EXHIBIT 4(E)
EXECUTION COPY
RESALE REGISTRATION RIGHTS AGREEMENT
AMONG
L-3 COMMUNICATIONS HOLDINGS, INC.,
THE COMPANY
AND
L-3 COMMUNICATIONS CORPORATION,
HYGIENETICS ENVIRONMENTAL SERVICES, INC.,
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.,
L-3 COMMUNICATIONS AYDIN CORPORATION,
MPRI, INC.,
L-3 COMMUNICATIONS SPD TECHNOLOGIES, INC.,
SPD HOLDINGS, INC.,
SPD ELECTRICAL SYSTEMS, INC.,
SPD SWITCHGEAR, INC.,
PAC ORD, INC.,
XXXXXXXX, INC.,
POWER PARAGON, INC.,
L-3 COMMUNICATIONS ESSCO, INC.,
ELECTRODYNAMICS, INC.,
INTERSTATE ELECTRONICS CORPORATION,
SOUTHERN CALIFORNIA MICROWAVE INC.,
L-3 COMMUNICATIONS STORM CONTROL SYSTEMS, INC.,
L-3 COMMUNICATIONS DBS MICROWAVE, INC. AND
MICRODYNE CORPORATION
AS GUARANTORS
AND
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DATED AS OF OCTOBER 24, 2001
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of October 24, 2001 between
L-3 Communications Holdings, Inc., a Delaware corporation (together with any
successor entity, herein referred to as the "Company"), and L-3 Communications
Corporation, a Delaware corporation ("L-3 Communications"), Hygienetics
Environmental Services, Inc., a Delaware corporation, L-3 Communications ILEX
Systems, Inc, a Delaware corporation, L-3 Communications Aydin Corporation, a
Delaware corporation, MPRI, Inc., a Delaware corporation, L-3 Communications
SPD Technologies, Inc., a Delaware corporation, SPD Holdings, Inc., a Delaware
corporation, SPD Electrical Systems, Inc., a Delaware corporation, SPD
Switchgear, Inc., a Delaware corporation, Pac Ord, Inc., a Delaware
corporation, Xxxxxxxx, Inc., a Delaware corporation, Power Paragon, Inc., a
Delaware corporation, L-3 Communications ESSCO, Inc., a Delaware corporation,
Electrodynamics, Inc., an Arizona Corporation, Interstate Electronics
Corporation, a California Corporation, Southern California Microwave Inc, a
California corporation, L-3 Communications Storm Control Systems, Inc., a
California corporation, L-3 Communications DBS Microwave, Inc., a California
corporation and Microdyne Corporation, a Maryland corporation (collectively,
including L-3 Communications, the "Guarantors"), and Xxxxxx Brothers Inc.,
Bear, Xxxxxxx & Co. Inc. and Credit Suisse First Boston Corporation (the
"Initial Purchasers").
Pursuant to the Purchase Agreement, dated October 18, 2001, among the
Company, the Guarantors and the Initial Purchasers (the "Purchase Agreement"),
the Initial Purchasers have agreed to purchase from the Company up to
$350,000,000 ($420,000,000 if the Initial Purchasers exercise their option to
purchase additional CODES in full) in aggregate principal amount of the
Company's 4.00% Senior Subordinated Convertible Contingent Debt Securities due
2011 ("CODES"). The CODES will be convertible into fully paid, nonassessable
shares of common stock, par value $0.01 per share, of the Company (the "Common
Stock") on the terms, and subject to the conditions, set forth in the Indenture
(as defined herein). To induce the Initial Purchasers to purchase the CODES,
the Company and the Guarantors have agreed to provide the registration rights
set forth in this Agreement pursuant to Section 3(i) of the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized terms
shall have the following meanings:
Additional Amounts: As defined in Section 3(a) hereof.
Additional Amounts Payment Date: Each Interest Payment Date. For purposes
of this Agreement, if no CODES are outstanding, "Additional Amounts Payment
Date" shall mean each March 15 and September 15.
Advice: As defined in Section 4(c)(ii) hereof.
Affiliate: As such term is defined in Rule 405 under the Securities Act.
Agreement: This Resale Registration Rights Agreement.
Blue Sky Application: As defined in Section 6(a) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: A day other than a Saturday or Sunday or any federal holiday
in the United States
Closing Date: The date of this Agreement.
CODES: As defined in the preamble hereto.
Commission: Securities and Exchange Commission.
Common Stock: As defined in the preamble hereto.
Company: As defined in the preamble hereto.
Effectiveness Period: As defined in Section 2(a)(iii) hereof.
2
Effectiveness Target Date: As defined in Section 2(a)(ii) hereof.
Exchange Act: Securities Exchange Act of 1934, as amended.
Filing Deadline: As defined in Section 2(a)(i) hereof.
Holder: A Person who owns, beneficially or otherwise, Transfer Restricted
Securities.
Indemnified Holder: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of October 24, 2001, among the Company,
the Guarantors (as defined therein) and The Bank of New York, as trustee (the
"Trustee"), pursuant to which the CODES are to be issued, as such Indenture is
amended, modified or supplemented from time to time in accordance with the
terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture.
Majority of Holders: Holders holding 50% in aggregate principal amount of
the CODES outstanding at the time of determination of the Majority of Holders;
provided, however, that, for purposes of this definition, a holder of shares of
Common Stock which constitute Transfer Restricted Securities that were
previously issued upon conversion of CODES shall be deemed to hold an aggregate
principal amount of CODES (in addition to the principal amount of CODES held by
such holder) equal to the product of (x) the number of such shares of Common
Stock held by such holder and (y) the prevailing conversion price, such
prevailing conversion price as determined in accordance with Section 12 of the
Indenture.
NASD: National Association of Securities Dealers, Inc.
Notice and Questionnaire: The Notice of Registration Statement and Selling
Security Holder Election and Questionnaire in substantially the form attached
or Exhibit A hereto.
Person: An individual, partnership, corporation, unincorporated
organization, trust, joint venture or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Questionnaire Deadline: As defined in Section 2(b) hereof.
Record Holder: With respect to any Additional Amounts Payment Date, each
Person who is a Holder on the record date with respect to the Interest Payment
Date on which such Additional Amounts Payment Date shall occur. In the case of
a Holder of shares of Common Stock issued upon conversion of the CODES, "Record
Holder" shall mean each Person who is a Holder of shares of Common Stock which
constitute Transfer Restricted Securities on the March 1 or September 1
immediately preceding the Additional Amounts Payment Date.
Registration Default: As defined in Section 3(a) hereof.
Registration Statement: As defined in Section 2(a)(i) hereof.
Sale Notice: As defined in Section 4(e) hereof.
Securities Act: Securities Act of 1933, as amended.
Suspension Period. As defined in Section 4(b)(i) hereof.
TIA: Trust Indenture Act of 1939, as in effect on the date the Indenture
is qualified under the TIA.
3
Transfer Restricted Securities: Each CODES and each share of Common Stock
issued upon conversion of CODES until the earliest to occur of:
(i) the date on which such CODES or such share of Common Stock issued
upon conversion has been effectively registered under the Securities Act
and disposed of in accordance with the Registration Statement;
(ii) the date on which such CODES or such share of Common Stock issued
upon conversion (A) has been transferred in compliance with Rule 144 under
the Securities Act or (B) may be sold or transferred pursuant to Rule 144
under the Securities Act without regard to the volume limitations thereof
(or any other similar provision then in force); and
(iii) the date on which such CODES or such share of Common Stock
issued upon conversion ceases to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or otherwise).
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to
the public.
2. Registration.
(a) The Company and the Guarantors shall:
(i) not later than 90 days after the earliest date of original
issuance of any of the CODES (the "Filing Deadline"), cause a
registration statement to be filed pursuant to Rule 415 under the
Securities Act (the "Registration Statement"), which Registration
Statement shall provide for resales of all Transfer Restricted
Securities held by Holders that have provided the information required
pursuant to the terms of Section 2(b) hereof;
(ii) use all commercially reasonable efforts to cause the
Registration Statement to be declared effective by the Commission as
promptly as is practicable, but in no event later than 180 days after
the earliest date of original issuance of any of the CODES (the
"Effectiveness Target Date"); and
(iii) use all commercially reasonable efforts to keep the
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to the
extent necessary to ensure that: (A) it is available for resales by
the Holders of Transfer Restricted Securities entitled to the benefit
of this Agreement and (B) conforms with the requirements of this
Agreement and the Securities Act and the rules and regulations of the
Commission promulgated thereunder as announced from time to time, for
a period (the "Effectiveness Period") of:
(1) two years following the last date of original issuance of
the CODES; or
(2) such shorter period that will terminate when (x) all of
the Holders of Transfer Restricted Securities (other than the
Company and its Affiliates) are able to sell all Transfer
Restricted Securities without restriction pursuant to the volume
limitation provisions of Rule 144 under the Securities Act or any
successor rule thereto, (y) when all Transfer Restricted
Securities have ceased to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or otherwise)
or (z) all Transfer Restricted Securities registered under the
Registration Statement have been sold.
(b) No Holder of Transfer Restricted Securities may include any of its
Transfer Restricted Securities in the Registration Statement pursuant to this
Agreement unless such Holder furnishes to the Company in writing, prior to or on
the 20th Business Day after the date the Notice and Questionnaire is given to
Holders (the "Questionnaire Deadline"), such information as the Company may
reasonably request for use in connection with the Registration Statement or
Prospectus or preliminary Prospectus included therein and in any application to
be filed with or under state securities laws. In connection with all such
requests for information from Holders of Transfer Restricted Securities, the
Company shall notify such Holders of the requirements set forth in the
4
preceding sentence. No Holder of Transfer Restricted Securities shall be
entitled to Additional Amounts pursuant to Section 3 hereof unless such Holder
shall have provided all such reasonably requested information prior to or on
the Questionnaire Deadline. Each Holder as to which the Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make information previously furnished to
the Company by such Holder not materially misleading.
3. Additional Amounts.
(a) If:
(i) the Registration Statement is not filed with the Commission prior
to or on the Filing Deadline;
(ii) the Registration Statement has not been declared effective by the
Commission prior to or on the Effective Target Date;
(iii) subject to the provisions of Section 4(b)(i) hereof, the
Registration Statement is filed and declared effective but, during the
Effectiveness Period, shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within five
Business Days by a post-effective amendment to the Registration Statement
or a report filed with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act that cures such failure and, in the case of a
post-effective amendment, is itself immediately declared effective; or
(iv) prior to or on the 45th or 60th day, as the case may be, of any
Suspension Period, such suspension has not been terminated,
(each such event referred to in foregoing clauses (i) through (iv), a
"Registration Default"), the Company and the Guarantors jointly and severally
hereby agree to pay additional amounts ("Additional Amounts") with respect to
the Transfer Restricted Securities from and including the day following the
Registration Default to but excluding the day on which the Registration Default
has been cured which shall accrue as follows:
(A) in respect of the CODES, to each holder of CODES, (x) during
the first 90-day period during which a Registration Default shall have
occurred and be continuing, at the rate of an additional 0.25% of the
principal amount of the CODES per year, and (y) during the period
commencing on the 91st day following the day the Registration Default
shall have occurred and be continuing, at the rate of an additional
0.50% of the principal amount of the CODES per year; provided that in
no event shall Additional Amounts accrue at a rate per year exceeding
0.50% of the principal amount of the CODES; and
(B) in respect of any shares of Common Stock issued upon
conversion of CODES, to each holder of such shares of Common Stock,
(x) during the first 90-day period in which a Registration Default
shall have occurred and be continuing, at the rate of an additional
0.25% of the principal amount of the CODES converted into such shares
of Common Stock per year, and (y) during the period commencing the
91st day following the day the Registration Default shall have
occurred and be continuing, at the rate of an additional 0.50% of the
principal amount of the CODES converted into such shares of Common
Stock per year; provided, however, that in no event shall Additional
Amounts accrue at a rate per year exceeding 0.50% of the principal
amount of the CODES converted into such shares of Common Stock.
(b) All accrued Additional Amounts shall be paid in arrears to Record
Holders by the Company or the Guarantors on each Additional Amounts Payment Date
by wire transfer of immediately available funds. Following the cure of all
Registration Defaults relating to any particular Note or share of Common Stock
issued upon conversion of CODES, the accrual of Additional Amounts with respect
to such CODES or such share of Common Stock shall cease.
All obligations of the Company and the Guarantors to pay Additional Amounts
set forth in this Section 3 with respect to any Transfer Restricted Security at
the time such security ceases to be a
5
Transfer Restricted Security shall survive until such time as all such
obligations with respect to such Transfer Restricted Security shall have been
satisfied in full provided, however, that the Additional Amounts shall cease to
accrue on the day immediately prior to the date such Transfer Restricted
Securities cease to be Transfer Restricted Securities.
The Additional Amounts set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for
Registration Defaults.
4. Registration Procedures.
(a) In connection with the Registration Statement, the Company and the
Guarantors shall comply with all the provisions of Section 4(b) hereof and
shall use all reasonable efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant thereto, shall
prepare and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Securities Act.
(b) In connection with the Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted
Securities, the Company and the Guarantors shall:
(i) Subject to any notice by the Company and the Guarantors in
accordance with this Section 4(b) of the existence of any fact or event of
the kind described in Section 4(b)(iii)(D), use its reasonable efforts to
keep the Registration Statement continuously effective during the
Effectiveness Period; upon the occurrence of any event that would cause any
the Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not be effective and
usable for the resale of Transfer Restricted Securities during the
Effectiveness Period, the Company and the Guarantors shall file promptly an
appropriate amendment to the Registration Statement or a report filed with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, in the case of clause (A), correcting any such misstatement
or omission, and, in the case of either clause (A) or (B), use all
reasonable efforts to cause such amendment to be declared effective and the
Registration Statement and the related Prospectus to become usable for
their intended purposes as soon as practicable thereafter. Notwithstanding
the foregoing, the Company and the Guarantors may suspend the effectiveness
of the Registration Statement by written notice to the Holders for a period
not to exceed an aggregate of 45 days in any 90-day period (each such
period, a "Suspension Period") if:
(x) an event occurs and is continuing as a result of which the
Registration Statement would, in the Company's and the Guarantors'
reasonable judgment, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(y) the Company and the Guarantors reasonably determine that the
disclosure of such event at such time would have a material adverse
effect on the business of the Company and the Guarantors (and their
subsidiaries, if any, taken as a whole);
provided, however, that in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the disclosure
of which would impede the Company's and the Guarantors' ability to consummate
such transaction, the Company and the Guarantors may extend a Suspension Period
from 45 days to 60 days; provided, however, that Suspension Periods shall not
exceed an aggregate of 90 days in any 360-day period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective during the Effectiveness
Period; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Securities Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act with
6
respect to the disposition of all securities covered by the Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in the
Registration Statement or supplement to the Prospectus.
(iii) Advise the underwriter(s), if any, and selling Holders promptly
(but in any event within five Business Days) and, if requested by such
Persons, to confirm such advice in writing:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment thereto, when
the same has become effective,
(B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus
or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement under the Securities
Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for any
of the preceding purposes, or
(D) of the existence of any fact or the happening of any event,
during the Effectiveness Period, that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of any additions
to or changes in the Registration Statement or the Prospectus in order
to make the statements therein not misleading.
Each Holder of this Security, by accepting the same, agrees to hold any
communication from the Company and the Guarantors pursuant to this paragraph
4(b)(iii) in confidence.
(iv) If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, use
its reasonable efforts to obtain the withdrawal or lifting of such order at
the earliest possible time.
(v) Furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, a copy of the
Registration Statement and copies of any Prospectus included therein (other
than documents incorporated by reference after the initial filing of the
Registration Statement), which documents will be subject to the review of
such Holders and underwriter(s), if any, for a period of at least ten
Business Days, and the Company and the Guarantors will not file the
Registration Statement or Prospectus (other than documents incorporated by
reference) to which a selling Holder of Transfer Restricted Securities
covered by the Registration Statement or the underwriter(s), if any, shall
reasonably object within five Business Days after the receipt thereof. The
Company and the Guarantors shall also furnish to each of the selling
Holders and each of the underwriter(s), if any, before filing with the
Commission, if reasonably practicable, or otherwise promptly after filing
with the Commission, copies of any amendments to the Registration Statement
or supplements to the Prospectus (other than documents incorporated by
reference after the initial filing of the Registration Statement), and to
make the Company's and the Guarantors' representatives available for
discussion of such amendments or supplements and make such changes in such
amendments or supplements prior to the filing thereof, if reasonably
practicable, or prepare and file further amendments or supplements, as the
selling Holders or underwriter(s), if any, may reasonably request. A
selling Holder or underwriter, if any, shall be deemed to have reasonably
objected to such filing if the Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed, contains
a material misstatement or omission.
7
(vi) Make available at reasonable times for inspection by one or more
representatives of the selling Holders, designated in writing by a Majority
of Holders whose Transfer Restricted Securities are included in the
Registration Statement, any underwriter participating in any distribution
pursuant to the Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate documents and properties
of the Company and the Guarantors as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and
cause the Company's and the Guarantors' officers, directors, managers and
employees to supply all information reasonably requested by any such
representative or representatives of the selling Holders, underwriter,
attorney or accountant in connection with the Registration Statement after
the filing thereof and before its effectiveness; provided, however, that
any information designated by the Company as confidential at the time of
delivery of such information shall be kept confidential by the recipient
thereof; provided further, that in no event shall the Company be required
to furnish any material nonpublic information pursuant to this subsection
(vi).
(vii) If reasonably requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Registration Statement
or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and underwriter(s), if
any, may request to have included therein, including, without limitation:
(A) information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, (B) information with respect to the principal amount
of CODES or number of shares of Common Stock being sold to such
underwriter(s), (C) the purchase price being paid therefor and (D) any
other terms of the offering of the Transfer Restricted Securities to be
sold in such offering; provided, however, that with respect to any
information requested for inclusion by a selling Holder, this clause (vii)
shall apply only to such information that relates to the Transfer
Restricted Securities to be sold by such selling Holder; and make all
required filings of such Prospectus supplement or post-effective amendment
as soon as reasonably practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
(viii) Furnish to each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto (and any
documents incorporated by reference therein or exhibits thereto (or
exhibits incorporated in such exhibits by reference) as such Person may
request).
(ix) Deliver to each selling Holder and each of the underwriter(s), if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact or event of
the kind described in Section 4(b)(iii)(D), the Company and the Guarantors
hereby consent to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto.
(x) If an underwriting agreement is entered into and the registration
is an Underwritten Registration, the Company and the Guarantors shall:
(A) upon request, furnish to each underwriter and, in the case of
clause (1), to each selling Holder, in such substance and scope as
they may reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of
closing of any sale of Transfer Restricted Securities in an
Underwritten Registration:
(1) a certificate, dated the date of such closing, signed by
the Chief Financial Officer of the Company and each of the
Guarantors confirming, as of the date thereof, the matters set
forth in Section 5(h) of the Purchase Agreement and such other
matters as such parties may reasonably request;
8
(2) opinions, each dated the date of such closing, of counsel
to the Company covering such of the matters as are customarily
covered in legal opinions to underwriters in connection with
primary underwritten offerings of securities; and
(3) customary comfort letters, dated the date of such closing,
from the Company's independent accountants (and from any other
accountants whose report is contained or incorporated by reference
in the Registration Statement), in the customary form and covering
matters of the type customarily covered in comfort letters to
underwriters in connection with primary underwritten offerings of
securities;
(B) set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no less
protective than those set forth in Section 6 hereof with respect to
all parties to be indemnified by the Company and the Guarantors; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the selling
Holders pursuant to this clause (x).
(xi) Before any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s), if any, may
reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Registration Statement; provided,
however, that the Company and the Guarantors shall not be required (A) to
register or qualify as a foreign corporation or a dealer of securities
where it is not now so qualified or to take any action that would subject
it to the service of process in any jurisdiction where it is not now so
subject or (B) to subject themselves to taxation in any such jurisdiction
if they are not now so subject.
(xii) Cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends (unless required by applicable securities laws) and
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any, may
request at least two Business Days before any sale of Transfer Restricted
Securities made by such underwriter(s).
(xiii) Use all reasonable efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other U.S. governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s), if
any, to consummate the disposition of such Transfer Restricted Securities.
(xiv) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have occurred,
use all reasonable efforts to prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(xv) Provide CUSIP numbers for all Transfer Restricted Securities not
later than the effective date of the Registration Statement and provide the
Trustee under the Indenture with certificates for the CODES that are in a
form eligible for deposit with The Depository Trust Company.
(xvi) Cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter that is required to be retained in accordance with the rules
and regulations of the NASD.
9
(xvii) Otherwise use their best efforts to comply with all applicable
rules and regulations of the Commission and all reporting requirements
under the rules and regulations of the Exchange Act.
(xviii) Cause the Indenture to be qualified under the TIA not later
than the effective date of the Registration Statement required by this
Agreement, and, in connection therewith, cooperate with the Trustee and the
holders of CODES to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of the
TIA, and execute and use all reasonable efforts to cause the Trustee
thereunder to execute all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner.
(xix) Cause all Transfer Restricted Securities covered by the
Registration Statement to be listed or quoted, as the case may be, on each
securities exchange or automated quotation system on which similar
securities issued by the Company are then listed or quoted.
(xx) Provide promptly to each Holder upon written request each
document filed with the Commission pursuant to the requirements of Section
13 and Section 15 of the Exchange Act after the effective date of the
Registration Statement.
(xxi) If reasonably requested by the underwriters, if any, make
appropriate officers of the Company and the Guarantors reasonably available
to the underwriters for meetings with prospective purchasers of the
Transfer Restricted Securities and prepare and present to potential
investors customary "road show" material in a manner consistent with other
new issuances of other securities similar to the Transfer Restricted
Securities.
(c) Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 4(b)(iii)(D) hereof, such Holder will, and
will use its reasonable efforts to cause any underwriter(s) in an Underwritten
Offering to, forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the Registration Statement until:
(i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 4(b)(xv) hereof; or
(ii) such Holder is advised in writing (the "Advice") by the Company
that the use of the Prospectus may be resumed, and has received copies of
any additional or supplemental filings that are incorporated by reference
in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of
suspension.
(d) Each Holder who intends to be named as a selling Holder in the
Registration Statement shall furnish to the Company in writing, no later than
the Questionnaire Deadline, such information regarding such Holder and the
proposed distribution by such Holder of its Transfer Restricted Securities as
the Company may reasonably request for use in connection with the Registration
Statement or Prospectus or preliminary Prospectus included therein. Holders
that do not complete the questionnaire and deliver it to the Company shall not
be named as selling securityholders in the Prospectus or preliminary Prospectus
included in the Registration Statement and therefore shall not be permitted to
sell any Transfer Restricted Securities pursuant to the Registration Statement.
Each Holder who intends to be named as a selling Holder in the Registration
Statement shall promptly furnish to the Company in writing such other
information as the Company may from time to time reasonably request in writing.
(e) Upon the effectiveness of the Registration Statement, each Holder
shall notify the Company at least three Business Days prior to any intended
distribution of Transfer Restricted Securities
10
pursuant to the Registration Statement (a "Sale Notice"), which notice shall be
effective for five Business Days. Each Holder of this Security, by accepting
the same, agrees to hold any communication by the Company in response to a Sale
Notice in confidence.
5. Registration Expenses.
(a) All expenses incident to the Company's and the Guarantors' performance
of or compliance with this Agreement shall be borne by the Company regardless
of whether a Registration Statement becomes effective, including, without
limitation:
(i) all registration and filing fees and expenses (including filings
made by the Initial Purchasers or Holders with the NASD);
(ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of Prospectuses and
certificates for the Common Stock to be issued upon conversion of the
CODES), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel to the Company and the
Guarantors and, subject to Section 5(b) below, the Holders of Transfer
Restricted Securities;
(v) all application and filing fees in connection with listing (or
authorizing for quotation) the Common Stock on a national securities
exchange or automated quotation system pursuant to the requirements hereof;
and
(vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company shall bear its and the Guarantors' internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal, accounting or other duties), the expenses of any
annual audit and the fees and expenses of any Person, including special
experts, retained by the Company.
(b) In connection with the Registration Statement required by this
Agreement, the Company shall reimburse the Initial Purchasers and the Holders
of Transfer Restricted Securities being registered pursuant to the Registration
Statement, as applicable, for the reasonable fees and disbursements not to
exceed the amount of $50,000 of not more than one counsel, which shall be
Xxxxxx & Xxxxxxx, or such other counsel as may be chosen by a Majority of
Holders for whose benefit the Registration Statement is being prepared.
6. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Holder, such
Holder's officers and employees and each person, if any, who controls such
Holder within the meaning of the Securities Act (each, an "Indemnified
Holder"), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to resales of the Transfer
Restricted Securities), to which such Indemnified Holder may become subject,
insofar as any such loss, claim, damage, liability or action arises out of, or
is based upon:
(i) any untrue statement or alleged untrue statement of a material
fact contained in (A) the Registration Statement or Prospectus or any
amendment or supplement thereto or (B) any blue sky application or other
document or any amendment or supplement thereto prepared or executed by the
Company (or based upon written information furnished by or on behalf of the
Company expressly for use in such blue sky application or other document or
amendment on supplement) filed in any jurisdiction specifically for the
purpose of qualifying any or all of the Transfer Restricted Securities
under the securities law of any state or other jurisdiction (such
application or document being hereinafter called a "Blue Sky Application");
or
11
(ii) the omission or alleged omission to state therein any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company and the Guarantors shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement or
Prospectus or amendment or supplement thereto or Blue Sky Application in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Holder (or its related Indemnified Holder)
specifically for use therein or out of the failure by the Indemnified Holder to
furnish to any purchaser of its Restricted Transfer Security of the Prospectus
and any supplement or amendment thereto in the form provided to such
Indemnified Holder by the Company. The foregoing indemnity agreement is in
addition to any liability which the Company and the Guarantors may otherwise
have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the Company and the Guarantors, their respective officers and
employees, their respective directors and each person, if any, who controls the
Company or the Guarantors within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action
in respect thereof, to which the Company, the Guarantors or any such director,
officer, employee or controlling person may become subject, insofar as any such
loss, claim, damage or liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or Prospectus or any amendment
or supplement thereto or any Blue Sky Application; or
(ii) the omission or the alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading,
but in each case only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of such Holder (or its related Indemnified Holder) specifically for use
therein, and shall reimburse the Company, the Guarantors and any such
directors, officer, employee or controlling person promptly upon demand for any
legal or other expenses reasonably incurred by the Company, the Guarantors or
any such director, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Holder may
otherwise have to the Company, the Guarantors or any of their respective
directors, officers, employees or controlling persons and any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of any claim or the commencement of any action, the indemnified party
shall, 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
claim or the commencement of that action; provided, however, that the failure
to notify the indemnifying party shall not relieve it from any liability which
it may have under this Section 6 except to the extent it has been materially
prejudiced by such failure; and provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 6. If any such
claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified
12
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation;
provided, however, that a Majority of Holders shall have the right to employ a
single counsel to represent jointly a Majority of Holders and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by a
Majority of Holders against the Company, the Guarantors or any of their
respective directors, officers, employees or controlling persons under this
Section 7; and provided, further, that if a Majority of Holders shall have
reasonably concluded that there may be one or more legal defenses available to
them and their respective officers, employees and controlling persons that are
different from or additional to those available to the Company, the Guarantors
and any of their respective directors, officers, employees and controlling
persons, the fees and expenses of a single separate counsel shall be paid by
the Company and the Guarantors. No indemnifying party shall:
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld) 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 seeking indemnification
hereunder from all liability arising out of such claim, action, suit or
proceeding, or
(ii) be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld), but
if settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 shall for any
reason be unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability
(or action in respect thereof) referred to therein, each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors from the offering and
sale of the Transfer Restricted Securities on the one hand and a Holder
with respect to the sale by such Holder of the Transfer Restricted
Securities on the other, or
(ii) if the allocation provided by clause (6)(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause 6(d)(i) but also the relative
fault of the Company on the one hand and the Holder on the other in
connection with the statements or omissions or alleged statements or
alleged omissions that resulted in such loss, claim, damage or liability
(or action in respect thereof), as well as any other relevant equitable
considerations.
The relative benefits received by the Company and the Guarantors on the one
hand and a Holder on the other with respect to such offering and such sale
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the CODES purchased under the Purchase Agreement (before deducting
expenses) received by the Company and the Guarantors as set forth in the table
on Schedule 1 hereto, on the one hand, bear to the total proceeds received by
such Holder with respect to its sale of Transfer Restricted Securities on the
other. The relative fault of the parties shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Guarantors on the one hand or the Holders on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
13
omission. The Company, the Guarantors and each Holder agree that it would not
be just and equitable if the amount of contribution pursuant to this Section
6(d) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to in the first sentence of this paragraph (d). The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 6
shall be deemed to include, for purposes of this Section 6, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 6, no Holder shall be required
to contribute any amount in excess of the amount by which the total price at
which the Transfer Restricted Securities purchased by it were resold exceeds
the amount of any damages which such Holder has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Holders' obligations to contribute as provided in this Section 6(d) are several
and not joint.
7. Rule 144A. In the event the Company is not subject to Section 13 or
15(d) of the Exchange Act, the Company and each of the Guarantors hereby agrees
with each Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A.
8. Participation in Underwritten Registrations. No Holder may participate
in any Underwritten Registration hereunder unless such Holder:
(i) agrees to sell such Holder's Transfer Restricted Securities on the
basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.
9. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Registration Statement who desire to do so may sell
such Transfer Restricted Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by a Majority of
Holders whose Transfer Restricted Securities are included in such offering;
provided, however, that such investment bankers and managers must be reasonably
satisfactory to the Company.
10. Miscellaneous.
(a) Remedies. The Company and the Guarantors acknowledge and agree that
any failure by the Company or the Guarantors to comply with its obligations
under Section 2 hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company's
obligations under Section 2 hereof. The Company and the Guarantors further
agree to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(b) Adjustments Affecting Transfer Restricted Securities. The Company and
the Guarantors shall not, directly or indirectly, take any action with respect
to the Transfer Restricted Securities as a class that would adversely affect
the ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to this
Agreement.
14
(c) No Inconsistent Agreements. The Company and the Guarantors will not,
on or after the date of this Agreement, enter into any agreement with respect
to its securities that interferes with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. In addition,
the Company and the Guarantors shall not grant to any of its security holders
(other than the holders of Transfer Restricted Securities in such capacity) the
right to include any of its securities in the Registration Statement provided
for in this Agreement other than the Transfer Restricted Securities. Except for
the obligation described in the Purchase Agreement to the sellers of the ILEX
Systems, Inc. business, the Company and the Guarantors have not previously
entered into any agreement (which has not expired or been terminated) granting
any registration rights with respect to its securities to any Person which
rights conflict with the provisions hereof.
(d) Amendments and Waivers. This Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given, unless the Company has obtained the written consent of
a Majority of Holders.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
registrar under the Indenture or the transfer agent of the Common Stock, as
the case may be; and
(ii) if to the Company or the Guarantors:
L-3 Communications Holdings, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxxxx Xxxxxxx
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx, Xx.
All such notices and communications shall be deemed to have been duly
given at: the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
(i) this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Transfer Restricted Securities from such Holder and (ii)
nothing contained herein shall be deemed to permit any assignment, transfer or
other disposition of Transfer Restricted Securities in violation of the terms
of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Transfer Restricted Securities, in any manner, whether by
operation of law or otherwise, such Transfer Restricted Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Transfer Restricted Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
15
(h) Securities Held by the Company or its' Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Company or its Affiliates shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
(k) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company and the
Guarantors with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
L-3 COMMUNICATIONS HOLDINGS, INC.,
as the Company
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Senior Vice President, Secretary
and General Counsel
L-3 COMMUNICATIONS CORPORATION,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Senior Vice President, Secretary
and General Counsel
HYGIENETICS ENVIRONMENTAL SERVICES, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
16
L-3 COMMUNICATIONS AYDIN CORPORATION,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
MPRI, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
L-3 COMMUNICATIONS SPD TECHNOLOGIES, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
SPD HOLDINGS, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
SPD ELECTRICAL SYSTEMS, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
SPD SWITCHGEAR, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
PAC ORD, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXXX, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
17
POWER PARAGON, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
L-3 COMMUNICATIONS ESSCO, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
SOUTHERN CALIFORNIA MICROWAVE, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
L-3 COMMUNICATIONS STORM CONTROL SYSTEMS,
INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
L-3 COMMUNICATIONS DBS MICROWAVE, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
MICRODYNE CORPORATION,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
ELECTRODYNAMICS, INC.,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
INTERSTATE ELECTRONICS CORPORATION,
as a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxx X. Brand
--------------------------------------
NAME: Xxxxx X. Brand
TITLE: Managing Director
19
SCHEDULE 1
NET PROCEEDS
PER NOTE TOTAL
---------- ---------------
Offering Price ................................................... 100% $350,000,000
Discounts and Commissions ........................................ 2.75% $ 9,625,000
Net Proceeds to the Company (before deducting expenses) .......... 97.25% $340,375,000
EXHIBIT A
L-3 COMMUNICATIONS HOLDINGS, INC.
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITYHOLDER ELECTION AND QUESTIONNAIRE
--------------------------------------------------------------------------------
NOTICE
L-3 Communications Holdings, Inc. (the "Company") has filed, or intends to
file, with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 or such other Form as may be available (the
"Registration Statement"), for the registration and resale under Rule 415 of
the Securities Act of 1933, as amended (the "Securities Act"), of the Company's
4.00% Senior Subordinated Convertible Contingent Debt Securities (CODES) due
2011 (CUSIP No. 502424 AC 8) ("CODES"), and common stock, par value $0.01 per
share, issuable upon conversion thereof (the "Shares" and together with the
CODES and the related Guarantees, the "Transfer Restricted Securities") in
accordance with the terms of the Registration Rights Agreement, dated as of
October 24, 2001 (the "Registration Rights Agreement") between the Company and
Xxxxxx Brothers Inc., Bear, Xxxxxxx & Co. Inc. and Credit Suisse First Boston
Corporation. A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth below. All capitalized terms not
otherwise defined herein have the meaning ascribed thereto in the Registration
Rights Agreement.
In order to sell or otherwise dispose of any Transfer Restricted
Securities pursuant to the Registration Statement, a beneficial owner of
Transfer Restricted Securities generally will be required to be named as a
selling securityholder in the related Prospectus, deliver a Prospectus to
purchasers of Transfer Restricted Securities, be subject to certain civil
liability provisions of the Securities Act and be bound by those provisions of
the Registration Rights Agreement applicable to such beneficial owner
(including certain indemnification rights and obligations, as described below).
In order to be included in the Registration Statement, this Election and
Questionnaire must be completed, executed and delivered to the Company at the
address set forth herein for receipt PRIOR TO OR ON 20 BUSINESS DAYS FROM
RECEIPT HEREOF (THE "ELECTION AND QUESTIONNAIRE DEADLINE"). BENEFICIAL OWNERS
THAT DO NOT COMPLETE THIS NOTICE AND QUESTIONNAIRE PRIOR TO THE ELECTION AND
QUESTIONNAIRE DEADLINE AND DELIVER IT TO THE COMPANY AS PROVIDED BELOW WILL NOT
BE NAMED AS SELLING SECURITYHOLDERS IN THE REGISTRATION STATEMENT AND RELATED
PROSPECTUS AND THEREFORE WILL NOT BE PERMITTED TO SELL ANY TRANSFER RESTRICTED
SECURITIES PURSUANT TO THE REGISTRATION STATEMENT.
Certain legal consequences arise from being named as a selling
securityholder in the Registration Statement and the related Prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities
are advised to consult their own securities law counsel regarding the
consequences of being named or not being named as a selling securityholder in
the Registration Statement and the related Prospectus.
ELECTION
The undersigned Holder (the "Selling Securityholder") of Transfer
Restricted Securities hereby elects to include in the Registration Statement
the Transfer Restricted Securities beneficially owned by it and listed below in
Item 3 (unless otherwise specified under Item 3) pursuant to the Registration
Statement. The undersigned, by signing and returning this Election and
Questionnaire, understands that it will be bound by the terms and conditions of
this Election and Questionnaire and the Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the Selling Securityholder
has agreed to indemnify and hold harmless the Company, the Company's directors,
the Company's officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of
A-1
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against certain losses arising in connection with statements concerning the
Selling Securityholder made in the Registration Statement or the related
Prospectus in reliance upon the information provided in this Election and
Questionnaire.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
1. (a) Full legal name of Selling Securityholder:
(b) Full legal name of registered holder (if not the same as (a) above)
through which Transfer Restricted Securities listed in (3) below are
held:
(c) Full legal name of DTC participant (if applicable and if not the same
as (b) above) through which Transfer Restricted Securities listed in
(3) are held:
2. Address for notices to Selling Securityholders:
Telephone:
Fax:
Contact Person:
3. Beneficial ownership of Transfer Restricted Securities:
(a) Type of Transfer Restricted Securities beneficially owned, and
principal amount of CODES or number of shares of Common Stock, as the
case may be, beneficially owned:
(b) CUSIP No(s). of such Transfer Restricted Securities beneficially owned:
4. Beneficial ownership of the Company's securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other than
the Transfer Restricted Securities listed above in Item (3) ("Other
Securities").
(a) Type and amount of Other Securities beneficially owned by the Selling
Securityholder:
(b) CUSIP No(s). of such Other Securities beneficially owned:
5. Relationship with the Company
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship
with the Company (or their predecessors or affiliates) during the past
three years.
State any exceptions here:
6. Plan of Distribution
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Transfer Restricted Securities listed
above in Item (3) pursuant to the Registration Statement only as follows
(if at all). Such Transfer Restricted Securities may be sold from time to
time directly by the undersigned or, alternatively, through underwriters,
broker-dealers or agents. If the Transfer Restricted Securities are sold
through underwriters or broker-dealers, the Selling Securityholder will be
responsible for underwriting discounts or commissions or agent's
commissions. Such Transfer Restricted Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of
sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve
crosses or block transactions):
A-2
(i) on any national securities exchange or quotation service on which the
Transfer Restricted Securities may be listed or quoted at the time of sale;
(ii) in the over-the-counter market;
(iii) in transactions otherwise than on such exchanges or services or in
the over-the-counter market; or
(iv) through the writing of options.
In connection with sales of the Transfer Restricted Securities or
otherwise, the undersigned may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Transfer
Restricted Securities and deliver Transfer Restricted Securities to close
out such short positions, or loan or pledge Transfer Restricted Securities
to broker-dealers that in turn may sell such securities.
State any exceptions here:
NOTE: IN NO EVENT WILL SUCH METHOD(S) OF DISTRIBUTION TAKE THE FORM OF AN
UNDERWRITTEN OFFERING OF THE TRANSFER RESTRICTED SECURITIES WITHOUT THE PRIOR
AGREEMENT OF THE COMPANY.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees it will comply, with the
provisions of the prospectus delivery and other provisions of the Securities
Act and the Exchange Act and the respective rules and regulations promulgated
thereunder, particularly Regulation M thereunder (or any successor rules or
regulations), in connection with any offering of Transfer Restricted Securities
pursuant to the Registration Statement.
If the Selling Securityholder transfers all or any portion of the Transfer
Restricted Securities listed in Item 3 above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Election and Questionnaire and the Registration Rights
Agreement.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
the inclusion of such information in the Registration Statement and the related
Prospectus. The undersigned understands that such information will be relied
upon by the Company in connection with the preparation or amendment of the
Registration Statement and the related Prospectus.
In accordance with the Selling Securityholder's obligation under the
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the Registration Statement, the Selling Securityholder
agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein that may occur subsequent to the date hereof at any
time while the Registration Statement remains effective. All notices hereunder
and pursuant to the Registration Rights Agreement shall be made in writing at
the address set forth below.
Once this Election and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Election and
Questionnaire and the representations and warranties contained herein shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives and assigns of the
Company and the Selling Securityholder with respect to the Transfer Restricted
Securities beneficially owned by such Selling Securityholder and listed in Item
3 above. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
A-3
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Election and Questionnaire to be executed and delivered either in person
or by its duly authorized agent.
Dated:
Beneficial Owner
By: -------------------------
Name:
Title:
Please return the completed and executed Election and Questionnaire for receipt
PRIOR TO OR ON THE 20TH BUSINESS DAY FROM RECEIPT HEREOF to L-3 Communications
Holdings, Inc. at:
L-3 Communications Holdings, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx, Esq. General Counsel and Vice
President
A-4
EXHIBIT 1 TO ANNEX A
NOTICE OF TRANSFER PURSUANT
TO REGISTRATION STATEMENT
L-3 Communications Holdings, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
EquiServe Trust Company, N.A.
Attn:
Tel. ( )
Fax ( )
Re: L-3 Communications Holdings, Inc.'s 4.00% Senior Subordinated
Convertible Contingent Debt Securities due 2011 ("CODES")
Dear Sirs:
Please be advised that has transferred $ aggregate principal
amount of the above-referenced CODES or shares of the Company's Common Stock
issued on conversion or repurchase of CODES, pursuant to the Registration
Statement on Form S-3 (File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above named beneficial owner of the CODES
or Common Stock is named as a selling securityholder in the Prospectus
dated , or in amendments or supplements thereto, and that the aggregate
principal amount of the CODES or number of shares of Common Stock transferred
are [all or a portion of] the CODES or Common Stock listed in such Prospectus,
as amended or supplemented, opposite such owner's name.
Very truly yours,
[name]
By: -------------------------
(Authorized signature)
Dated: ---------------------
A-5
