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Exhibit 4.3
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF APRIL 10, 1997
BY AND AMONG
UROHEALTH SYSTEMS, INC.
AS THE COMPANY,
THE GUARANTORS NAMED HEREIN
AND
BEAR, XXXXXXX & CO. INC.
AS PURCHASER
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of April 10, 1997, among UROHEALTH Systems, Inc., a Delaware
corporation (the "Company"), the Guarantors as defined herein (the "Guarantors")
and Bear, Xxxxxxx & Co. Inc. (the "Purchaser").
This Agreement is made pursuant to the Purchase Agreement,
dated April 3, 1997, among the Company, the Guarantors named therein and the
Purchaser (the "Purchase Agreement"), which provides for the sale by the Company
and the Guarantors to the Purchaser of units consisting of $110,000,000
aggregate principal amount of 12-1/2% Senior Subordinated Notes due 2004
(together with the related Guarantees (as defined therein), the "Securities")
and warrants to purchase common stock. In order to induce the Purchaser to enter
into the Purchase Agreement, the Company and the Guarantors have agreed to
provide to the Purchaser and its direct and indirect transferees, among other
things, the registration rights for the Securities set forth in this Agreement.
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 (and, unless otherwise indicated, capitalized terms used
herein without definition shall have the meanings ascribed to them by the
Purchase Agreement):
Advice: See Section 5.
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Applicable Period: See Section 2.
Company: See the introductory paragraph of this Agreement.
Effectiveness Period: See Section 3.
Effectiveness Target Date: The 90th day following the Issue
Date.
Event Date: See Section 4.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2.
Exchange Registration Statement: See Section 2.
Exchange Securities: See Section 2.
Filing Date: The 30th day after the Issue Date.
Guarantors: The Guarantors (as defined in the Indenture).
Holder: Any holder of Transfer Restricted Securities.
Indenture: The Indenture, dated as of the date hereof, among
the Company, the Guarantors and The Bank of New York, as trustee, pursuant to
which the Securities are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Issue Date: The date of first issuance of
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the Notes under the Indenture.
Liquidated Damages: See Section 4.
Participating Broker-Dealer: See Section 2.
Person: An individual, trustee, corporation, partnership,
joint stock company, trust, limited liability company, unincorporated
association, union, business association, firm or other legal entity.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Exchange Securities and/or the Transfer Restricted Securities (as
applicable) covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Purchasers: See the introductory paragraph to this Agreement.
Registration Default: See Section 4.
Registration Statement: Any registration statement of the
Company and the Guarantors, including, but not limited to, the Exchange
Registration Statement, the Shelf Registration or that otherwise covers any of
the Transfer Restricted Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement,
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including post-effective amendments, all exhibits, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated pursuant to the Securities Act,
as currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A promulgated pursuant to the Securities
Act, as currently in effect, as such rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated pursuant to the Securities Act,
as currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities: See the introductory paragraphs to this Agreement.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2.
Shelf Registration: See Section 3.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: The Securities upon original
issuance thereof and at all times subsequent thereto, until in the case of any
such Securities (i) a Registration Statement covering such Securities has
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been declared effective by the SEC and such Securities have been disposed of in
accordance with such effective Registration Statement, (ii) such Securities are
sold in compliance with Rule 144 or (iii) such Securities cease to be
outstanding.
Trustee: The trustee under the Indenture and, where
applicable, the trustee under any indenture governing the Exchange Securities.
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
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2. Exchange Offer
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(a) The Company and the Guarantors agree to file with the SEC
as soon as practicable after the Issue Date, but in no event later than the
Filing Date, an unconditional, irrevocable offer to exchange (the "Exchange
Offer") any and all of the Transfer Restricted Securities for a like aggregate
principal amount of debt securities of the Company and the Guarantors which are
substantially identical to the Securities, except that the identity of the
Guarantors may be different from the Guarantors that initially guaranteed the
Securities pursuant to the Indenture so long as the Securities are at all times
guaranteed in compliance with the Indenture (the "Exchange Securities") (and
which are entitled to the benefits of the Indenture or a trust indenture which
is identical to the Indenture (other than such changes to the Indenture or any
such identical trust indenture as are necessary to comply with any requirements
of the SEC to effect or maintain the qualification thereof under the TIA) and
which, in either case, has been qualified under the TIA), except that the
Exchange Securities shall have been registered pursuant to an effective
Registration Statement in compliance with the Securities Act. The Exchange Offer
will be registered pursuant to the Securities Act on an appropriate form (the
"Exchange Registration Statement") and will comply with all applicable tender
offer rules and regulations promulgated pursuant to the Exchange Act and shall
be duly registered or qualified pursuant to all applicable state securities or
Blue Sky laws. The Exchange Offer shall not be subject to any condition, other
than that the Exchange Offer does not violate any applicable law or
interpretation of the staff of the SEC. No securities shall be included in the
Registration Statement covering the Exchange Offer other than the Exchange
Securities. The Company and the Guarantors agree to use their best efforts to
(x) cause the Exchange Registration Statement to become effective pursuant to
the Securities Act on or before the Effectiveness Target Date; (y) keep the
Exchange Offer open for 20 business days (or such longer period required by
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applicable law) after the commencement of the Exchange Offer; and (z) consummate
the Exchange Offer no later than 30 days after the earlier of the effectiveness
thereof or the Effectiveness Target Date. Each Holder who participates in the
Exchange Offer will be required to represent that any Exchange Securities
received by it will be acquired in the ordinary course of its business, that at
the time of the consummation of the Exchange Offer such Holder will have no
arrangement or understanding with any Person to participate in the distribution
of the Exchange Securities, and that such Holder is not an affiliate of the
Company within the meaning of Rule 405 of the Securities Act (or that if it is
such an affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable). Each Holder that
is not a Participating Broker-Dealer will be required to represent that it is
not engaged in, and does not intend to engage in, the distribution of the
Exchange Securities. Each Holder that is (i) a Participating Broker-Dealer and
(ii) will receive Exchange Notes for its own account in exchange for the
Transfer Restricted Securities that it acquired as the result of market making
or other trading activities will be required to acknowledge that it will deliver
a Prospectus as required by law in connection with any resale of such Exchange
Securities. Upon consummation of the Exchange Offer in accordance with this
Agreement, the Company and the Guarantors shall have no further obligation to
register Transfer Restricted Securities pursuant to Section 2(c) and Section 3
of this Agreement.
(b) The Company and the Guarantors shall include within the
Prospectus contained in the Exchange Registration Statement a section entitled
"Plan of Distribution," acceptable to the Purchasers, which shall contain a
summary statement of the positions taken or policies made by the Staff of the
SEC with respect to the potential "underwriter" status of any broker-dealer that
is the beneficial owner (as defined in Rule 13d-3 under
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the Exchange Act) of Exchange Securities received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution"
section shall also allow the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, and include a statement describing the means by
which Participating Broker-Dealers may resell the Exchange Securities.
The Company and the Guarantors shall use their best efforts to
keep the Exchange Registration Statement effective and to amend and supplement
the Prospectus contained therein, in order to permit such Prospectus to be
lawfully delivered by all persons subject to the prospectus delivery
requirements of the Securities Act, for a period of at least 120 days after
consummation of the Exchange Offer (or such longer period if extended pursuant
to the last paragraph of Section 5) (the "Applicable Period").
In connection with the Exchange Offer, the Company shall:
(a) mail as promptly as practicable to each Holder a copy of
the Prospectus forming part of the Exchange Registration Statement,
together with an appropriate letter of transmittal and related
documents;
(b) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York; and
(c) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business day
on which the Exchange Offer shall remain open.
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As soon as practicable after the close of the Exchange Offer,
the Company and the Guarantors shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly
to each tendering Holder of Securities, Exchange Securities equal in
principal amount to the Securities of such Holder so accepted for
exchange.
(c) If (1) prior to the consummation of the Exchange Offer,
applicable interpretations of the staff of the SEC do not permit the Company and
the Guarantors to effect the Exchange Offer as contemplated herein, or (2) the
Exchange Offer is not consummated within 120 days of the Issue Date for any
reason, then the Company shall promptly deliver to the Holders and the Trustee
written notice thereof (the "Shelf Notice") and the Company and the Guarantors
shall file a Registration Statement pursuant to Section 3. Following the
delivery of a Shelf Notice to the Holders of Transfer Restricted Securities, the
Company and the Guarantors shall not have any further obligation to conduct the
Exchange Offer pursuant to this Section 2, provided that the Company and the
Guarantors shall have the right, nonetheless, to proceed to consummate the
Exchange Offer notwithstanding their obligations pursuant to this Section 2(c)
(and, upon such consummation, their obligation to consummate a Shelf
Registration pursuant to clause (2) above shall terminate).
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3. Shelf Registration
If the Company is required to deliver a Shelf Notice as
contemplated by Section 2(c), then:
(a) Shelf Registration. The Company and the Guarantors shall
prepare and file with the SEC, as promptly as practicable following the delivery
of the Shelf Notice, a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Transfer Restricted
Securities (the "Shelf Registration"). The Shelf Registration shall be on Form
S-3 or another appropriate form permitting registration of such Transfer
Restricted Securities for resale by the Holders in the manner or manners
reasonably designated by them (including, without limitation, one or more
underwritten offerings). The Company and the Guarantors shall not permit any
securities other than the Transfer Restricted Securities to be included in the
Shelf Registration. The Company and the Guarantors shall use their best efforts,
as described in Section 5(b), to cause the Shelf Registration to be declared
effective pursuant to the Securities Act as promptly as practicable following
the filing thereof and to keep the Shelf Registration continuously effective
under the Securities Act until the earliest of (i) the date which is 36 months
after the Issue Date, (ii) the date that all Transfer Restricted Securities
covered by the Shelf Registration have been sold in the manner set forth and as
contemplated in the Shelf Registration or (iii) there ceases to be outstanding
any Transfer Restricted Securities (the "Effectiveness Period").
(b) Supplements and Amendments. The Company and the Guarantors
shall use their best efforts to keep the Shelf Registration continuously
effective by supplementing and amending the Shelf Registration if required by
the rules, regulations or instructions applicable to
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the registration form used for such Shelf Registration, 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 covered by such
Registration Statement and by any underwriter of such Transfer Restricted
Securities.
(c) Suspension of Use of Prospectus. The Company may suspend
the use of the Prospectus as required by law or, for a period not to exceed 60
days in the aggregate, for valid business reasons (not including avoidance of
the Company's and the Guarantors' obligations hereunder), including the material
acquisition or divestiture of assets, pending material corporate developments
and similar events; provided, however, that the Company shall pay Liquidated
Damages (as defined) during the period of any such suspension.
4. Liquidated Damages
(a) The Company, the Guarantors and the Purchasers agree that
the Holders of Transfer Restricted Securities will suffer damages if the Company
and the Guarantors fail to fulfill their obligations pursuant to Section 2 or
Section 3 hereof and that it would not be possible to ascertain accurately the
extent of such damages. Accordingly, in the event of such failure by the Company
or any Guarantor to fulfill such obligations, the Company and the Guarantors
hereby agree to pay liquidated damages ("Liquidated Damages") to each Holder of
Transfer Restricted Securities under the circumstances and to the extent set
forth below:
(i) if neither the Exchange Registration Statement nor the
Shelf Registration has been filed with the SEC on or prior to the
Filing Date; or
(ii) if neither the Exchange Registration
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Statement nor the Shelf Registration is declared effective by the SEC
on or prior to the Effectiveness Target Date; or
(iii) if (A) an Exchange Registration Statement is declared
effective by the SEC, and (B) the Company and the Guarantors have not
exchanged Exchange Securities for all Securities validly tendered in
accordance with the terms of the Exchange Offer on or prior to 30 days
following the earlier of (i) the effectiveness thereof or (ii) the
Effectiveness Target Date; or
(iv) the Shelf Registration has been declared effective by the
SEC and such Shelf Registration 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 to such Registration
Statement that cures such failure and that is itself immediately
declared effective on the same day;
(any of the foregoing, a "Registration Default") then the Company shall pay to
each Holder of Transfer Restricted Securities Liquidated Damages in an amount
equal to 0.5% per annum of the principal amount of Transfer Restricted
Securities held by such Holder during the first 90-day period immediately
following the occurrence of such Registration Default. The amount of such
Liquidated Damages will increase by an additional 0.5% per annum of the
principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period, until all Registration Defaults have been cured;
provided, however, that Liquidated Damages shall not at any time exceed 2.0% per
annum of the principal amount of Transfer Restricted Securities. Following the
cure of all Registration Defaults relating to any Transfer Restricted
Securities, the accrual of Liquidated Damages with respect to such
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Transfer Restricted Securities will cease. A Registration Default under clause
(i) above shall be cured on the date that either the Exchange Registration
Statement or the Shelf Registration is filed with the SEC; a Registration
Default under clause (ii) above shall be cured on the date that either the
Exchange Registration Statement or the Shelf Registration is declared effective
by the SEC; a Registration Default under clause (iii) above shall be cured on
the earlier of the date (A) the Exchange Offer is consummated or (B) a Shelf
Registration Statement is declared effective; and a Registration Default under
clause (iv) above shall be cured on the date that the post-effective amendment
curing the deficiency in the Shelf Registration is declared effective.
Notwithstanding anything herein to the contrary, no Registration Default shall
be deemed to have occurred if the Company and the Guarantors fail to meet their
obligations hereunder solely due to the Initial Purchaser's failure to resolve
any issues raised by the NASD with respect to the Initial Purchaser's
relationship to the Company in the context of the Exchange Offer or the Shelf
Registration Statement.
(b) The Company shall notify the Trustee within two business
days after each and every date on which a Registration Default occurs (an "Event
Date"). Liquidated Damages shall be paid by the Company to the Holders by wire
transfer of immediately available funds to the accounts specified by them or by
mailing checks to their registered addresses if no such accounts have been
specified on or before the semi-annual interest payment date provided in the
Indenture. Each obligation to pay Liquidated Damages shall be deemed to commence
accruing on the applicable Event Date and to cease accruing when all
Registration Defaults have been cured. In no event shall the Company pay
Liquidated Damages in excess of the maximum applicable amount set forth above,
regardless of whether one or multiple Registration Defaults exist.
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5. Registration Procedures
In connection with the registration of any Exchange Securities
or Transfer Restricted Securities pursuant to Sections 2 or 3 hereof, the
Company and the Guarantors shall effect such registration to permit the sale of
such Exchange Securities or Transfer Restricted Securities (as applicable) in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company and the Guarantors shall:
(a) Prepare and file with the SEC, a Registration Statement or
Registration Statements as prescribed by Section 2 or 3, and to use their best
efforts to cause such Registration Statement(s) to become effective and remain
effective as provided herein; provided that, if (1) such filing is pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, before filing any Registration Statement or Prospectus or
any amendments or supplements thereto, the Company shall, if requested, furnish
to and afford you a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (at least 3 business days
prior to such filing) and shall use their reasonable efforts to reflect in each
such document, when so filed with the SEC, such comments as you may reasonably
and timely propose.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the periods required
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by Section 2 or Section 3, as applicable; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provision then in force) under the
Securities Act; and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations of the SEC promulgated thereunder
with respect to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and with
respect to the subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus; the Company and the Guarantors
shall be deemed not to have used their best efforts to keep a Registration
Statement effective during the Applicable Period if they voluntarily take any
action that would result in selling Holders of the Transfer Restricted
Securities covered thereby or Participating Broker-Dealers seeking to sell
Exchange Securities not being able to sell such Transfer Restricted Securities
or such Exchange Securities during that period, unless (i) such action is
required by applicable law, or (ii) such action is taken by them in good faith
and for valid business reasons (not including avoidance of their obligations
hereunder), including the acquisition or divestiture of assets.
(c) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, notify the selling Holders of Transfer Restricted Securities,
or each such Participating Broker-Dealer known to the Company, as the case may
be, their counsel and the managing underwriters, if any, as soon as practicable
and confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement
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or any post-effective amendment, when the same has become effective (including
in such notice a written statement that any Holder may, upon request, obtain,
without charge, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules, documents
incorporated (excluding exhibits thereto) or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose, (iii) if at any time when a prospectus is
required by the Securities Act to be delivered in connection with sales of the
Transfer Restricted Securities the representations and warranties of the Company
or the Guarantors contained in any agreement (including any underwriting
agreement) contemplated by Section 5(l) below cease to be true and correct, (iv)
of the receipt by the Company or the Guarantors of any notification with respect
to the suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Transfer Restricted Securities or the
Exchange Securities to be sold by any Participating Broker-Dealer for offer or
sale in any jurisdiction, or the initiation of any proceeding for such purpose,
(v) of the happening of any event or any information becoming known that makes
any statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in such
Registration Statement, Prospectus or documents 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, 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
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to make the statements therein, in light of the circumstances under which they
were made, not misleading, provided that no such notice shall be required if the
Company has elected to suspend the use of the Prospectus for valid business
purposes pursuant to Section 5(b) hereof, and (vi) of the Company's and the
Guarantors' reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Transfer Restricted Securities
or the Exchange Securities (as applicable) to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued,
to use their reasonable best efforts to obtain the withdrawal of any such order
at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriters, if any, and the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities being sold
in connection with an underwritten offering, (i) as soon as practicable
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, or such Holders or counsel
reasonably request to be included therein, (ii) make all required filings of
such prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement or
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post-effective amendment, and (iii) supplement or make amendments to such
Registration Statement with such information as the managing underwriter, if
any, and such Holders and counsel reasonably request to be included therein.
(f) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, furnish to each selling Holder of Transfer Restricted
Securities and to each such Participating Broker-Dealer who so requests, as the
case may be, their counsel and each managing underwriter, if any, without
charge, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated
(excluding exhibits thereto) or deemed to be incorporated therein by reference
and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, deliver to each selling Holder of Transfer Restricted
Securities pursuant to a Shelf Registration, or each such Participating
Broker-Dealer, as the case may be, their counsel, and the underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses (including each
form of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein (excluding exhibits thereto) as such
Persons may reasonably request; and, subject Section 5(b) and to the last
paragraph of this Section 5, the Company
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and the Guarantors hereby consent to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Securities or each such Participating Broker-Dealer, as the case may
be, and the underwriters or agents, if any, and dealers (if any), in connection
with the offering and sale of the Transfer Restricted Securities covered by or
the sale by Participating Broker-Dealers of the Exchange Securities pursuant to
such Prospectus and any amendment or supplement thereto.
(h) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Transfer Restricted Securities and the
managing underwriters, if any, to (i) facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be sold,
which certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company, (ii) enable such
Transfer Restricted Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or Holders may reasonably
request and (iii) provide a CUSIP number for the Transfer Restricted Securities.
(i) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, upon the occurrence of any event contemplated by paragraph
5(c)(v) or 5(c)(vi) above, as promptly as practicable prepare and (subject to
Sections 5(a) and 5(b) above) file with the SEC, at the expense of the Company
and the Guarantors, a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, or file any other
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required document so that, as thereafter delivered to the purchasers of the
Transfer Restricted Securities being sold thereunder or to the purchasers of the
Exchange Securities to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any 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.
(j) In connection with an underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings and take all
such other actions as are reasonably requested by the managing underwriters in
order to expedite or facilitate the registration or the disposition of such
Transfer Restricted Securities, and in such connection, (i) make such
representations and warranties to the underwriters, with respect to the business
of the Company, the Guarantors and their subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and the
Guarantors and updates thereof in form and substance reasonably satisfactory to
the managing underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by underwriters; (iii) obtain "cold
comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the independent certified public
accountants of the Company and the Guarantors (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or the
Guarantors or of any business acquired or to be acquired by any of them for
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which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
offerings and such other matters as are reasonably requested by underwriters as
permitted by Statement on Auditing Standards No. 72; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 hereof (or such
other provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Transfer Restricted Securities covered by such Registration
Statement and the managing underwriters or agents) with respect to all parties
to be indemnified pursuant to said Section. The above shall be done at each
closing under such underwriting agreement, or as and to the extent required
thereunder.
(k) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, (i) make available for inspection by any selling Holder of
such Transfer Restricted Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Transfer Restricted Securities, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during reasonable
business hours and upon at least __ business days' notice, all financial and
other records, pertinent corporate documents and properties of the Company, the
Guarantors and their subsidiaries (collectively, the
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"Records") as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and (ii) cause the officers,
directors and employees of the Company, the Guarantors and their subsidiaries to
supply all information in each case reasonably requested by any such Inspector
in connection with such Registration Statement.
(l) Provide an indenture trustee for the Transfer Restricted
Securities or the Exchange Securities, as the case may be, and cause the
Indenture to be qualified under the TIA not later than the effective date of the
Exchange Offer or the first Registration Statement relating to the Transfer
Restricted Securities; and in connection therewith, cooperate with the trustee
under any such indenture and the holders of the Transfer Restricted Securities,
to effect such changes to such indenture 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 such trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to
be filed with the SEC to enable such indenture to be so qualified in a timely
manner.
(m) Comply with all applicable rules and regulations of the
SEC and, as soon as reasonably practicable, make generally available to its
securityholders consolidated earnings statements (which need not be audited) of
the Company that satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder.
(n) If an Exchange Offer is to be consummated, upon delivery
of the Transfer Restricted Securities by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the Exchange
Securities, the Company and the Guarantors shall xxxx, or cause to be marked, on
such Transfer Restricted Securi-
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ties that such Transfer Restricted Securities are being cancelled in exchange
for the Exchange Securities.
(o) Cooperate with each seller of Transfer Restricted
Securities covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
(p) Use their best efforts to take all other steps necessary
to effect the registration of the Transfer Restricted Securities or Exchange
Securities, as applicable, covered by a Registration Statement contemplated
hereby.
The Company may require each seller of Transfer Restricted
Securities or Participating Broker-Dealer as to which any registration is being
effected to furnish to the Company such information regarding such seller or
Participating Broker-Dealer and the distribution of such Transfer Restricted
Securities or Exchange Securities to be sold by such Participating
Broker-Dealer, as the case may be, as the Company may, from time to time,
reasonably request. The Company may exclude from such registration the Transfer
Restricted Securities of any Holder or seller or Participating Broker-Dealer who
fails to furnish such information within a reasonable time after receiving such
request, until such time as such information is so provided.
Each Holder of Transfer Restricted Securities and each
Participating Broker-Dealer agrees by acquisition of such Transfer Restricted
Securities or Exchange Securities to be sold by such Participating
Broker-Dealer, as the case may be, that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 5(c)(ii),
5(c)(iv), 5(c)(v) or
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5(c)(vi), such Holder will forthwith discontinue disposition of such Transfer
Restricted Securities covered by such Registration Statement or Prospectus or
Exchange Securities to be sold by such Participating Broker-Dealer, as the case
may be, until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5(i), or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event the Company gives any notice of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi), the time period
for the effectiveness of such Registration Statement set forth in Section 2 or
Section 3 hereof, as applicable, shall be extended by the number of days from
the date of such notice to the date when each selling Holder covered by such
Registration Statement shall have received copies of the supplemental or amended
Prospectus contemplated by Section 5(i) or shall have received the Advice that
the use of the applicable Prospectus may be resumed.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company or the Guarantors shall be borne
by the Company and the Guarantors, whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without limitation, (i)
all registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Transfer Restricted Securities or Exchange Securities (x) where the Holders of
Transfer Restricted Securities are located, in the case of the
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Exchange Securities, or (y) as provided in Section 5(g), in the case of Transfer
Restricted Securities or Exchange Securities to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Transfer Restricted
Securities or Exchange Securities in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriters, if any, or, in respect
of Transfer Restricted Securities or Exchange Securities to be sold by any
Participating Broker-Dealer during the Applicable Period, by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Securities
included in any Registration Statement or of such Exchange Securities, as the
case may be), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company and the Guarantors, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(k)(iii) (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such performance),
(vi) rating agency fees, (vii) Securities Act liability insurance, if the
Company and the Guarantors desire such insurance, (viii) fees and expenses of
all other Persons retained by the Company or the Guarantors, (ix) internal
expenses of the Company and the Guarantors (including, without limitation, all
salaries and expenses of officers and employees of the Company and the
Guarantors performing legal or accounting duties), (x) the expense of any annual
audit, (xi) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange and (xii) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, and
indentures. Nothing contained in this Section 6 shall create an obligation on
the part of the Company or any Guarantor to pay or reimburse any Holder for any
under-
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writing commission or discount attributable to any such Holder's Transfer
Restricted Securities included in an underwritten offering pursuant to a
Registration Statement filed in accordance with the terms of this Agreement, or
to guarantee such Holder any profit or proceeds from the sale of such
Securities.
(b) In connection with any Shelf Registration hereunder, the
Company and the Guarantors shall reimburse the Holders of the Transfer
Restricted Securities being registered in such registration for the reasonable
fees and disbursements of not more than one firm of attorneys (in addition to
one local firm of attorneys in each relevant jurisdiction) chosen by the Holders
of a majority in aggregate principal amount of the Transfer Restricted
Securities to be included in such Registration Statement.
7. Indemnification
The Company and each Guarantor agrees, jointly and severally,
to indemnify and hold harmless (i) each of the Purchasers, each Holder of
Transfer Restricted Securities, each Holder of Exchange Securities, each
Participating Broker-Dealer, (ii) each person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
any such Person (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"), and (iii) the respective
officers, directors, partners, employees, representatives and agents of any of
such Person or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified Person") to the
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including, without limitation, and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced
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or threatened, including the reasonable fees and expenses of counsel to any
Indemnified Person) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by,
arising out of or based upon any omission or alleged omission to state therein 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, except insofar as such losses, claims, damages or liabilities are
caused by (i) any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Indemnified Person furnished to the Company in writing by such Indemnified
Person expressly for use therein, or (ii) any untrue statement contained in or
omission from a preliminary prospectus if a copy of the Prospectus (as then
amended or supplemented, if the Company shall have furnished to or on behalf of
the Holder participating in the distribution relating to the relevant
Registration Statement any amendments or supplements thereto) was not sent or
given by or on behalf of such Holder to the person asserting any such losses,
liabilities, claims, damages or expenses who purchased Securities, if such is
required by law at or prior to the written confirmation of the sale of such
Securities to such person and the untrue statement contained in or omission from
such preliminary prospectus was corrected in the Prospectus (or the Prospectus
as amended or supplemented). The Company and the Guarantors shall notify the
Trustee promptly of the institution, threat or assertion of any claim,
proceeding, action (including any governmental investigation) or litigation of
which it or they shall have become aware in connection with the matters
addressed by this Agreement which involves the Company, any
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30
Guarantor or an Indemnified Person.
In connection with any Registration Statement in which a
Holder of Transfer Restricted Securities is participating, such Holder of
Transfer Restricted Securities agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Guarantors and their directors and officers
and each person who controls the Company or the Guarantors within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company and the Guarantors to each
Indemnified Person, but only with reference to information relating to such
Indemnified Person furnished to the Company in writing by such Indemnified
Person expressly for use in any Registration Statement or Prospectus, any
amendment or supplement thereto, or any preliminary prospectus. The liability of
any Indemnified Person pursuant to this paragraph shall in no event exceed the
net proceeds received by such Indemnified Person from sales of Transfer
Restricted Securities giving rise to such obligations.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
person") in writing, and the indemnifying person shall have the right to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying person
may reasonably designate in such proceeding and shall pay the reasonable fees
and expenses actually incurred by such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the
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31
fees and expenses of such counsel shall be at the expense of such indemnified
party, unless (i) the indemnifying person and the indemnified party shall have
mutually agreed in writing to the contrary, (ii) the indemnifying person failed
to assume the defense within a reasonable time after the commencement of the
action and employ counsel reasonably satisfactory to the indemnified party or
(iii) the named parties to any such action (including any impleaded parties)
include both such indemnified party and the indemnifying person or any affiliate
of the indemnifying person and such indemnified party shall have been reasonably
advised by counsel that either (x) there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying person or such affiliate of the indemnifying person or (y) a
conflict may exist between such indemnified party and the indemnifying person or
such affiliate of the indemnifying person (in which case the indemnifying person
shall not have the right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, that the indemnifying person
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 firm of
attorneys) for all such indemnified parties, which firm shall be designated in
writing by Indemnified Persons who sold a majority in aggregate principal amount
of Transfer Restricted Securities sold by all such Indemnified Persons and any
such separate firm for the Company and the Guarantors, their directors, their
officers and such controlling persons of the Company and the Guarantors shall be
designated in writing by the Company. The indemnifying person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying person agrees to
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32
indemnify any indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying person 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.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses referred to therein
(other than by reason of the exceptions provided therein), then each
indemnifying person under such paragraphs, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, liabilities,
or expenses (i) in such proportion as is appropriate to reflect the relative
benefits of the indemnified party, on the one hand, and the indemnifying
person(s), on the other, in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities, or expenses 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 indemnifying
person(s) and the indemnified party, as well as any other relevant equitable
considerations. The relative fault of the indemnifying person(s), on the one
hand, and any indemnified parties, on the other, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by
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33
the indemnifying person(s), on the one hand, or by such indemnified parties, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if such indemnified parties were treated as one entity for such purpose)
or by any other method of allocation that 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 and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
indemnified party be required to contribute any amount in excess of the amount
by which proceeds received by such indemnified party from sales of Transfer
Restricted Securities exceeds the amount of any damages that such indemnified
party 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 indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the indemnifying persons
may otherwise have to the indemnified parties referred to above. The indemnified
parties' obligations to contribute pursuant to Section 7 are several in
proportion to the respective principal amount of Securities sold by each of the
indem-
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nified parties hereunder and not joint.
8. Rules 144 and 144A
The Company and the Guarantors covenant that they will file
the reports required to be filed by them pursuant to the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder in a
timely manner and, if at any time the Company and the Guarantors are not
required to file such reports, they will, upon the request of any Holder of
Transfer Restricted Securities, make available information required by Rules 144
and 144A under the Securities Act in order to permit sales pursuant to Rule 144
and Rule 144A.
9. Underwritten Registrations
(a) If any of the Transfer Restricted Securities covered by
any Shelf Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities included in such
offering and reasonably acceptable to the Company.
No Holder of Transfer Restricted Securities 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
customary underwriting arrangements entered into in connection therewith and
(ii) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
(b) Each Holder of Transfer Restricted Securities agrees, if
requested (pursuant to a timely written notice) by the managing underwriters in
an underwritten
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35
offering or placement agent in a private offering of the Company's debt
securities, not to effect any private sale or distribution (including a sale
pursuant to Rule 144(k) and Rule 144A, but excluding non-public sales to any of
its affiliates, officers, directors, employees and controlling persons) of any
of the Securities except pursuant to an Exchange Offer, during the period
beginning 10 days prior to, and ending 90 days after, the closing date of the
underwritten offering.
The foregoing provisions shall not apply to any Holder of
Transfer Restricted Securities if such Holder is prevented by applicable statute
or regulation from entering into any such agreement.
The Company and the Guarantors agree that without the written
consent of the managing underwriters in an underwritten offering of Transfer
Restricted Securities covered by a Registration Statement filed pursuant to
Section 3 hereof, they will not effect any public or private sale or
distribution of their respective debt securities, including a sale pursuant to
Section 4(2) of the Securities Act, during the period beginning 10 days prior
to, and ending 90 days after, the closing date of each underwritten offering
made pursuant to such Registration Statement; provided, however, that such
period shall be extended by the number of days from and including the date of
the giving of any notice pursuant to Section 5(c)(v) or 5(c)(vi) hereof to and
including the date when each seller of Transfer Restricted Securities covered by
such Registration Statement shall have received the copies of the supplemented
or amended Prospectus contemplated by Section 5(i) hereof and provided, further,
that no such offering restriction shall apply to more than one such underwritten
offering per twelve-month period.
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36
10. Miscellaneous
(a) Remedies. In the event of a breach by the Company of any
of their obligations under this Agreement, each Holder of Transfer Restricted
Securities, in addition to being entitled to exercise all rights provided
herein, in the Indenture or, in the case of the Initial Purchaser, in the
Purchase Agreement, or granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Subject to
Section 4, the Company and the Guarantors agree that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by them 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.
(b) No Inconsistent Agreements. Neither the Company nor any
Guarantor will enter into any agreement with respect to any of their respective
securities which will grant to any Person piggy-back registration rights with
respect to an Exchange Registration Statement or a Shelf Registration.
(c) 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, unless the Company has obtained the written consent of holders
of at least a majority of the then outstanding aggregate principal amount of
Transfer Restricted Securities and Exchange Securities held by Participating
Broker-Dealers holding Exchange Securities. 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
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37
and Participating Broker-Dealers holding Exchange Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect, impair, limit or compromise the rights of other Holders
and Participating Broker-Dealers holding Exchange Securities may be given by
holders of at least a majority in aggregate principal amount of the Transfer
Restricted Securities and Exchange Securities held by Participating
Broker-Dealers being sold by such holders pursuant to such Registration
Statement; provided that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) Notices. All notices and other communications (including
without limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Transfer Restricted Securities, at the
most current address given by the Trustee to the Company; and
(ii) if to the Company or the Guarantors, Xxxxx Xxxxxxx,
UROHEALTH Systems,Inc., 0 Xxxxx Xxxxx Xxxx., Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000, with a copy to Xxxxxxxx & Xxxxxxxx, 00000 Xxx Xxxxxx
Xxxx., Xxxxxx, Xxxxxxxxxx 00000-0000, Attention:
Xxxxxx X. Xxxxxxx, Xx. (Tel.: (000) 000-0000).
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; ten business
days after being deposited in the mail, postage prepaid, if mailed; three
business days after being timely delivered to a next-day air courier; and when
receipt is acknowledged by the addressee, if telecopied.
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38
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
under the Indenture at the address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Indemnified Persons, as applicable, and 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. The Company and the Guarantors agree that the holders of
the Securities shall be third party beneficiaries to the agreements made
hereunder by the Company and the Guarantors and each Holder shall have the right
to enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate 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.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL 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. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
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COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT TO
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
(i) Severability. 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, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement, together with the
Purchase Agreement, is intended by the parties as a final expression of their
agreement, and is 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 and therein.
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40
(k) Securities Held by the Company, the Guarantors or Their
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, any Guarantor or any of their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
Very truly yours,
UROHEALTH SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
GATES PLASTICS
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
DACOMED CORPORATION
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
DACOMED INTERNATIONAL, INC.
42
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
ALLSTATE MEDICAL PRODUCTS, INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
UROHEALTH OF KENTUCKY, INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
MICROSURGE, INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
XXXXX MEDICAL SYSTEMS, LTD.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
43
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
NT REUDT CORPORATION
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
INTERMED ASSOCIATES, INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
LAPAROMED CORPORATION
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
ADVANCED UROCARE, INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
44
UROHEALTH, INC. (CALIFORNIA)
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
45
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
BEAR, XXXXXXX & CO. INC.
By: /s/ XXXXXX XXXXXX
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Managing Director
