(e) use its reasonable best efforts to cause all Registrable Notes and
other securities, if any, covered by such registration statement to be
registered with or approved by such other federal or state governmental
agencies or authorities as may be necessary in the opinion of counsel to
the Company and counsel to the seller or sellers of Registrable Notes to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Notes;
(f) use its reasonable best efforts to obtain and, if obtained,
furnish to each seller of Registrable Notes, and each such seller's
underwriters, if any, a signed
(i) opinion of counsel for the Company, dated the effective date
of such registration statement (and, if such registration involves an
underwritten offering, dated the date of the closing under the underwriting
agreement and addressed to the underwriters), reasonably satisfactory
(based on the customary form and substance of opinions of issuers' counsel
customarily given in such an offering) in form and substance to such
seller, and
(ii) "cold comfort" letter, dated the effective date of such
registration statement (and, if such registration involves an underwritten
offering, dated the date of the closing under the underwriting agreement
and addressed to the underwriters) and signed by the independent public
accountants who have certified the Company's financial statements included
or incorporated by reference in such registration statement, reasonably
satisfactory (based on the customary form and substance of cold comfort
letters of issuers' independent public accountants customarily given in
such an offering) in form and substance to such seller,
in each case, covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the
case of the accountants' comfort letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' comfort letters delivered
to underwriters in underwritten public offerings of securities;
(g) use its commercially reasonable efforts to cause the Notes covered
by the Registration Statement to be rated with the appropriate rating
agencies, if so requested by
10
the underwriter(s) in connection with such sale, if any, unless such Notes
are already so rated;
(h) provide a CUSIP number for all Registrable Notes not later than
the effective date of the Registration Statement covering such Registrable
Notes and provide the Trustee under the Indenture with printed certificates
for the Registrable Notes which are in a form eligible for deposit with The
Depository Trust Company;
(i) notify each seller of Registrable Notes and other securities
covered by such registration statement, if any, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as
a result of which, the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the written request of
any such seller of Registrable Notes, promptly prepare and furnish to it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus, as supplemented or amended,
shall not include 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 in the light of the circumstances under
which they were made;
(j) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement relating to
the Registrable Notes at the earliest possible moment;
(k) otherwise comply with all applicable rules and regulations of the
Commission and any other governmental agency or authority having
jurisdiction over the offering, and make available to its security holders,
as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, and furnish to each seller of Registrable Notes and to the
managing underwriter, if any, at least ten days prior to the filing thereof
a copy of any amendment or supplement to such registration statement or
prospectus;
(l) use its reasonable best efforts to cause all Registrable Notes
covered by a Registration Statement to be listed on PORTAL or any other
national securities exchange on which similar securities issued by the
Company are then listed, if the listing of such Registrable Notes is then
permitted under the rules of such exchange;
(m) enter into such agreements (including an underwriting agreement in
customary form) and take such other actions as the Holders holding a
majority of the aggregate principal amount of Registrable Notes covered by
such registration statement
11
shall reasonably request in order to expedite or facilitate the disposition
of such Registrable Notes, including customary indemnification;
(n) if requested by the managing underwriter(s) or the Holders of
Registrable Notes being sold in connection with an underwritten offering,
promptly incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriter(s) and the Holders of a
majority of the Registrable Notes being sold agree should be included
therein relating to the plan of distribution with respect to such
Registrable Notes, including without limitation, information with respect
to the aggregate principal amount of Registrable Notes being sold to such
underwriters, the purchase price being paid therefore by such underwriters
and with respect to any other terms of the underwritten offering of the
Registrable Notes to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment as soon
as notified of the matters to be incorporated in such prospectus supplement
or post-effective amendment; and
(o) if requested by the Selling Holders holding a majority of the
aggregate principal amount of Registrable Notes being sold, cooperate with
the Selling Holders of Registrable Notes and the managing underwriter(s),
if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold and not bearing any restrictive
legends; and enable such Registrable Notes to be in such amounts and
registered in such names as the managing underwriter(s) or, if none, the
Selling Holders holding a majority of the aggregate principal amount of
Registrable Notes being sold, may request at least three business days
prior to any sale of Registrable Notes to the underwriters.
As a condition to the obligations of the Company to complete any
registration pursuant to this Agreement with respect to the Registrable Notes of
a Holder, such Holder must furnish to the Company in writing such information
regarding itself, the Registrable Notes held by it and the intended methods of
disposition of the Registrable Notes held by it as is necessary to effect the
registration of such Holders' Registrable Notes and is requested in writing by
the Company. At least thirty days prior to the first anticipated filing date of
a Registration Statement for any registration under this Agreement, the Company
will notify in writing each Holder as to the information referred to in the
preceding sentence which the Company is requesting from that Holder, whether or
not such Holder has elected to have any of its Registrable Notes included in the
Registration Statement. If, within ten days prior to the anticipated filing
date, the Company has not received the requested information from a Holder, then
the Company may file the Registration Statement without including Registrable
Notes of that Holder.
Each Holder agrees that as of the date that a final prospectus is
made available to it for distribution to prospective purchasers of
Registrable Notes it shall cease to distribute copies of any preliminary
prospectus prepared in connection with the offer and sale of such Registrable
Notes. Each Holder further agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in subsection
(i) of this Section 6, such Holder shall forthwith discontinue such Holder's
disposition of Registrable Notes pursuant to the registration statement
relating to such Registrable Notes until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by subsection (i) of
this Section 6 and, if so
12
directed by the Company, 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 relating to such Registrable Notes current at the time of
receipt of such notice. If any event of the kind described in subsection (i) of
this Section 6 occurs and such event is the fault solely of a Holder (or
Holders), such Holder (or Holders) shall pay all Expenses attributable to the
preparation, filing and delivery of any supplemented or amended prospectus
contemplated by subsection (i) of this Section 6.
7. UNDERWRITTEN OFFERINGS.
(a) REQUESTED UNDERWRITTEN OFFERINGS. If requested by the underwriters
in connection with a request for a registration under Section 3 hereof, the
Company shall enter into a firm commitment underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the Company and a majority of the Selling Holders whose
Registered Notes is included in such registration, and the underwriters and to
contain such representations and warranties by the Company and the Selling
Holders and such other terms as are customary in agreements of that type,
including, without limitation, indemnification and contribution to the effect
and to the extent provided in Section 10 hereof.
(b) HOLDERS OF REGISTRABLE NOTES TO BE PARTIES TO UNDERWRITING
AGREEMENT. The holders of Registrable Notes to be distributed by underwriters in
an underwritten offering contemplated by subsection (a) of this Section 7 shall
be parties to the underwriting agreement between the Company and such
underwriters and any such Holder, at its option, may reasonably require that any
or all of the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such Holders and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
Holders. No such Holder shall be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Holder, such Holder's
Registrable Notes and such Holder's intended method of distribution.
8. PREPARATION: REASONABLE INVESTIGATION.
(a) REGISTRATION STATEMENTS. In connection with the preparation and
filing of each registration statement under the Securities Act pursuant to this
Agreement, the Company shall (i) give representatives (designated to the Company
in writing) of each Holder or group of Holders holding at least 20% of the
aggregate principal amount of Registrable Notes registered under such
registration statement, the underwriters, if any, and one firm of counsel, one
firm of accountants and one firm of other agents retained on behalf of all
underwriters and one firm of counsel, one firm of accountants, and one firm of
other agents retained on behalf of Holders holding a majority of the aggregate
principal amount of Registrable Notes covered by such registration statement the
reasonable opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission, and
each amendment thereof or supplement thereto, (ii) upon reasonable advance
notice to the Company, give each of them such reasonable access to all financial
and other records, corporate documents and properties of the Company and its
subsidiaries, as shall be necessary, in the reasonable
13
opinion of such Holders' and such underwriters' counsel, to conduct a reasonable
due diligence investigation for purposes of the Securities Act, and (iii) upon
reasonable advance notice to the Company, provide such reasonable opportunities
to discuss the business of the Company with its officers, directors, employees
and the independent public accountants who have certified its financial
statements as shall be necessary, in the reasonable opinion of such Holders' and
such underwriters' counsel, to conduct a reasonable due diligence investigation
for purposes of the Securities Act.
(b) CONFIDENTIALITY. Each Holder of Registrable Notes shall maintain
the confidentiality of any confidential information received from or otherwise
made available by the Company to such Holder of Registrable Notes. Information
that (i) is or becomes available to a Holder of Registrable Notes from a public
source other than as a result of a disclosure by such Holder or its Affiliates,
(ii) is disclosed to a Holder of Registrable Notes by a third-party source who
the Holder of Registrable Notes reasonably believes is not bound by an
obligation of confidentiality to the Company or (iii) is or becomes required to
be disclosed by a Holder of Registrable Notes by law, including by court order,
shall not be deemed to be confidential information for purposes of this
Agreement. The Holders of Registrable Notes shall not grant access, and the
Company shall not be required to grant access, to information under this Section
8 to any Person who will not agree to maintain the confidentiality (to the same
extent a Holder is required to maintain confidentiality) of any confidential
information received from or otherwise made available to it by the Company or
the holders of Registrable Notes under this Agreement.
9. POSTPONEMENTS.
(a) If the Company shall fail to file any registration statement to be
filed pursuant to a request for registration under Section 3(a) hereof, the
Holders requesting such registration shall have the right to withdraw the
request for registration if such withdrawal shall be made by Holders of Notes
holding an aggregate principal amount of Notes such that the Holders that have
not elected to withdraw do not hold the requisite amount of Notes to initiate a
request under Section 3. Any such withdrawal shall be made by giving written
notice to the Company within 20 days after, in the case of a request pursuant to
Section 3(a) hereof, the date on which a registration statement would otherwise
have been required to have been filed with the Commission under clause (k) of
Section 6 (a) hereof (I.E., 20 days after the date that is 90 days after the
conclusion of the period within which requests for registration may be given to
the Company, or, if, as of such ninetieth day, the Company does not have the
audited financial statements required to be included in the registration
statement, 30 days after the receipt by the Company from its independent public
accountants of such audited financial statements). In the event of such
withdrawal, the request for registration shall not be counted for purposes of
determining the number of registrations to which Holders are entitled pursuant
to Section 3 hereof. The Company shall pay all Expenses incurred in connection
with a request for registration withdrawn pursuant to this paragraph.
(b) The Company shall not be obligated to file any registration
statement, or file any amendment or supplement to any registration statement,
and may suspend any Selling Holder's rights to make sales pursuant to any
effective registration statement, at any time (but not to exceed one time in any
twelve-month period) when the Company, in the good faith judgment of its Board
of Directors, reasonably believes that the filing thereof at the time
14
requested, or the offering of securities pursuant thereto, would adversely
affect a pending or proposed Public Offering of the Company's securities, a
material financing, or a material acquisition, merger, recapitalization,
consolidation, reorganization or similar transaction, or negotiations,
discussions or pending proposals with respect thereto. The filing of a
registration statement, or any amendment or supplement thereto, by the Company
cannot be deferred, and the Selling Holders' rights to make sales pursuant to an
effective registration statement cannot be suspended, pursuant to the provisions
of the preceding sentence for more than ten days after the abandonment or
consummation of any of the foregoing proposals or transactions or for more than
120 days after the date of the Board's determination referenced in the preceding
sentence. If the Company suspends the sellers' rights to make sales pursuant
hereto, the applicable registration period shall be extended by the number of
days of such suspension.
10. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In connection with any
registration statement filed by the Company pursuant to Section 2(a), 3(a) or 4
hereof to the fullest extent permitted by law, the Company shall, and hereby
agrees to, indemnify and hold harmless, each Holder and seller of any
Registrable Notes covered by such registration statement and each other Person
who participates as an underwriter in the offering or sale of such securities
and each other Person, if any, who controls (within the meaning of the Exchange
Act) such Holder or seller or any such underwriter, and their respective
stockholders, directors, officers, employees, partners, agents, and Affiliates
(each, a "Company Indemnitee" for purposes of this Section 10(a)), against any
losses, claims, damages, liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof and whether or not such Indemnified
Party is a party thereto), joint or several, and expenses, including, without
limitation, the reasonable fees, disbursements and other charges of legal
counsel and reasonable costs of investigation, to which such Company Indemnitee
may become subject under the Securities Act or otherwise (collectively, a "Loss"
or "Losses"), insofar as such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered or otherwise
offered or sold under the Securities Act or otherwise, any preliminary
prospectus, final prospectus or summary prospectus related thereto, or any
amendment or supplement thereto (collectively, "Offering Documents"), or any
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 in which they were made not misleading, or any violation by the
Company of any federal or state law, rule or regulation applicable to the
Company and relating to action required of or inaction by the Company in
connection with any such registration; provided, that, the Company shall not be
liable in any such case to the extent that any such Loss arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Offering Documents in reliance upon and in
conformity with information furnished to the Company in a writing duly executed
by such Company Indemnitee specifically stating that it is expressly for use
therein; and provided, further, that the Company shall not be liable to any
Person who participates as an underwriter in the offering or sale of Registrable
Notes or any other person, if any, who controls (within the meaning of the
Exchange Act) such underwriter, in any such case to the extent that any such
Loss arises out of such Person's failure to send or give a copy of the final
prospectus (including any documents incorporated by reference therein), as the
same may be then supplemented or amended, to the Person asserting an untrue
statement or alleged untrue statement or omission or
15
alleged omission at or prior to the written confirmation of the sale of
Registrable Notes to such Person if such statement or omission was corrected in
such final prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Company Indemnitee
and shall survive the transfer of such securities by such Company Indemnitee.
(b) INDEMNIFICATION BY THE OFFERORS AND SELLERS. In connection with
any registration statement filed by the Company pursuant to Section 2(a), 3(a)
or 4 hereof in which a Holder has registered for sale Registrable Notes, each
such Holder or seller of Registrable Notes shall, and hereby agrees to,
indemnify and hold harmless to the fullest extent permitted by law the Company
and each of its directors, officers, employees, agents, partners, stockholders
and Affiliates and each other Person, if any, who controls (within the meaning
of the Exchange Act) the Company and each other seller and such seller's
employees, directors, officers, stockholders, partners, agents and Affiliates
(each, a "HOLDER INDEMNITEE" for purposes of this Section 10(b)), against all
Losses insofar as such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Offering Documents (or any document incorporated by reference therein) or any
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
circumstances in which they were made not misleading, if such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with information furnished to the Company in a writing
duly executed by such Holder or seller of Registrable Notes specifically stating
that it is expressly for use therein; PROVIDED, HOWEVER, that the liability of
such indemnifying party under this Section 10(b) shall be limited to the amount
of the net proceeds received by such indemnifying party in the sale of
Registrable Notes giving rise to such liability. Such indemnity shall remain in
full force and effect, regardless of any investigation made by or on behalf of
the Holder Indemnitee and shall survive the transfer of such securities by such
indemnifying party.
(c) NOTICES OF LOSSES, ETC. Promptly after receipt by an indemnified
party of written notice of the commencement of any action or proceeding
involving a Loss referred to in the preceding subsections of this Section 10,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; PROVIDED, HOWEVER, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding subsections of this Section 10, except to the
extent that the indemnifying party is materially and actually prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, the indemnifying party shall be entitled to participate in
and, unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such Loss, to assume and control the defense thereof, in each case at its own
expense, jointly with any other indemnifying party similarly notified, to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after its assumption of the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties arises in respect of such claim after the
assumption of the defense thereof. No indemnifying party shall be liable for any
settlement of any such action or
16
proceeding effected without its written consent, which shall not be unreasonably
withheld. No indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
of such Loss or which requires action on the part of such indemnified party or
otherwise subjects the indemnified party to any obligation or restriction to
which it would not otherwise be subject.
(d) CONTRIBUTION. If the indemnification provided for in this Section
10 shall for any reason be unavailable to an indemnified party under subsection
(a) or (b) of this Section 10 in respect of any Loss, then, in lieu of the
amount paid or payable under subsection (a) or (b) of this Section 10, the
indemnified party and the indemnifying party under subsection (a) or (b) of this
Section 10 shall contribute to the aggregate Losses (including legal or other
expenses reasonably incurred in connection with investigating the same) (i) in
such proportion as is appropriate to reflect the relative fault of the Company
and the prospective sellers of Registrable Notes covered by the registration
statement which resulted in such Loss or action in respect thereof, with respect
to the statements, omissions or action which resulted in such Loss or action in
respect thereof, as well as any other relevant equitable considerations, or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as shall be appropriate to reflect the relative benefits
received by the Company, on the one hand, and such prospective sellers, on the
other hand, from their sale of Registrable Notes; provided, that, for purposes
of this clause (ii), the relative benefits received by the prospective sellers
shall be deemed not to exceed the amount received by such sellers. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation. The obligations, if any, of the
selling holders of Registrable Notes to contribute as provided in this
subsection (d) are several in proportion to the relative value of their
respective Registrable Notes covered by such registration statement and not
joint. In addition, no Person shall be obligated to contribute hereunder any
amounts in payment for any settlement of any action or Loss effected without
such Person's consent.
(e) OTHER INDEMNIFICATION. The Company and, in connection with any
registration statement filed by the Company pursuant to Section 2(a), each
Holder, shall, and, in connection with any registration statement filed by the
Company pursuant to Section 3(a) or 4, each Holder who has registered for sale
Registrable Notes, shall, with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act, indemnify Holder
Indemnitees and Company Indemnitees, respectively, against Losses, or, to the
extent that indemnification shall be unavailable to a Holder Indemnitee or
Company Indemnitee, contribute to the aggregate Losses of such Holder Indemnitee
or Company Indemnitee in a manner similar to that specified in the preceding
subsections of this Section 10 (with appropriate modifications).
(f) INDEMNIFICATION PAYMENTS. The indemnification and contribution
required by this Section 10 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when any Loss
is incurred and is due and payable.
17
11. REGISTRATION RIGHTS TO OTHERS. If the Company shall at any time
hereafter provide to any holder of any securities of the Company rights with
respect to the registration of such securities under the Securities Act or the
Exchange Act, such rights shall not be in conflict (in a manner that adversely
affects the Holders of Registrable Notes) with or adversely affect any of the
rights provided to the holders of Registrable Notes in, or conflict with any
other provisions included in, this Agreement.
12. RULE 144 AND RULE 144A. The Company shall take all actions reasonably
necessary to enable Holders to sell Registrable Notes without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rule may be amended from time to time, (b)
Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or (c) any similar rules or regulations hereafter adopted by the
Commission, including, without limiting the generality of the foregoing, filing
on a timely basis all reports required to be filed under the Exchange Act. Upon
the written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
13. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended, modified or waived if, but only if, the written consent to such
amendment, modification or waiver has been obtained from (i) except as
provided in clause (ii) below, the Holder or Holders of at least a majority
of the aggregate principal amount of Registrable Notes affected by such
amendment, modification or waiver and (ii) in the case of any amendment,
modification or waiver of any provision of Section 5 or 9 hereof or this
Section 13 or any provisions as to the number of requests for registration to
which holders of Registrable Notes are entitled under Section 3 or 4 hereof,
or any amendment, modification or waiver which adversely affects any right
and/or obligation under this Agreement of any Holder, the written consent of
each Holder so affected.
14. NOMINEES FOR BENEFICIAL OWNERS. In the event that any Registrable
Notes are held by a nominee for the beneficial owner thereof, the beneficial
owner thereof may, at its election in writing delivered to the Company, be
treated as the Holder of such Registrable Notes for purposes of any request
or other action by any Holder or Holders pursuant to this Agreement or any
determination of the number or percentage of Registrable Notes held by any
Holder or Holders contemplated by this Agreement. If the beneficial owner of
any Registrable Notes so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Notes.
15. ASSIGNMENT. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. Any Holder may assign to any permitted
Transferee (as permitted under applicable law) of its Registrable Notes its
rights and obligations under this Agreement, provided that such Transferee shall
agree in writing with the parties hereto prior to the assignment to be bound by
this Agreement as if it were an original party hereto, whereupon such assignee
shall for all purposes be deemed to be a Holder under this Agreement. Except as
provided above or otherwise permitted by this Agreement, neither this Agreement
nor any right, remedy, obligation or liability arising hereunder or by reason
hereof shall be assignable by any Holder without the
18
prior written consent of the other parties hereto. The Company may not assign
this Agreement or any right, remedy, obligation or liability arising hereunder
or by reason hereof.
16. CALCULATION OF PERCENTAGE OR AGGREGATE PRINCIPAL AMOUNT OF REGISTRABLE
NOTES. For purposes of this Agreement, all references to a percentage or amount
of Registrable Notes shall be calculated based upon the Notes outstanding at the
time such calculation is made and shall exclude any Registrable Notes owned by
the Company or any subsidiary of the Company. For the purposes of calculating
any percentage or amount of Registrable Notes as contemplated by the previous
sentence, the terms "Holder", "Initiating Holder" and "Original Holder" shall
include all Affiliates thereof owning any Registrable Notes.
17. TERMINATION OF REGISTRATION RIGHTS. The Company's obligations under
Sections 2(a), 3(a) and 4 hereof to register Notes for sale under the Securities
Act shall terminate on the earlier of (i) the first date on which no Registrable
Notes are outstanding or (ii) the first date on which less than 10% of the
aggregate principal amount of Notes issued pursuant to the Plan are held by the
Original Holders or their Affiliates.
18. MISCELLANEOUS.
(a) FURTHER ASSURANCES. Each of the parties hereto shall execute such
documents and other papers and perform such further acts as may be reasonably
required or advisable to carry out the provisions of this Agreement and the
transactions contemplated hereby.
(b) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
any provisions hereof.
(c) CONFLICTING INSTRUCTIONS. A person or entity is deemed to be a
holder of Registrable Notes whenever such person or entity owns of record such
Registrable Notes. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Notes, the Company will act upon the basis of instructions, notice
or election received from the registered owner of such Registrable Notes.
(d) REMEDIES. Each Holder, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and the Company
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(e) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding of the parties hereto in respect of the subject matter
contained herein, and there are no restrictions, promises, representations,
warranties, covenants, or undertakings with respect to the subject matter
hereof, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the parties
hereto with respect to the subject matter hereof.
(f) NOTICES. Any notices or other communications to be given hereunder
by any party to another party shall be in writing, shall be delivered
personally, by telecopy, by certified
19
or registered mail, postage prepaid, return receipt requested, or by Federal
Express or other comparable delivery service, to the address of the party set
forth on Schedule B hereto or to such other address as the party to whom notice
is to be given may provide in a written notice to the other parties hereto, a
copy of which shall be on file with the Secretary of the Company. Notice shall
be effective when delivered if given personally, when receipt is acknowledged if
telecopied, three days after mailing if given by registered or certified mail as
described above, and one business day after deposit if given by Federal Express
or comparable delivery service.
(g) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of
New York.
(h) SEVERABILITY. Notwithstanding any provision of this Agreement,
neither the Company nor any other party hereto shall be required to take any
action which would be in violation of any applicable Federal or state securities
law. The invalidity or unenforceability of any provision of this Agreement in
any jurisdiction shall not affect the validity, legality or enforceability of
any other provision of this Agreement in such jurisdiction or the validity,
legality or enforceability of this Agreement, including any such provision, in
any other jurisdiction, it being intended that all rights and obligations of the
parties hereunder shall be enforceable to the fullest extent permitted by law.
(i) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
DADE BEHRING INC.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name:
Title:
GUARANTORS:
DADE BEHRING HOLDINGS INC.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name:
Title:
DADE MICROSCAN INC.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name:
Title:
DADE FINANCE INC.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name:
Title:
SYVA DIAGNOSTICS HOLDING CO.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name:
Title:
SYVA CHILDCARE INC.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name:
Title:
SYVA COMPANY
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name:
Title:
CHIMERA RESEARCH & CHEMICAL
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name:
Title:
BNY MIDWEST TRUST COMPANY, as Trustee,
-----------------------------------
Name:
Title:
HOLDERS:
By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: XXXXXX X. XXXXXX
Title: Managing Director
By: /s/ XXXXXX XXXXX
-----------------------------------
Name: XXXXXX XXXXX
Title: Director
Name of Institution: BNP Paribas
HOLDERS:
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
Name of Institution: ING Capital LLC, Acting as
Agent for Middenbank, Curacao N.V.
HOLDERS:
By: /s/ Xxxxx Illegible
-----------------------------------
Name: Xxxxx Illegible
Title: President of the General Partner
Name of Institution: Bedford Falls Investors, L.P.
HOLDERS:
By: /s/ Xxxxx X Xxxxx
-----------------------------------
Name: Xxxxx X Xxxxx
Title: General Partner
Name of Institution: Fernwood Associates, L.P.
HOLDERS:
By: OZ Management, LLC
as Investment Manager
By: /s/ Xxxxxx X. Och
-----------------------------------
Name: Xxxxxx X. Och
Title: Senior Managing Member
Name of Institution: OZ MASTER FUND, LTD.
HOLDERS:
By: OZF Management, LP
as Investment Manager
By: OZF Management, LLC
General Partner
By: /s/ Xxxxxx X. Och
-----------------------------------
Name: Xxxxxx X. Och
Title: Senior Managing Member
Name of Institution: OZF CREDIT
OPPORTUNITIES MASTER FUND II, LTD.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Managing Member
Name of Institution: OZF CREDIT
OPPORTUNITIES MASTER FUND II, LTD.
HOLDERS:
By: OZF Management, LP
as Investment Manager
By: OZF Management, LLC
General Partner
By: /s/ Xxxxxx X. Och
-----------------------------------
Name: Xxxxxx X. Och
Title: Senior Managing Member
Name of Institution: OZF CREDIT
OPPORTUNITIES MASTER FUND, LTD.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Managing Member
Name of Institution: OZF CREDIT
OPPORTUNITIES MASTER FUND, LTD.
HOLDERS:
By: /s/ Xxxxx Argenhano
-----------------------------------
Name: Xxxxx Argenhano
Title: CFO
Name of Institution: Thracia, LLC
HOLDERS:
XXX XXXXXX
SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
Name: XXXX XXXXX
By: /s/ XXXX XXXXX
-----------------------------------
Name: XXXX XXXXX
Title: VICE PRESIDENT
Name of Institution:
HOLDERS:
XXX XXXXXX
SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ XXXX XXXXX
-----------------------------------
Name: XXXX XXXXX
Title: VICE PRESIDENT
Name of Institution:
HOLDERS:
XXX XXXXXX
PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ XXXX XXXXX
-----------------------------------
Name: XXXX XXXXX
Title: VICE PRESIDENT
Name of Institution:
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxx., 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Reliance STD
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxx., 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Goldentree Univ. of Chicago
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxx., 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Goldentree Loan Opp 1
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxx., 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Goldentree HY Value Master
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxx., 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Goldentree HY 2
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxx., 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Goldentree High Yield Opportunity
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxx., 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Goldentree High Yield Master
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxx., 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Goldentree Broad Foundation
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxx., 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Goldentree B&W Master Tobacco
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxx., 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Goldentree--Xxxxxxx Xxxxx
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxx., 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Goldentree--Safety Natl.
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxxxxx, 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Xxx Xxxxx
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxxxxx, 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: Goldentree -- Alpha US Subfund II
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Partner
Name of Institution: GoldenTree Asset Management
000 Xxxx Xxxxxx, 00xx Xx
Xxx Xxxx, XX 00000
(000) 000-0000
For: DB Structured Products, Inc.
HOLDERS:
By: /s/ XXX X. XXXXXXX
-----------------------------------
Name: Xxx X. Xxxxxxx
Title: Portfolio Manager
Name of Institution: Woodmont Investments Limited
HOLDERS:
By: /s/ XXX X. XXXXXXX
-----------------------------------
Name: Xxx X. Xxxxxxx
Title: General Partner
Name of Institution: The Xxx Xxxxxxx Master LP
HOLDERS:
By: /s/ XXXX X. XxXXXXXXX
-----------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Senior Managing Director
Name of Institution: Illegible
HOLDERS: XXXXXXXXX & Co., L.P.
By: Xxxxxxxxx Partners, L.P.
By: Xxxxxxxxx Partners Inc.
By: /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
Title: V.P.
Name of Institution: Xxxxxxxxx & Co., L.P.
AVENUE SPECIAL SITUATIONS FUND II, L.P.
By: Avenue Capital Partners II, LLC, General Partner
By: GLS Partners II, LLC, Managing Member
of the General Partner
By: /s/ XXXXX [ILLEGIBLE]
-------------------------------------------------
Name: Xxxxx [ILLEGIBLE]
Title: Member
HOLDERS:
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Director
Name of Institution: Xxxxxx Xxxxxxx
Prime Income Trust
HOLDERS:
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorization Signatory
Name of Institution: Zurich Institutional
Benchmarks
Master Fund Limited
HOLDERS:
By: /s/ XXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Name of Institution: Deutsch Bank
Trust Company Americas
RE: Sr. Sub Notes
Registration Rights Agreement
Halcyon Restructuring Fund, L.P.
By: Halcyon/Xxxx X. Stifka Management Co. LLC
Managing General Partner
/s/ XXXXX XXXXXXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title of Institution: Chief Financial Officer
HOLDERS: Loeb Partners Corporation
By: /s/ XXXXXX X. XXXX
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
Name of Institution: Loeb Partner Corp.
HOLDERS:
By: /s/ XXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Officer
Name of Institution: Fleet National Bank
SCHEDULE A
HOLDERS OF REGISTRABLE NOTES
Principal Amount
Holder of Notes Owned
------ -----------------
DB TRUST AMERICAS 7,382,255.00
AG CAPITAL FUNDING 1,738,097.00
GOLDENTREE - ALPHA US SUBFUND II 112,144.00
AMEX - KZH CYPRESSTREE-1 3,118,466.00
AMEX - KZH ING-2 LLC 2,422,815.00
XXXXXX XXXXXX - SILVER OAK CAP 20,317,760.00
AVENUE SPEC. SIT. FUND II 7,178,700.00
BEAR XXXXXXX 989,904.00
BEDFORD FALLS INVESTORS 2,930,940.00
BKBOSTON/FLEET 510,694.00
BLACK DIAMOND OFFSHORE 646,861.00
BLUE RIDGE LP 9,683,329.00
BNP PARIBAS 1,084,343.00
CONIFER SECURITIES 845,090.00
CONTINENTAL CASUALTY 2,517,338.00
DB STRUCTURED PRODUCTS, INC. 241,322.00
XXXXXXXXX & CO. 2,163,220.00
DOUBLE BLACK DIAMOND OFFSHORE 3,718,883.00
XXX XXXXX 29,811.00
EPSILON - GLOBAL MASTER 283,908.00
EPSILON-GLOBAL MASTER FUND II 280,919.00
FERNWOOD ASSOC 4,079,502.00
GOLDENTREE - SAFETY NATL 144,793.00
GOLDENTREE - XXXXXXX XXXXX 116,402.00
GOLDENTREE B&W MASTER TOBACCO 158,988.00
GOLDENTREE BROAD FOUNDATION 29,811.00
GOLDENTREE HIGH YIELD MASTER 2,547,500.00
GOLDENTREE HIGH YIELD OPPORTUN 1,107,947.00
GOLDENTREE HY 2 1,054,093.00
GOLDENTREE HY VALUE MASTER 116,402.00
GOLDENTREE LOAN OPP I 1,964,138.00
GOLDENTREE UNIV OF CHICAGO 99,368.00
XXXXXXX XXXXX XX PTNRS L.P. 8,197,195.00
XXXXXX CAPITAL 9,603,237.00
HALCYON RESTRUCTURING FUND LP 22,705,357.00
HARVEST SENIOR INCOME PARTNERS 407,290.00
ING CAPITAL 3,912,941.00
LOEB PARTNERS 1,812,804.00
MARINER OPPORTUNITIES 11, LP 1,404,594.00
XXXXX US 2,983,664.00
XXXXXX XXXXXXX PRIME INCOME TR 5,008,117.00
XXXXXX XXXXXXX XX FUND 1,617,195.00
OZ MASTER FUND LTD. 59,648,331.00
OZF CREDIT OPPO MASTERFUND 8,192,402.00
OZF CREDIT OPPORTUNITIES II 12,474,645.00
PARA INTERNATIONAL 2,191,723.00
PARA INVESTORS LP 1,048,812.00
PARA PARTNERS LP 3,899,407.00
PERRY PRINCIPALS LLC 1,152,236.00
RELIANCE STD 73,816.00
XXXXXXX CAPITAL MGMT XX XX 6,386,163.00
XXXXXXX INTERNATIONAL FUND LTD 6,386,163.00
SENECA CAPITAL L.P. 25,998,123.00
STANDARD BK LONDON 1,378,183.00
STRATEGIC VALUE MASTER 255,517.00
TENSOR ENDOWMENT LTD. 823,788.00
THE XXX XXXXXXX MASTER LTD 2,072,048.00
THIRD POINT OFFSHORE 3,149,475.00
THIRD POINT PARTNERS 1,729,364.00
THIRD POINT- POINTS W INTL INV 827,419.00
THIRD POINT-BANZAI OFFSHORE FD 184,118.00
THIRD POINT-BANZAI PARTNERS 228,341.00
THRACIA LLC 1,123,675.00
VKM PRIME RATE INCOME 6,305,525.00
VKM SENIOR FLOAT RATE 887,175.00
VKM SNR INC TRT 6,723,321.00
WOODMONT INVESTMENTS LTD. 3,725,275.00
YORK CAPITAL 20,628,506.00
ZURICH INSTITUTIONAL BENCHMARK 550,850.00
25
SCHEDULE B
NOTICES
If to the Company, to:
Dade Behring Holdings, Inc.
0000 Xxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx, General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X.X. Xxxxxxxxxx, P.C.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Holders, to:
such Holder, at such Holder's address or to such Holder's telephone or telecopy
number reflected in the Company's books and records
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Rise X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
