Exhibit 10.33
2 1/2% CONVERTIBLE SUBORDINATED NOTES DUE 2023
REGISTRATION RIGHTS AGREEMENT
Dated as of August 19, 2003
between
ALKERMES, INC.
as the Company,
and
U.S. BANCORP XXXXX XXXXXXX INC.
as Purchaser
This Registration Rights Agreement is made and entered into as of
August 19, 2003 between Alkermes, Inc., a Pennsylvania corporation (the
"Company") and U.S. Bancorp Xxxxx Xxxxxxx Inc. (the "Purchaser") who has
purchased or has the right to purchase up to $100,000,000 in aggregate principal
amount of 2 1/2% Convertible Subordinated Notes due 2023 (or up to $125,000,000
if the option set forth in Section 2(b) of the Purchase Agreement (as defined
below) is exercised in full by the Purchaser) of the Company pursuant to the
Purchase Agreement.
This Agreement is made pursuant to the Purchase Agreement, dated August
19, 2003 between the Company and the Purchaser (the "Purchase Agreement"). In
order to induce the Purchaser to enter into the Purchase Agreement, the Company
has agreed to provide the registration rights provided for in this Agreement to
the Purchaser and its respective direct and indirect transferees (i) for the
benefit of the Purchaser, (ii) for the benefit of the holders from time to time
of the Notes (as such term is defined in Section 1 hereof) (including the
Purchaser) and the holders from time to time of the Common Stock (as such term
is defined in Section 1 hereof) issuable or issued upon conversion of the Notes
and (iii) for the benefit of the securities constituting the Transfer Restricted
Securities (as such term is defined in Section 1 hereof). The execution of this
Agreement is a condition to the closing of the transactions contemplated by the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Act: As defined in the last paragraph of this Section 1.
Advice: As defined in Section 2(d) hereof.
Affiliate: An affiliate of any specified person shall mean any
other person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person. For the purposes of this
definition, "control," when used with respect to any person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise and
the terms "affiliated," "controlling" and "controlled" have meanings correlative
to the foregoing.
Agreement: This Registration Rights Agreement, as the same may
be amended, supplemented or modified from time to time in accordance with the
terms hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
Closing Date: August 22, 2003.
Common Stock: Common Stock, $.01 par value per share, of the
Company and any other shares of common stock as may constitute "Common Stock"
for purposes of the Indenture, in each case, as issuable or issued upon
conversion of the Notes.
Company: Alkermes, Inc., a Pennsylvania corporation, and any
successor corporation thereto.
Company Indemnified Person: As defined in Section 6(c) hereof.
controlling person: As defined in Section 6(a) hereof.
Damages Payment Date: Each of the semi-annual interest payment
dates provided in the Indenture.
Effectiveness Period: As defined in Section 2(a) hereof.
Effectiveness Target Date: The 150th day following the Closing
Date.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
Filing Date: The 60th day after the Closing Date.
Holder: Each owner of any Transfer Restricted Securities.
Indemnified Person: As defined in Section 6(a) hereof.
Indemnified Party: As defined in Section 6(c) hereof.
Indemnifying Party: The Company, on one hand or any Holder (or
predecessor Holder), on the other hand, as applicable in accordance with Section
6 hereof.
Indenture: The Indenture, dated as of the date hereof, between
the Company and the Trustee, pursuant to which the Notes are being issued, as
the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
Liquidated Damages: As defined in Section 3(a) hereof.
Notes: The $100,000,000 aggregate principal amount of 2-1/2%
Convertible Subordinated Notes due 2023 of the Company being issued pursuant to
the Indenture (or $125,000,000 if the option set forth in Section 2(b) of the
Purchase Agreement is exercised in full by the Purchaser).
Notice and Questionnaire: A written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Preliminary
Offering Circular of the Company dated August 18, 2003 and the Final Offering
Circular of the Company dated August 19, 2003 relating to the Notes.
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Proceeding: An action, claim, suit or proceeding (including,
without limitation, an investigation or partial proceeding, such as a
deposition), whether commenced or threatened.
Prospectus: The prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the resale of any of the Transfer Restricted Securities covered by such
Registration Statement, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and all materials incorporated
by reference or deemed to be incorporated by reference, if any, in such
prospectus.
Purchase Agreement: As defined in the second paragraph hereof.
Purchaser: As defined in the first paragraph hereof.
Record Holder: (i) with respect to any Damages Payment Date
relating to any Note as to which any such Liquidated Damages have accrued, the
registered Holder of such Note on the record date with respect to the interest
payment date under the Indenture on which such Damages Payment Date shall occur
and (ii) with respect to any Damages Payment Date relating to any shares of
Common Stock as to which any such Liquidated Damages have accrued, the
registered Holder of such shares 15 days prior to the next succeeding Damages
Payment Date.
Registration Default: As defined in Section 3(a) hereof.
Registration Statement: Any registration statement of the
Company filed with the SEC pursuant to the Securities Act that covers the resale
of any of the Transfer Restricted Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
Requisite Information: As defined in Section 2(c) hereof.
Restricted Notes: Notes required pursuant to the Indenture to
bear the legend set forth in Section 2.5(d) of the Indenture.
Rule 144: Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
Rule 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
Rule 424: Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
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SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
Shelf Registration Statement: As defined in Section 2(a)
hereof.
Special Counsel: The special counsel to the Holders.
TIA: The Trust Indenture Act of 1939, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Transfer Restricted Securities: The Restricted Notes and the
shares of Common Stock into which such Restricted Notes are converted or
convertible (including any shares of Common Stock issued or issuable thereon
upon any stock split, stock combination, stock dividend or the like) upon
original issuance thereof, and at all times subsequent thereto, and associated
related rights, if any, until, in the case of any such Restricted Note or shares
of Common Stock (and associated rights) (i) the date on which the resale thereof
has been effectively registered under the Securities Act and disposed of in
accordance with the Registration Statement relating thereto, (ii) the date on
which such security has been distributed to the public pursuant to Rule 144 or
is saleable pursuant to paragraph (k) of Rule 144 or (iii) the date on which
such security ceases to be outstanding, whichever date is earliest.
Trustee: The trustee under the Indenture.
underwritten registration or underwritten offering: A
registration in connection with which securities of the Company are sold to one
or more underwriters for reoffering to the public pursuant to an effective
Registration Statement.
References herein to the term "Holders of a majority in
aggregate principal amount of Transfer Restricted Securities" or words to a
similar effect shall mean, with respect to any request, notice, demand,
objection or other action by the Holders hereunder or pursuant hereto (each, an
"Act"), registered Holders of a number of shares of then-outstanding Common
Stock constituting Transfer Restricted Securities and an aggregate principal
amount of then-outstanding Notes constituting Transfer Restricted Securities,
such that the sum of such shares of Common Stock and the shares of Common Stock
issuable upon conversion of such Notes constitutes in excess of 50% of the sum
of all of the then-outstanding shares of Common Stock constituting Transfer
Restricted Securities and the number of shares of Common Stock issuable upon
conversion of then-outstanding Notes constituting Transfer Restricted
Securities. For purposes of the preceding sentence, Transfer Restricted
Securities owned, directly or indirectly, by the Company or its Affiliates shall
be deemed not to be outstanding.
2. Shelf Registration Statement.
(a) The Company agrees to file with the SEC as soon as
reasonably practicable after the Closing Date, but in no event later than the
Filing Date a Registration Statement for an
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offering to be made on a continuous basis pursuant to Rule 415, covering all of
the Transfer Restricted Securities or separate Registration Statements for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Notes constituting Transfer Restricted Securities and all of the Common
Stock constituting Transfer Restricted Securities, respectively (such
Registration Statement or Statements, collectively, the "Shelf Registration
Statement"). The Shelf Registration Statement shall be on Form S-3 under the
Securities Act, on Form S-1 under the Securities Act should the Company be
ineligible to use Form S-3 or on another appropriate form selected by the
Company permitting registration of such Transfer Restricted Securities for
resale by the Holders in the manner or manners reasonably designated by Holders
of a majority in aggregate principal amount of Transfer Restricted Securities
being sold (including, without limitation, up to two underwritten offerings).
The Company shall not permit any securities other than the Transfer Restricted
Securities to be included in the Shelf Registration Statement. The Company shall
use its reasonable best efforts to cause the Shelf Registration Statement to be
declared effective pursuant to the Securities Act as soon as reasonably
practicable following the filing thereof and to keep the Shelf Registration
Statement continuously effective under the Securities Act for two years after
the latest date of original issuance of any of the Notes (subject to extension
pursuant to Sections 2(d) hereof) (the "Effectiveness Period"), or such shorter
period ending when there cease to be any Transfer Restricted Securities
outstanding.
(b) Supplements and Amendments. The Company shall use its
reasonable best efforts to keep the Shelf Registration Statement continuously
effective by supplementing and amending the Shelf Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used for the Shelf Registration Statement, if required by the
Securities Act or if reasonably requested by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities or by any
underwriter of such Transfer Restricted Securities; provided, however, that the
Effectiveness Period shall be extended as provided in Section 2(d) hereof.
(c) Selling Securityholder Information. Each Holder of
Transfer Restricted Securities agrees that if such Holder wishes to sell
Transfer Restricted Securities pursuant to the Shelf Registration Statement and
related Prospectus, it will do so only in accordance with this Section 2. Each
Holder of Transfer Restricted Securities wishing to sell Transfer Restricted
Securities pursuant to the Shelf Registration Statement and related Prospectus
agrees to deliver a Notice and Questionnaire that includes such information
regarding the distribution of its Transfer Restricted Securities as is required
by law to be disclosed by the Holder in the Shelf Registration Statement (the
"Requisite Information") to the Company prior to any intended distribution of
Transfer Restricted Securities under the Shelf Registration Statement. From and
after the date the Shelf Registration Statement becomes effective, the Company
shall, as promptly as is practicable after the date a Notice and Questionnaire
is delivered, and in any event within five (5) Business Days after such date,
(i) if required by applicable law, file with the SEC a post-effective amendment
to the Shelf Registration Statement or prepare and, if required by applicable
law, file a supplement to the related Prospectus or a supplement or amendment to
any document incorporated therein by reference or file any other required
document so that the Holder delivering such Notice and Questionnaire is named as
a selling securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such Prospectus
to purchasers of the Transfer
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Restricted Securities in accordance with applicable law and, if the Company
shall file a post-effective amendment to the Shelf Registration Statement, use
its reasonable best efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as is practicable, but
in any event by the date that is 60 days after the date such post-effective
amendment is required by this clause to be filed; (ii) provide such Holder
copies of any documents filed pursuant to Section 2(c)(i); and (iii) notify such
Holder as promptly as practicable after the effectiveness under the Securities
Act of any post-effective amendment filed pursuant to Section 2(c)(i); provided,
that if such Notice and Questionnaire is delivered during a time that the use of
the Prospectus is suspended pursuant to Section 2(d), the Company shall so
inform the Holder delivering such Notice and Questionnaire and shall take the
actions set forth in clauses (i), (ii) and (iii) above upon such time the use of
the Prospectus may be resumed, provided, further, that if under applicable law
the Company has more than one option as to the type or manner of making any such
filing, it will make the required filing or filings in the manner or of a type
reasonably expected to result in the earliest availability of the Prospectus for
effecting resales of the Holder's Transfer Restricted Securities.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require, in the event that such reference to such
Holder by name or otherwise is not required by the Securities Act or any similar
Federal statute then in force, the deletion of the reference to such Holder in
such Registration Statement
(d) Certain Notices; Suspension of Sales. Each Holder
agrees by acquisition of such Transfer Restricted Securities that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 4(c)(ii), 4(c)(iii), 4(c)(v) or 4(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Transfer Restricted
Securities covered by the Registration Statement and Prospectus (other than in
transactions exempt from the registration requirements under the Securities Act)
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Sections 4(c)(i) and 4(k) hereof, or until it is
advised in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. If the Company shall give any such
notice, the Effectiveness Period shall be extended by the number of days during
such period from and including the date of the giving of such notice to and
including the date when each Holder shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Sections 4(c)(i) and 4(k)
hereof or (y) the Advice, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
(e) Material Events; Suspension of Sales. Notwithstanding
the provisions contained in this Section 2, in the event that, in the judgment
of the Company's Board of Directors, it is advisable to suspend use of the
Prospectus due to pending corporate developments, public filings with the SEC or
similar events, the Company shall promptly deliver a written certificate to each
registered Holder, the Special Counsel and the managing underwriters, if any, to
the effect that the use of the Prospectus is to be suspended until the Company
shall deliver a written notice that the use of the Prospectus may be resumed.
Thereafter, the use of the Prospectus shall be suspended, and the
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Company shall not be required to maintain the effectiveness of, or amend or
update the Shelf Registration Statement, or amend or supplement the Prospectus;
provided, however, that the Company shall only be permitted to suspend the use
of the Prospectus for a period not to exceed 30 days in any six-month period or
two periods not to exceed an aggregate of 60 days in any 12-month period. The
Company will use its best efforts to ensure that the use of the Prospectus may
be resumed as soon as, in the judgment of the Company's Board of Directors,
disclosure of the material relating to such pending development, filing or event
would not have a materially adverse effect on the Company. If the Company shall
give any such suspension notice pursuant to this Section 2(e), the Effectiveness
Period shall be extended by the number of days during such period from and
including the date of giving such notice to and including the date when each
Holder shall have received notice that use of the Prospectus may be resumed.
3. Liquidated Damages
(a) The Company and the Purchaser agree that the Holders
will suffer damages if the Company fails to fulfill its obligations pursuant to
Section 2 hereof and that it would not be possible to ascertain the extent of
such damages. Accordingly, the Company hereby agrees to pay liquidated damages
("Liquidated Damages") under the circumstances and to the extent set forth
below:
(i) to each Holder if the Shelf Registration
Statement has not been filed with the SEC on or prior to the
Filing Date; or
(ii) to each Holder if each Shelf Registration
Statement is not declared effective by the SEC on or prior to
the applicable Effectiveness Target Date;
(iii) to each Holder if the Shelf Registration
Statement ceases to be effective or usable at any time during
the Effectiveness Period (without being succeeded on the same
day immediately by a post-effective amendment or supplement to
the Shelf Registration Statement that cures such failure and
that is itself, in the case of post-effective amendment,
immediately declared effective) for a period of time which
shall exceed 90 days in the aggregate in any period of 365
consecutive days; or
(iv) to the particular Holder affected by the
Company's failure to perform its obligations set forth in
Section 2(c) within the time period required therein;
(any of the foregoing, a "Registration Default"); provided that the fact that a
Shelf Registration Statement is not usable by a particular Holder at any given
time solely as a result of the failure of such Holder to provide Requisite
Information with respect to it shall not be relevant for purposes of clause
(iii) above unless such Holder shall have provided such information to the
Company and the Company shall have failed to file an appropriate Prospectus
supplement or post-effective amendment to the Shelf Registration Statement. In
the event of any such Registration Default, the Company shall accrue Liquidated
Damages to each applicable Holder during the first 90-day period immediately in
an amount equal to $.05 per week per $1,000 principal amount of Notes held by
such Holder and, if applicable, on an equivalent basis per share (subject to
adjustment in the event of any
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stock split, stock combination, stock dividends and the like) of Common Stock
constituting Transfer Restricted Securities held by such Holder for each week or
portion thereof that the Registration Default continues. The weekly rate at
which such Liquidated Damages accrue shall increase by an additional $.05 per
$1,000 principal amount of Notes and, if applicable, an equivalent amount per
week per share (subject to adjustment as set forth above) of Common Stock
constituting Transfer Restricted Securities for each subsequent continuing
90-day period following the occurrence of such Registration Default until all
Registration Defaults have been cured; provided, however, that Liquidated
Damages shall not at any time exceed $.25 per week per $1,000 principal amount
of Notes or, as applicable, an equivalent amount per week per share (subject to
adjustment as set forth above) of Common Stock constituting Transfer Restricted
Securities. In no event shall the Company be required to pay Liquidated Damages
in excess of the applicable maximum weekly amount, regardless of whether one or
multiple Registration Defaults shall exist. Following the cure of all
Registration Defaults, the accrual of Liquidated Damages shall cease (without in
any way limiting the effect of any subsequent Registration Default). A
Registration Default under clause (i) above shall be cured on the date that the
applicable Shelf Registration Statement is filed with the SEC; a Registration
Default under clause (ii) above shall be cured on the date that the applicable
Shelf Registration Statement is declared effective by the SEC; a Registration
Default under clause (iii) above shall be cured on the date the applicable Shelf
Registration Statement is declared effective or otherwise usable; and a
Registration Default under clause (iv) above shall be cured on the date the
applicable prospectus supplement to the Shelf Registration Statement is filed or
the post-effective amendment with respect to such Shelf Registration Statement
is declared effective.
(b) The Company shall notify the Trustee within one
Business Day after each and every date on which a Registration Default occurs.
Liquidated Damages shall be paid by the Company to the Record Holders on each
Damages Payment Date in the same manner as interest is paid under the Indenture,
in the case of the Notes, and by mailing checks to their registered addresses in
the register of the Company for the Common Stock, in the case of shares of
Common Stock; provided, however, that any Liquidated Damages accrued with
respect to any Note or portion thereof called for redemption on a redemption
date, repurchased in connection with a Repurchase Event (as defined in the
Indenture) on a repurchase date, or converted into shares of Common Stock on a
conversion date prior to the Damages Payment Date, shall, in any such event, be
paid instead to the Holder who submitted such Note or portion thereof for
redemption, repurchase or conversion on the applicable redemption date,
repurchase date or conversion date, as the case may be, on such date (promptly
following the conversion date, in the case of conversion of a Note).
(c) All of the Company's obligations set forth in this
Section 3 which are unsatisfied to any extent with respect to any Transfer
Restricted Securities at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations with
respect to such security have been satisfied in full (notwithstanding the
earlier termination of this Agreement).
(d) Any payments due and payable pursuant to this Section
3 with respect to any Notes shall be subject to the provisions of Article IV of
the Indenture as if such payments were additional interest on the Notes.
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(e) The parties hereto agree that the Liquidated Damages
provided for in this Section 3 constitute a reasonable estimate of the damages
that may be incurred by holders of record of Transfer Restricted Securities by
reason of the failure of the Shelf Registration Statement to be filed or
declared effective or unavailable (absolutely or as a practical matter) for
effecting resales of Transfer Restricted Securities in accordance with the
provisions hereof. Notwithstanding the foregoing, the parties agree that the
sole contractual damages payable for a violation of the terms of this Agreement
with respect to which Liquidated Damages are expressly provided shall be such
Liquidated Damages. Nothing in this Section 3(e), however, shall preclude a
holder of Transfer Restricted Securities from pursuing or obtaining specific
performance or other equitable relief with respect to the Company's failure to
pay Liquidated Damages pursuant to this Agreement.
4. Registration Procedures. In connection with the Company's
registration obligations hereunder, the Company shall effect such registrations
on the appropriate form selected by the Company to permit the resale of Transfer
Restricted Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall as expeditiously as
reasonably possible:
(a) No fewer than five Business Days prior to the initial
filing of a Registration Statement or Prospectus and no fewer than two Business
Days prior to the filing of any amendment or supplement thereto, furnish to the
registered Holders (determined as of the most recent reasonably practicable date
which shall not be more than two Business Days prior to the date such document
is personally delivered, delivered to a next-day courier, deposited in the mail
or telecopied, as the case may be), Special Counsel and the managing
underwriters, if any, copies of all such documents proposed to be filed
(excluding, unless requested, those incorporated or deemed to be incorporated by
reference and then only to the Holder who so requested) and cause the officers
and directors of the Company, counsel to the Company and independent certified
public accountants to the Company to respond to such inquiries as shall be
necessary in connection with such Registration Statement, in the opinion of
Special Counsel and counsel to such underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company shall not
file any such Registration Statement or related Prospectus or any amendments or
supplements thereto to which the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities, Special Counsel, or the managing
underwriters, if any, shall reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments,
including post-effective amendments, to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the
applicable time period set forth in Section 2(a) hereof in case of the Shelf
Registration Statement and in case of any underwritten offering the period of
distribution of Transfer Restricted Securities covered by such Registration
Statement; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act with respect to the disposition of all securities
covered by such Registration Statement during such period in accordance with the
intended method or methods of disposition by the Holder set forth in such
Registration Statement as so amended or in such Prospectus as so supplemented
(including, without limitation, the filing of any Prospectus supplement pursuant
to Rule 424 in order to add or change any selling security holder information
(including any such supplements or amendments pursuant to Section 2(c)
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hereof, provided such Holder to which such change applies complies with the
Requisite Information requirements of Section 2(c) hereof));
(c) Notify the registered Holders (as of the most recent
reasonably practicable date which shall not be more than two Business Days prior
to the date such notice is personally delivered, delivered to a next-day
courier, deposited in the mail or telecopied, as the case may be), Special
Counsel and the managing underwriters, if any, promptly (and in the case of an
event specified by clause (i)(A) of this paragraph in no event fewer than two
Business Days prior to such filing), and (if requested by any such person),
confirm such notice in writing, (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to be filed, and, (B) with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request of the SEC or any other federal
or state governmental authority for amendments or supplements to such
Registration Statement or related Prospectus or for additional information
related thereto, (iii) of the issuance by the SEC, any state securities
commission, any other governmental agency or any court of any stop order, order
or injunction suspending or enjoining the use or the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
(iv) if at any time any of the representations and warranties of the Company
contained in any agreement (including any underwriting agreement) contemplated
by Section 4(m) hereof are not true and correct in all material respects during
the effectiveness of such agreement, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Transfer Restricted Securities for sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, and (vi) of the existence of any fact and the happening of any event
that makes any statement made in such Registration Statement or related
Prospectus untrue in any material respect, or that requires the making of any
changes in such Registration Statement or Prospectus so that in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and that, in the case of
the Prospectus, such Prospectus will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(d) Use its reasonable best efforts to avoid the issuance
of, or, if issued, obtain the withdrawal of any stop order or order enjoining or
suspending the use or effectiveness of a Registration Statement or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Transfer Restricted Securities for sale in any jurisdiction, at the
earliest practicable moment;
(e) If requested by the Special Counsel, the managing
underwriters, if any, or the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities being sold in connection with such
offering, (i) promptly include in a Prospectus supplement or post-effective
amendment such information as the Special Counsel, the managing underwriters, if
any, and such Holders agree should, in their reasonable judgment, be included
therein, and (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as reasonably practicable after the
Company has received notification of the matters to be included in such
Prospectus supplement or post-effective amendment; provided, however, that the
Company shall not
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be required to take any action pursuant to this Section 4(e) that would, in the
opinion of counsel for the Company, violate applicable law or which is not
reasonably required to comply with applicable securities laws;
(f) Furnish to each Holder who so requests, Special
Counsel and each managing underwriter, if any, without charge, at least one
conformed copy of each Registration Statement and each amendment thereto,
including financial statements (but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits,
unless requested in writing by such Holder, Special Counsel or managing
underwriter);
(g) Deliver to each Holder, the Special Counsel, and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of Prospectus) and each amendment or
supplement thereto as such persons may reasonably request; and, unless the
Company shall have given notice to such Holder pursuant to Section 4(c), the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Transfer Restricted
Securities and the underwriters, if any, in connection with the offering and
sale of the Transfer Restricted Securities covered by such Prospectus and any
amendment or supplement thereto, provided, however, that no Holder shall be
entitled to use the Prospectus unless and until such Holder shall have furnished
to the Company any and all Requisite Information pursuant to Section 2(c)
hereof;
(h) Use its reasonable best efforts to register or
qualify, or cooperate with the Holders of Transfer Restricted Securities to be
sold or tendered for, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of, such Transfer Restricted Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions or such
other applicable governmental agencies or authorities within the United States
as any Holder or underwriter reasonably requests in writing, keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things necessary legally to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the applicable
Registration Statement; provided, however, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it is not
then so qualified, take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or subject the
Company to any tax in any such jurisdiction where it is not then so subject;
(i) In connection with any sale or transfer of Transfer
Restricted Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the Holders and the managing
underwriters, if any, to (A) facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends, for the Notes shall bear a
CUSIP number different from the CUSIP number for the Transfer Restricted
Securities and for any Transfer Restricted Securities shall be in a form
eligible for deposit with The Depository Trust Company and (B) enable such
Transfer Restricted Securities to be in such denominations and registered in
such names as the managing underwriters, if
- 11 -
any, or Holders may reasonably request at least two Business Days prior to any
sale of Transfer Restricted Securities;
(j) Use its best efforts to cause the offering of the
Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
within the United States, except as may be reasonably required as a consequence
of the nature of a Holder's business, in which case the Company will cooperate
in all reasonable respects with the filing of such Registration Statement and
the granting of such approvals as may be reasonably necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Transfer Restricted Securities; provided, however, that the
Company shall not be required to register the Transfer Restricted Securities in
any jurisdiction that would require the Company to qualify to do business in any
jurisdiction where it is not then so qualified, subject it to general service of
process in any such jurisdiction where it is not then so subject or subject the
Company to any tax in any such jurisdiction where it is not then so subject or
to;
(k) Upon the occurrence of any event contemplated by
Section 4(c)(vi) hereof, as promptly as reasonably practicable, prepare a
supplement or amendment, including, if appropriate, a post-effective amendment,
to each Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(l) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, to provide a CUSIP
number for the Transfer Restricted Securities to be sold pursuant to the
Registration Statement;
(m) Enter into such agreements (including an underwriting
agreement in form, scope and substance as are customary in underwritten
offerings) reasonably satisfactory to the Company and take all such other
reasonable actions in connection therewith (including those reasonably requested
by the managing underwriters, if any, or the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities being sold) in order to
expedite or facilitate the sale of such Transfer Restricted Securities;
provided, however, that the Company is required to facilitate no more than two
underwritten offerings. In such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the Holders of
such Transfer Restricted Securities and the underwriters, if any, with respect
to the business of the Company and its subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of them), and the
Registration Statement, Prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
offerings and reasonably acceptable to the Company, and confirm the same if and
when requested; (ii) seek to obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably
- 12 -
satisfactory to the managing underwriters, if any, and Special Counsel to the
Holders of the Transfer Restricted Securities being sold) addressed to each
selling Holder of Transfer Restricted Securities and each of the underwriters,
if any, covering the matters customarily covered in opinions requested in
underwritten offerings (including any such matters as may be reasonably
requested by such Special Counsel and underwriters); (iii) use all reasonable
efforts to obtain customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data is, or is required to be, included in the Registration
Statement), addressed (where reasonably possible) to each selling Holder of
Transfer Restricted Securities and each of the underwriters, if any, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten offerings;
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the selling
Holders of Transfer Restricted Securities and the underwriters, if any, than
those set forth in Section 6 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities covered by such Registration Statement, the
managing underwriters and to the Company); and (v) deliver such documents and
certificates as may be reasonably requested by the Holders of majority in
aggregate principal amount of the Transfer Restricted Securities being sold,
their Special Counsel or the managing underwriters, if any, to evidence the
continued validity of the representations and warranties made pursuant to clause
(i) of this Section 4(m) and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company;
(n) Make available for inspection by a representative of
the Holders of Transfer Restricted Securities being sold, any underwriter
participating in any such disposition of Transfer Restricted Securities, if any,
and any attorney, consultant or accountant retained by such selling Holders or
underwriter, at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries as they may reasonably request,
and cause the officers, directors, agents and employees of the Company and its
subsidiaries to supply all information in each case reasonably requested by any
such representative, underwriter, attorney, consultant or accountant in
connection with such Registration Statement, provided, however, that such
persons shall first agree in writing with the Company that any information that
is reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery or inspection (as the case may be) of such
information shall be kept confidential by such persons, unless (i) disclosure of
such information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to Federal securities laws in connection with the filing of any Registration
Statement or the use of any Prospectus), (iii) such information becomes
generally available to the public other than as a result of a disclosure or
failure to safeguard by any such person or (iv) such information becomes
available to any such person from a source other than the Company and such
source is not bound by a confidentiality agreement;
(o) Use its reasonable best efforts to cause the
Indenture to be qualified under the TIA not later than the effective date of the
first Registration Statement relating to the Transfer
- 13 -
Restricted Securities; and in connection therewith, cooperate with the Trustee
and the Holders of Notes constituting Transfer Restricted Securities to effect
such changes to the Indenture, if any, as may be required for such Indenture to
be so qualified in accordance with the terms of the TIA; and execute, and use
its best efforts to cause the Trustee to execute, all customary documents as may
be required to effect such changes, and all other forms and documents (including
Form T-1) required to be filed with the SEC to enable the Indenture to be so
qualified under the TIA in a timely manner;
(p) Comply with applicable rules and regulations of the
SEC and make generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act or Rule 158 of
the Securities Act (or any similar rule promulgated under the Securities Act),
no later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Transfer Restricted Securities are sold
to underwriters in a firm commitment or best efforts underwritten offering and
(ii) if not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter after the effective date of a Registration
Statement, which statement shall cover said period, consistent with the
requirements of Rule 158 of the Securities Act; and
(q) (i) list all shares of Common Stock covered by such
Registration Statement on any securities exchange on which the Common Stock is
then listed or (ii) if required by the applicable rules, authorize for quotation
on the National Association of Securities Dealers Automated Quotation System
("Nasdaq") or the National Market of Nasdaq all Common Stock covered by such
Registration Statement if the Common Stock is then so authorized for quotation.
5. Registration Expenses
(a) All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne by it whether or
not any Registration Statement is filed or becomes effective and whether or not
any securities are offered or sold pursuant to any Registration Statement. The
fees and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filings fees (including, without
limitation, fees and expenses (A) with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and (B) in compliance
with securities or Blue Sky laws (including, without limitation and in addition
to that provided for in (b) below, reasonable fees and disbursements of counsel
for the underwriters or the Special Counsel in connection with Blue Sky
qualifications of the Transfer Restricted Securities and determination of the
eligibility of the Transfer Restricted Securities for investment under the laws
of such jurisdictions as the managing underwriters, if any, or Holders of a
majority in aggregate principal amount of Transfer Restricted Securities, may
designate)), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Transfer Restricted Securities in a form eligible for
deposit with The Depository Trust Company and of printing Prospectuses if the
printing of Prospectuses is required by the managing underwriters, if any, or by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included), (iii) messenger, telephone and delivery
expenses of the Company, (iv) reasonable fees and disbursements of counsel for
the Company and the Special Counsel (plus any local counsel deemed appropriate
by the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities) in accordance with the provisions of Section 5(b) hereof,
(v) fees and disbursements of all
- 14 -
independent certified public accountants referred to in Section 4(m)(iii)
(including, without limitation, the expenses of any special audit and "comfort"
letters required by or incident to such performance), (vi) Securities Act
liability insurance, if the Company so desires such insurance, and (vii) fees
and expenses of all other persons retained by the Company. In addition, the
Company shall pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of an annual audit and the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange or the Nasdaq National Market. Notwithstanding anything
in this Agreement to the contrary, each Holder shall pay all underwriting
discounts and brokerage commissions with respect to any Transfer Restricted
Securities sold by it.
(b) In connection with any registration hereunder, the
Company shall reimburse the Holders of the Transfer Restricted Securities being
registered or tendered for in such registration for the reasonable fees and
disbursements of not more than one firm of attorneys representing the selling
Holders (in addition to any local counsel), which firm shall initially be chosen
by the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities. Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP shall be Special Counsel
for all purposes hereof, but which may, with the written consent of the
Purchaser (which shall not be unreasonably withheld), be another nationally
recognized law firm experienced in securities law matters designated by the
Company unless and until another Special Counsel shall have been selected by a
majority in aggregate principal amount of the Transfer Restricted Securities and
notice hereof shall have been given to the Company.
6. Indemnification
(a) The Company agrees to indemnify and hold harmless the
Purchaser, each Holder, each person, if any, who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) any of the
foregoing (collectively, "controlling persons" and individually, a "controlling
person"), and the respective officers, directors, partners, employees,
representatives and agents of the Purchaser, the Holders (including predecessor
Holders), or any controlling person (any such person referred to in this clause
may hereinafter be referred to as an "Indemnified Person"), from and against:
(i) any and all losses, claims, damages,
liabilities, expenses and judgments caused by any untrue
statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus or in
any amendment or supplement thereto or in any preliminary
Prospectus, including all documents incorporated therein by
reference, or caused by 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 case of any
Prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading,
(ii) from and against any and all losses, claims,
damages, liabilities, expenses and judgments, as incurred, to
the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon
- 15 -
any such untrue statement or omission, or any such alleged
untrue statement or omission, provided that, subject to
Section 6(e) below, any such settlement is effected with the
prior written consent of the Company, and
(iii) from and against any and all expenses
whatsoever, as incurred, including the fees and disbursements
of counsel, reasonably incurred in investigation, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission or any such alleged untrue statement or
omission, to the extent that any such expense is not paid
under (i) or (ii) above, subject to subsection (b),
except insofar as such losses, claims, damages, liabilities, expenses or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon written information relating to any Indemnified
Person furnished to the Company by or on behalf of such Indemnified Person
expressly for use therein; provided, however, that the foregoing indemnity with
respect to any preliminary Prospectus shall not inure to the benefit of any
Indemnified Person from whom the person asserting such losses, claims, damages,
liabilities, expenses and judgments purchased securities if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary Prospectus is eliminated or remedied in the Prospectus and a copy of
the Prospectus shall not have been furnished to such person in a timely manner
due to the wrongful action or wrongful inaction of such Indemnified Person,
whether as a result of negligence or otherwise.
(b) In case any action shall be brought against any
Indemnified Person, based upon any Registration Statement or any such Prospectus
or any amendment or supplement thereto and with respect to which indemnity may
be sought against the Company, such Indemnified Person shall promptly notify the
Company in writing and the Company shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Person and
payment of all fees and expenses. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person, unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel or (iii) such Indemnified
Person or Persons shall have been advised by counsel that there may be a
conflict between the positions of the indemnifying party or parties and of the
indemnified party or parties in conducting the defense of such action or
proceeding or that there may be legal defenses available to such Indemnified
Person or Persons different from or in addition to those available to the
indemnifying party or parties (in which case the Company shall not have the
right to assume the defense of such action on behalf of such Indemnified
Person), it being understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all such Indemnified
Persons, which firm shall be designated in writing by such Indemnified Persons,
and that all such fees and expenses shall be reimbursed as they are incurred.
The Company shall not be liable for any
- 16 -
settlement of any such action effected without its written consent but if
settled with the written consent of the Company, the Company agrees to indemnify
and hold harmless, in accordance with this Section 6, any Indemnified Person
from and against any loss or liability by reason of such settlement. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
on claims that are the subject matter of such proceeding.
(c) In connection with any Registration Statement
pursuant to which any Holder (or predecessor Holder) sold or offered for resale
Transfer Restricted Securities, such Holder (or predecessor Holder) agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, its officers, employees, representatives, agents and any person
controlling the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act (any such person referred to as a "Company
Indemnified Person" and collectively with the Indemnified Persons, any such
person referred to as an "Indemnified Party"), to the same extent as the
foregoing indemnity from the Company to each Indemnified Person but only with
reference to written information relating to such Indemnified Person furnished
by or on behalf of such Indemnified Person expressly for use in such
Registration Statement. In case any action shall be brought against any Company
Indemnified Person, based on such Registration Statement and in respect of which
indemnity may be sought against any Indemnifying Party, the Indemnifying Party
shall have the rights and duties given to the Company (except that if the
Company shall have assumed the defense thereof, such Indemnifying Party shall
not be required to do so, but may employ separate counsel therein and
participate in defense thereof but the fees and expenses of such counsel shall
be at the expense of such Indemnifying Party), and the Company Indemnified
Person shall have the rights and duties given to the Indemnified Person by
Section 6(b) hereof.
(d) If the indemnification provided for in this Section 6
is unavailable to an Indemnified Party in respect of any losses, claims,
damages, liabilities, expenses or judgments referred to therein, then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities, expenses and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and each Indemnified Person on the other hand pursuant
to the Purchase Agreement or from the offering for resale of the Transfer
Restricted Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and each such Indemnified Person in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities, expenses or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company and each such Indemnified
Person shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or such Indemnified
Person and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
- 17 -
The Company, the Holders and the Purchaser agree that it would
not be just and equitable if contribution pursuant to this Section 6(d) were
determined by pro rata allocation (even if the Indemnified Person were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages, liabilities, expenses or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Indemnified Person shall be required to contribute any amount in
excess of the amount by which the total net profit received by it in connection
with the sale of the Transfer Restricted Securities pursuant to this Agreement
exceeds the amount of any damages which such Indemnified Person has otherwise
been required to pay by reason of such 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 Indemnified Persons' obligations to contribute pursuant
to this Section 6(d) are several in proportion to the respective amount of
Transfer Restricted Securities included in and sold pursuant to any such
Registration Statement by each Indemnified Person and not joint.
(e) No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement, compromise or
consent to the entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any Indemnified Party is or could have been a
party and indemnity was or could have been sought hereunder by such Indemnified
Party, unless such settlement, compromise or consent includes (i) an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such action, suit or proceeding and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any Indemnified Party.
(f) Any losses, claims, damages, liabilities or expenses
for which an Indemnified Party is entitled to indemnification or contribution
under this Section 6 shall be paid by the Indemnifying Party to the Indemnified
Party as such losses, claims, damages, liabilities or expenses are incurred, but
in all cases, no later than thirty (30) days of invoice to the Indemnifying
Party, provided, however, that the Indemnified Party may not issue invoices to
the Indemnifying Party pursuant to this Section 6 more than once per month.
7. Rules 144 and 144A
The Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act in a timely manner and, if at any
time it is not required to file such reports but in the past had been required
to or did file such reports, it will, upon the request of any Holder, make
available other information as required by, and so long as necessary to permit
sales of, its Transfer Restricted Securities pursuant to Rule 144 and Rule 144A.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
- 18 -
8. Underwritten Registrations
If any of the Transfer Restricted Securities covered by the
Shelf Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be investment bankers of recognized national
standing selected by the Holders of a majority in aggregate principal amount of
such the Notes (or the proportional amount of Common Stock held as Transfer
Restricted Securities) included in such offering, subject to the consent of the
Company (which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities underwriting agreements, lock-up agreements and other
documents reasonably required under the terms of such underwriting arrangements.
9. Miscellaneous
(a) Remedies. In the event of a breach by the Company or
by a Holder of any of their respective obligations under this Agreement, each
Holder or the Company, in addition to being entitled to exercise all rights
granted by law, including, without limitation, recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
and each Holder agree that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agree that, in the event of any action for
specific performance in respect of such breach, they shall waive the defense
that a remedy at law would be adequate. This Section 9(a) shall not apply to
Section 3.
(b) No Inconsistent Agreements. The Company shall not
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof. The Company is not currently a party to any
agreement granting any registration rights with respect to any of its securities
to any person which conflicts with the Company's obligations hereunder or gives
any other party the right to include any securities in any Registration
Statement filed pursuant hereto, except for such rights and conflicts as have
been irrevocably waived. Without limiting the generality of the foregoing until
the date at which the Securities (as defined in the Purchase Agreement) cease to
be Transfer Restricted Securities, without the written consent of the Holders of
a majority in aggregate principal amount of the Transfer Restricted Securities,
the Company shall not grant to any person the right to request it to register
any of its securities under the Securities Act unless the rights so granted are
subject in all respect to the prior rights of the Holders set forth herein, and
are not otherwise in conflict or inconsistent with the provisions of this
Agreement.
(c) No Adverse Action Affecting the Transfer Restricted
Securities. The Company will not take any action with respect to the Transfer
Restricted Securities which would
- 19 -
adversely affect the ability of any of the Holders to include such Transfer
Restricted Securities in a registration undertaken pursuant to this Agreement.
(d) No Piggyback on Registrations. After the date hereof,
the Company shall not grant to any of its security holders (other than the
Holders in such capacity) the right to include any of its securities in the
Shelf Registration Statement.
(e) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof, may not be given, without the written consent of the Holders
of a majority in aggregate principal amount of the Transfer Restricted
Securities; provided, however, that, for the purposes of this Agreement,
Transfer Restricted Securities that are owned, directly or indirectly, by either
the Company or an Affiliate of the Company are not deemed outstanding.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Transfer Restricted Securities are being sold pursuant to an
underwritten offering and that does not directly or indirectly affect the rights
of other Holders may be given by Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities being sold by such Holders pursuant
to such an underwritten offering; provided, however, that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence.
(f) Notices. All notices and other communications
provided for herein shall be made in writing by hand-delivery, next day air
courier, certified first-class mail, return receipt requested or telecopy;
provided a copy of any such telecopy is immediately followed up by next day
courier:
(i) if to a Holder, to the address of such
Holder as it appears in the Note or Common
Stock register of the Company, as
applicable;
(ii) if to the Company, to:
Alkermes, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx, Xx., Esq.
Telecopy No.: (000) 000-0000
(iii) if to the Special Counsel, to:
- 00 -
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
or such other Special Counsel at such other address and telecopy number as a
majority in aggregate principal amount of the Transfer Restricted Securities
shall have given notice to the Company as contemplated by Section 5(b) hereof.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given, when delivered by hand,
if personally delivered; one Business Day after being timely delivered to a
next-day air courier, five Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied; provided a copy of any such telecopy is
immediately followed up by next day courier.
(g) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of each
of the parties and shall inure to the benefit of each existing and future
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities, other than by operation of law
pursuant to a merger or consolidation to which the Company is a party. In the
event the Notes constituting Transfer Restricted Securities become convertible
into common stock of another person pursuant to Section 15.6 of the Indenture,
the Company shall cause such person to assume the Company's obligations
hereunder.
(h) Counterparts. This Agreement may be executed in any
number of counterparts by the parties hereto, 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 instrument.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(j) Severability. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms,
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provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(k) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
(l) Attorneys' Fees. In any action or proceeding brought
to enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover its reasonable attorneys' fees in addition to any
other available remedy.
[signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
ALKERMES, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
The foregoing Registration Rights
Agreement is hereby confirmed and
agreed to as of the date first
written above:
U.S. BANCORP XXXXX XXXXXXX INC.
By:___________________________________
Authorized Signatory
