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Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is made and entered
into as of July 8, 1996, by and among VIVRA Incorporated, a Delaware corporation
(the "Company"), Alex. Xxxxx & Sons Incorporated, Xxxxxxxxxx Securities, Bear,
Xxxxxxx & Co. Inc., Xxxxx Xxxxxx Inc. and UBS Securities LLC (the "Initial
Purchasers").
This Agreement is made pursuant to the Placement Agreement, dated July 1,
1996 (the "Placement Agreement"), between the Company and the Initial
Purchasers. In order to induce the Initial Purchasers to enter into the
Placement Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution of this Agreement is a condition to
the Closing under the Placement Agreement.
The parties hereby agree as follows:
1. Definitions
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Placement Agreement. As used in this
Agreement, the following terms shall have the following meanings:
a. Advice: See Section 4(m) hereof.
b. Affiliate: "Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified Person or (ii) any
officer or director of such other Person. For purposes of this definition, the
term "control" (including the terms "controlling," "controlled by" and "under
common control with") of a Person means the possession, direct or indirect, of
the power (whether or not exercised) to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
c. Common Stock: The shares of common stock, par value $0.01 per share, of
the Company issuable or issued upon conversion of the Notes and any Common Stock
issued with respect thereto upon any stock dividend, split or similar stock.
d. Effectiveness Date: The date that is 180 days after the date of the
Closing under the Placement Agreement.
e. Effectiveness Period: See Section 2(a) hereof.
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f. Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
g. Filing Date: The date that is 90 days after the date of the Closing
under the Placement Agreement.
h. Indenture: The Indenture, dated as of July 8, 1996, between the Company
and State Street Bank and Trust Company, as trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof.
i. Initial Shelf Registration: See Section 2(a) hereof.
j. Losses: See Section 6(a) hereof.
k. Notes: The 5% Convertible Subordinated Notes Due 2001 of the Company
being issued and sold pursuant to the Placement Agreement and the Indenture.
l. Placement Agreement: See the second paragraph of this Agreement.
m. Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses 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, including, without
limitation, with respect to the terms of the offering of any portion of the
Registrable Securities 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.
n. Initial Purchasers: Alex. Xxxxx & Sons Incorporated, Xxxxxxxxxx
Securities, Bear Xxxxxxx & Co. Inc., Xxxxx Xxxxxx Inc. and UBS Securities LLC.
o. Registrable Securities: The Notes and the Common Stock issuable upon
conversion of the Notes, upon original issuance thereof and at all times
subsequent thereto, until, in the case of any such Note or share of Common
Stock, (i) it is effectively registered under the Securities Act and disposed of
in accordance with the Registration Statement covering it, (ii) it is saleable
by the holder thereof pursuant to Rule 144 or (iii) it is distributed to the
public pursuant to Rule 144.
p. Registration Expenses: See Section 5 hereof.
q. Registration Statement: Any registration statement of the Company which
covers any of the Registrable 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.
r. Rule 144: Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
SEC.
s. Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
t. SEC: The Securities and Exchange Commission.
u. Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
v. Shelf Registration: See Section 2 hereof.
w. Special Counsel: Xxxxxx & Xxxxxxx, or such other special counsel to the
Initial Purchasers or the holders of the Registrable Securities as shall be
specified by holders of a majority of the Registrable Securities, the fees and
expenses of which will be paid by the Company pursuant to Section 5 hereof.
x. Subsequent Shelf Registration: See Section 2(b) hereof.
y. TIA: The Trust Indenture Act of 1939, as amended.
z. Trustee: State Street Bank and Trust Company, as trustee under the
Indenture.
aa. Underwritten Offering: A registration in which the Registrable
Securities are sold to an underwriter or underwriters for reoffering and sale to
the public.
2. Shelf Registration
(a) Shelf Registration. The Company shall prepare and file with the SEC on
or prior to the Filing Date a Registration Statement for an offering to be made
on a continuous basis pursuant to Rule 415 covering the resale from time to time
by the holders thereof of all of the Registrable Securities (the "Initial Shelf
Registration"). The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Securities for
resale by such holders (including one or more underwritten offerings). The
Company shall use all reasonable efforts to cause the Initial Shelf Registration
to be declared effective under the Securities Act on or prior to the
Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date that is three years from the
last date of issuance of any of the Notes (the "Effectiveness Period"), or such
shorter period ending when (i) all Registrable Securities covered by the Initial
Shelf Registration have been sold, or (ii) a Subsequent Shelf
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Registration covering all of the Registrable Securities has been declared
effective under the Securities Act or (iii) there cease to be outstanding any
Registrable Securities.
(b) If the Initial Shelf Registration or any Subsequent Shelf Registration
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities registered
thereunder), the Company shall use all reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 30 days of such cessation of effectiveness amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall use all reasonable efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Registration Statement continuously effective
until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration or
Subsequent Shelf Registration, as the case may be, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Initial Purchasers or by the Trustee on behalf of
the holders of the Registrable Securities covered by such Registration Statement
or by any managing underwriter of such Registrable Securities.
3. Liquidated Damages
(a) The parties hereto agree that the holders of Registrable Securities
will suffer damages and that it would not be feasible to ascertain the extent of
such damages with precision, if (i) the Initial Shelf Registration has not been
filed on or prior to the Filing Date, (ii) the Initial Shelf Registration has
not become effective on or prior to the Effectiveness Date, (iii) prior to the
end of the Effectiveness Period, the SEC shall have issued a stop order
suspending the effectiveness of any Shelf Registration or proceedings have been
initiated under Section 8(d) or 8(e) of the Securities Act, or (iv) a notice
under Section 4(c)(v) hereof is delivered and either (A) such notice is
delivered during the period from the effective date of the Initial Shelf
Registration until 90 days thereafter (the "Initial Resale Period"), (B) the
aggregate number of days since the Initial Resale Period for which all notices
delivered pursuant to Section 4(c)(v) hereof have been in effect exceeds 90 days
or (C) such notice is either the second such notice in any three-month period or
the third such notice in any twelve-month period (individually referred to
herein as an "Event;" the Filing Date in the case of clause (i), the
Effectiveness Date in the case of clause (ii), the date on which the
Registration Statement ceases to be effective or proceedings referred to therein
have been commenced in the case of clause (iii), and the date on which such
notice is delivered in the case of clause (iv)(A) or the date on which the
90-day limit is exceeded in the case of clause (iv)(B) or the date on which the
second or third notice, respectively, is delivered in the case of clause
(iv)(C), being referred to herein as an "Event Date").
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Accordingly, upon the occurrence of each Event, in addition to agreeing to
use all reasonable efforts to ensure that the use of the Prospectus may be
resumed as quickly as practicable, commencing on the Event Date, the Company
agrees to pay, as liquidated damages, and not as a penalty, to each holder of a
Registrable Security, an additional amount (the "Liquidated Damages Amount")
equal to one-half of one percent per annum (50 basis points) per $1,000
principal amount of Notes held by such holder and one-half of one percent per
annum (50 basis points) calculated on an amount equal to the product of (x) the
Conversion Price (as defined in the Indenture) times (y) the number of shares of
Common Stock held by such holder; provided, that such liquidated damages will,
in each case, cease to accrue on and after the date the Shelf Registration is
filed, becomes effective or resumes effectiveness, or the notice under clause
4(c)(v) is no longer in effect, as the case may be.
(b) The Company shall pay the liquidated damages due on the Registrable
Securities by depositing with the Trustee under the Indenture, in trust, for the
benefit of the holders thereof, at least one business day prior to the
applicable interest payment date, sums sufficient to pay the liquidated damages
then due. The liquidated damages amount due shall be payable on each interest
payment date to the record holder entitled to receive the interest payment to be
made on such date, provided that accrued liquidated damages amounts shall be
paid on the applicable redemption date upon the redemption of any Note (to the
extent accrued with respect to such Note) and, in the event of redemption of all
Notes, shall also be paid on such redemption date to the holders of Common Stock
(to the extent accrued with respect to such Common Stock). The Trustee shall be
entitled, on behalf of the holders of Registrable Securities, to seek any
available remedy for the enforcement of this Agreement, including for the
payment of such liquidated damages. All of the Company's obligations set forth
in this Section 3 which are outstanding with respect to any Registrable
Securities at the time such security ceases to be a Registrable Security shall
survive until such time as all such obligations with respect to such security
have been satisfied in full (notwithstanding termination of the Agreement
pursuant to Section 8(o).
(c) 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 Registrable Securities (other than the Initial
Purchasers) by reason of the failure of the Shelf Registration to be filed, be
declared effective or be available for use, as the case may be, in accordance
with the provisions hereof.
4. Registration Procedures
In connection with the Company's registration obligations under Section 2
hereof, the Company shall effect such registrations to permit the sale of the
Registrable Securities in accordance with the method or methods of disposition
thereof intended by the holders of such Registrable Securities (including one or
more Underwritten Offerings), and pursuant thereto the Company shall as
expeditiously as possible:
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(a) Prepare and file with the SEC a Registration Statement or Registration
Statements on any appropriate form under the Securities Act available for the
sale of the Registrable Securities by the holders thereof in accordance with the
intended method or methods of distribution thereof, and cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, that before filing any such Registration Statement or
Prospectus or any amendments or supplements thereto (other than documents that
would be incorporated or deemed to be incorporated therein by reference and that
the Company is required by applicable securities laws or stock exchange
requirements to file) the Company shall furnish to the holders of the
Registrable Securities covered by such Registration Statement, the Initial
Purchasers and the Special Counsel, copies of all such documents proposed to be
filed, which documents will be subject to the review of such holders and the
Special Counsel, and the Company shall not file any such Registration Statement
or amendment thereto or any Prospectus or any supplement thereto (other than
such documents which, upon filing, would be incorporated or deemed to be
incorporated by reference therein and that the Company is required by applicable
securities laws or stock exchange requirements to file) to which the holders of
a majority in aggregate principal amount of the Registrable Securities covered
by such Registration Statement, the Initial Purchasers or the Special Counsel
shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2; 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 provisions then in force) under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during the applicable
period in accordance with the methods of disposition intended by the holders
thereof set forth in such Registration Statement as so amended or to such
Prospectus as so supplemented.
(c) Notify the selling holders of Registrable Securities, the Initial
Purchasers and the Special Counsel promptly, and (if requested by any such
Person) 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 or any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC or any other federal or state
governmental authority during the period of effectiveness of the Registration
Statement for amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) 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 Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the existence of any fact or the happening of any event which
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 which requires the making of any
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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 to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and (vi) of the Company's reasonable determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) Use all reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment.
(e) Subject to the last paragraph of this Section 4, if reasonably
requested by the Initial Purchasers or the holders of a majority in aggregate
principal amount of the Registrable Securities being sold, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the Company, the Initial Purchasers or such holders agree should
be included therein as required by applicable law, (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 post-effective amendment, and
(iii) supplement or make amendments to any Registration Statement consistent
with clause (i) or (ii) above; provided, that the Company shall not be required
to take any actions under this Section 4(e) that are not, in the opinion of
outside counsel for the Company, in compliance with applicable law.
(f) Furnish to each selling holder of Registrable Securities, the Initial
Purchasers and the Special Counsel, without charge, at least one conformed copy
of the Registration Statement or Statements and any post-effective 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, the Initial Purchasers or counsel).
(g) Deliver to each selling holder of Registrable Securities, the Initial
Purchasers and the Special Counsel, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
Persons may reasonably request; and the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by each of the selling
holders of Registrable Securities in connection with the offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities, to register or
qualify or cooperate with the selling holders of Registrable Securities and
their respective counsel in connection with the registration or qualification
(or exemption from such
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registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any seller 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 or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable Registration
Statement to be registered with or approved by such other governmental agencies
or authorities within the United States, except as may be required solely as a
consequence of the nature of such selling holder, 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 necessary to enable the
seller or sellers thereof to consummate the disposition of such Registrable
Securities.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or
4(c)(vi) above, prepare a supplement or post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document (such as
Current Report on Form 8-K) so that, as thereafter delivered to the purchasers
of the Registrable Securities being sold thereunder, 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
the light of the circumstances under which they were made, not misleading.
(k) If necessary in connection with a disposition of Registrable
Securities, make available for inspection, at the offices where normally kept
during reasonable business hours, by a representative of the holders of
Registrable Securities being sold or by any Managing Underwriter participating
in any disposition of the Registrable Securities, if any, and any attorney or
accountant retained by such selling holders or Managing Underwriters, 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 and employees of the Company and its subsidiaries to supply all
information reasonably requested by any such representative, managing
underwriter, attorney or accountant in connection with such disposition;
provided, that any records, information or documents that are designated by the
Company in writing as confidential at the time of delivery of such records,
information or documents shall be kept confidential by such Persons, and such
Persons shall so agree in writing, unless (i) such records, information or
documents are in the public domain or otherwise publicly available, (ii)
disclosure of such records, information or documents is required by court or
administrative order or is necessary to respond to inquiries of regulatory
authorities or (iii) disclosure of such records, information or documents is
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otherwise required by law (including, without limitation, pursuant to the
requirements of the Securities Act).
(l) Cause the Indenture to be qualified under the TIA not later than the
effective date of the first Registration Statement relating to the Registrable
Securities; and in connection therewith, cooperate with the Trustee and the
holders of the Registrable Securities, to effect such changes to the Indenture
as may be required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use all reasonable efforts to cause 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 the
Indenture to be so qualified in a timely manner.
(m) Comply with all 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 and Rule 158 thereunder (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) commencing on the first day of the first
fiscal quarter of the Company, after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(n) Enter into such agreements (including, in the event of an Underwritten
Offering, an underwriting agreement in form, scope and substance as is customary
in Underwritten Offerings) and take all such other actions in connection
therewith (including, in the event of an underwritten offering, those reasonably
requested by the managing underwriters, if any, or the holders of a majority of
the Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into, and if the registration is an
underwritten registration, (i) make such representations and warranties, subject
to the Company's ability to do so, to the holders of such Registrable Securities
and the underwriters with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested; (ii) use its
reasonable efforts to obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, Special Counsel
and the holders of a majority of the Registrable Securities being sold)
addressed to each of the underwriters covering the matters customarily covered
in opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such Special Counsel and managing underwriters; (iii)
use its reasonable efforts to obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company (and, if
necessary, any other certified public accountants of any subsidiary of the
Company or any business acquired or to be acquired by the Company for which
financial statements and financial date is, or is required to be, included in
the Registration Statement), addressed to each of the managing underwriters, if
any, such letters to be in customary form and covering
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matters of the type customarily covered in "cold comfort" letters in connection
with Underwritten Offerings; and (iv) deliver such documents and certificates as
may be reasonably requested by the holders of a majority of the Registrable
Securities being sold, the Special Counsel and the managing underwriters, if
any, to evidence the continued validity of the representations and warranties of
the Company and its subsidiaries made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company. The above shall be
done at each closing under such underwriting or similar agreement as and to the
extent required thereunder.
(o) Unless any Registrable Securities shall be in book-entry only form,
cooperate with the selling holders of Registrable Securities to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations and registered in such names
as the holders may request.
(p) Provide a CUSIP number for all Registrable Securities no later than the
effective date of the Registration Statement and, unless any Registrable
Securities shall be in book-entry only form, provide the Trustee under the
Indenture and the transfer agent for the Common Stock with printed certificates
for the Registrable Securities which are in a form eligible for deposit with The
Depository Trust Company.
(q) Cause the Common Stock to be listed on each securities exchange or
quotation system on which the Company's Common Stock is then listed no later
than the date the Registration Statement is declared effective and, in
connection therewith, to the extent applicable, to make such filings under the
Exchange Act and to have such filings declared effective thereunder.
The Company may require each selling holder of Registrable Securities as to
which any registration is being effected, and such selling holder of Registrable
Securities agrees, to furnish to the Company such information regarding the
distribution of such Registrable Securities as the Company may, from time to
time, reasonably request in writing and the Company may exclude from such
registration the Registrable Securities of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving such request.
Each Holder of Registrable Securities as to which any Registration Statement is
being effected agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not misleading. Any sale of any Registrable
Securities by any Holder shall constitute a representation and warranty by such
Holder that the information relating to such Holder and its plan of distribution
is as set forth in the Prospectus delivered by such Holder in connection with
such disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to such Holder or its
plan of distribution and that such Prospectus does not as of the time of such
sale omit to state any material fact relating to such Holder or its plan of
distribution necessary to make the statement in such Prospectus, in light of the
circumstances under which they were made, not misleading.
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Each holder of Registrable Securities agrees by acquisition of such
Registrable 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)(iv), 4(c)(v) or 4(c)(vi) hereof, such holder will forthwith discontinue
disposition of such Registrable Securities covered by the applicable
Registration Statement or Prospectus until such holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 4(j) hereof,
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
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
5. Registration Expenses
All fees and expenses incident to the performance of or compliance with
this Agreement by the Company shall be borne by the Company whether or not any
of the Registration Statements become effective and whether or not any of the
Registrable Securities are transferred pursuant to the Registration Statement.
Such fees and expenses shall include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses (A) with
respect to filings required to be made with the National Association of
Securities Dealers, Inc., (B) with respect to designation of the Registrable
Securities as eligible for trading on the Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") market or on the New York Stock Exchange,
and (C) of compliance with securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel for selling holders of
Registerable Securities in connection with Blue Sky qualifications of the
Registrable Securities and determination of the eligibility of the Registrable
Securities for investment under the laws of such jurisdictions as the holders of
a majority in aggregate principal amount of the Registrable Securities being
sold may designate), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable 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 Special Counsel or the holders
of a majority in aggregate principal amount of the Registrable Securities
included in any Registration Statement), (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Company and the Special
Counsel for the selling holders of Registrable Securities or the Initial
Purchasers in connection with the Shelf Registration (provided that the Company
shall not be liable for the reasonable fees and expenses of more than one
separate firm for all parties participating in any transaction hereunder), (v)
fees and disbursements of all independent certified public accountants, (vi)
fees and expenses of any qualified independent underwriter or other independent
appraiser participating in an offering pursuant to Section 3 of Schedule E to
the Bylaws of the National Association of Securities Dealers, Inc., (vii) rating
agency fees in connection with obtaining ratings of the Notes at the time of
their original issuance, (viii) Securities Act liability insurance if the
Company so desires such insurance, and (ix) fees and expenses of all other
Persons retained by the Company. In addition, the Company will, in any event,
bear its own internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the Registrable Securities on any
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securities exchange on which similar securities issued by the Company are then
listed and the fees and expenses of any Person, including special experts,
retained by the Company.
6. Indemnification
(a) Indemnification by the Company. The Company shall, without limitation
as to time, indemnify and hold harmless, to the fullest extent permitted by law,
each holder of Registrable Securities, the officers, directors and agents and
employees of each of them, each Person who, controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) such holder
and the officers, directors, agents and employees of any such controlling
person, from and against all losses, claims, damages, liabilities, costs
(including, without limitation, the costs of preparation and attorneys' fees)
and expenses (collectively, "Losses"), as incurred, arising out of or based upon
any untrue or allegedly untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as the same are based solely upon information furnished in writing to
the Company by such holder expressly for use therein; provided, that the Company
shall not be liable to any holder of Registrable Securities to the extent that
any such Losses arise out of or are based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any preliminary
prospectus if either (A) (i) such holder failed to send or deliver a copy of the
Prospectus with or prior to the delivery of written confirmation of the sale by
such holder of a Registrable Security to the person asserting the claim from
which such Losses arise and (ii) the Prospectus would have completely corrected
such untrue statement or alleged untrue statement or such omission or alleged
omission; or (B) (x) such untrue statement or alleged untrue statement, omission
or alleged omission is completely corrected in an amendment or supplement to the
Prospectus and (y) having previously been furnished by or on behalf of the
Company with copies of the Prospectus as so amended or supplemented, such holder
thereafter fails to deliver such Prospectus as so amended or supplemented, prior
to or concurrently with the sale of a Registrable Security to the person
asserting the claim from which such Losses arise. The Company shall also
indemnify each selling broker, dealer manager and similar securities industry
professional participating in the distribution, and each of their officers,
directors, agents and employees and each Person who controls such Persons
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) Indemnification by Holder of Registrable Securities. In connection with
any Registration Statement in which a holder of Registrable Securities is
participating, such holder agrees to indemnify, to the fullest extent permitted
by law, the Company, its directors and officers, agents and employees, each
Person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors, officers,
agents or employees of such controlling persons, from and against all Losses
arising out of or based upon any untrue statement of a material
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fact contained in any Registration Statement, Prospectus or preliminary
prospectus or arising out of or based upon any omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue statement or
omission is contained in information so furnished in writing by such holder to
the Company expressly for use in such Registration Statement or Prospectus and
that such information was solely relied upon by the Company in preparation of
such Registration Statement, Prospectus or preliminary prospectus. In no event
shall the liability of any selling holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds (net of payment of all
expenses) received by such holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation. The Company shall be entitled to
receive indemnities from selling brokers, dealer managers and similar securities
industry professionals participating in the distribution to the same extent as
provided above with respect to information so furnished in writing by such
Persons expressly for use in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. If any Person shall be entitled
to indemnity hereunder (an "indemnified party"), such indemnified party shall
give prompt notice to the party from which such indemnity is sought (the
"indemnifying party") of any claim or of the commencement of any Proceeding with
respect to which such indemnified party seeks indemnification or contribution
pursuant hereto; and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and disbursements
of such counsel related to such proceeding. The failure to so notify the
indemnifying party shall not relieve the indemnifying party from any obligation
or liability except and only to the extent that such failure was prejudicial to
the indemnifying party and the indemnifying party was actually damaged or
suffered any loss incurred any additional expense as a result thereof. In any
such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
additional to any local counsel) for all Holders and all persons, if any, who
control any Holder within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, and (b) the fees and expenses of more than
one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign a Registration Statement and each person, if
any, who controls the Company within the meaning of either such Section, and
that all such fees and expenses shall be reimbursed as they are incurred. In the
case of any such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding
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affected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable or any settlement of any proceeding affected
without its written consent if (i) such settlement is entered into more than 30
days after receipt of such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. The
indemnifying party shall not consent to entry of any judgment or enter into any
settlement or otherwise seek to terminate any proceeding in which any
indemnified party is or could be a party and as to which indemnification or
contribution could be sought by such indemnified party under this Section 6,
unless such judgment, settlement or other termination includes as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance satisfactory to the
indemnified party, from all liability in respect of such claim or litigation for
which such indemnified party would be entitled to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under Section 6(a) or 6(b) hereof in respect
of any Losses or is insufficient to hold such indemnified party harmless, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall, jointly and severally, contribute to the amount paid or payable by
such indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or
indemnifying parties, on the one hand, and such indemnified party, on the other
hand, in connection with the actions, statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations. The relative
fault of such indemnifying party or indemnifying parties, on the one hand, and
such indemnified party, on the other hand, shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include any legal or other fees or expenses
incurred by such party in connection with any Proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provision of this Section 6(d), an indemnifying party that
is a selling holder of Registrable Securities shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities sold by such indemnifying party and distributed to
the public
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were offered to the public exceeds the amount of any damages which such
indemnifying 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, contribution and expense reimbursement obligations of the
Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder, under the Purchase Agreement, the Securities Act or
otherwise. The provisions of this Section 6 shall survive so long as Registrable
Securities remain outstanding, notwithstanding any transfer of the Registrable
Securities by any holder or any termination of this Agreement.
7. Information Requirements
(a) The Company shall file in a timely manner the reports required to be
filed by it under the Securities Act and the Exchange Act, and if at any time
the Company is not required to file such reports, it will, upon the request of
any holder of Registrable Securities, make publicly available other information
so long as necessary to permit sales pursuant to Rule 144 and Rule 144A under
the Securities Act. The Company further covenants that it will cooperate with
any holder of Registrable Securities and take such further action as any holder
of Registrable Securities may reasonably request (including without limitation
making such representations as any such holder may reasonably request), all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 144A under the Securities Act.
Upon the request of any holder of Registrable Securities, the Company shall
deliver to such holder a written statement as to whether it has complied with
such filing requirements. Notwithstanding the foregoing, nothing in this Section
7 shall be deemed to require the Company to register any of its securities under
any section of the Exchange Act.
(b) The Company shall file in a timely manner the reports required to be
filed by it under the Exchange Act and shall comply with all other requirements
set forth in the instructions to Form S-3 in order to allow the Company to be
eligible to file registration statements on Form S-3 after July 1, 1996.
8. Miscellaneous
(a) Remedies. In the event of a breach by the Company of its obligations
under this Agreement, each holder of Registrable Securities, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the
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event of any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not, as of the date hereof,
and shall not, on or after the date of this Agreement, enter into any agreement
with respect to its securities which is inconsistent with the rights granted to
the holders of Registrable Securities in this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended (other than the last sentence of
Section 8(g)), 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 the holders of a majority of the then outstanding Common
Stock constituting Registrable Securities (with holders of Notes deemed to be
the holders for purposes of this Section 8(c), of the number of outstanding
shares of Common Stock into which such Notes are then convertible).
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 of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Registrable Securities may be given by holders of at
least a majority of the Registrable Securities being sold by such holders;
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 provided for or permitted
hereunder shall be made in writing and shall be deemed given (i) when made, if
made by hand delivery, (ii) upon confirmation, if made by telecopier or (iii)
one business day after being deposited with a reputable next-day courier,
postage prepaid, to the parties as follows:
(x) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with
the provisions of this Section 8(d); and
(y) if to the Company, to VIVRA Incorporated, 0000 Xxxxxxx Xxxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial
Officer.
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(e) Owner of Registrable Securities. The Company will maintain, or will
cause its registrar and transfer agent to maintain, a register with respect to
the Registrable Securities in which all transfers of Registrable Securities of
which the Company has received notice will be recorded. The Company may deem and
treat the person in whose name
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Registrable Securities are registered in such register of the Company as the
owner thereof for all purposes, including, without limitation, the giving of
notices under this Agreement.
(f) Approval of Holders. Whenever the consent or approval of holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchasers
or subsequent holders of Registrable Securities if such subsequent holders are
deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the holders of such required percentage. For purposes
of calculating the consent or approval of holders of a majority of the then
outstanding aggregate principal amount of Registrable Securities, Registrable
Securities which have been converted into shares of Common Stock shall be deemed
to bear the principal amount at which such securities were converted.
(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 holder of any Registrable Securities. The
Company may not assign its rights or obligations hereunder without the prior
written consent of each holder of any Registrable Securities.
(h) 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.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, 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 which may
be hereafter declared invalid, void or unenforceable.
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(l) Entire Agreement. This 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 the registration rights granted by the
Company with respect to the Notes sold pursuant to the Placement Agreement and
the Common Stock issuable upon conversion of the Notes. Except as provided in
the Placement Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company with respect to the Notes or the
Common Stock issuable upon conversion of the Notes. This Agreement supersedes
all prior agreements and understandings among the parties with respect to such
registration rights.
(m) 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 reasonable attorneys' fees in addition to any other
available remedy.
(n) Further Assurances. Each of the parties hereto shall use all reasonable
efforts to take, or cause to be taken, all appropriate action, do or cause to be
done all things reasonably necessary, proper or advisable under applicable law,
and execute and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement and the other documents contemplated
hereby and consummate and make effective the transactions contemplated hereby.
(o) Termination. This Agreement and the obligations of the parties
hereunder shall terminate at the end of the Effectiveness Period, except for any
liabilities or obligations under Sections 5 or 6 or the proviso of Section 4(k)
above, and the obligations to make payments of and provide for liquidated
damages under Section 3 hereof to the extent such damages accrue prior to the
end of the Effectiveness Period, each of which shall remain in effect in
accordance with their terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
VIVRA INCORPORATED
By: /s/ XxXxxx Xxxxxxx
---------------------------------------
Name: XxXxxx Xxxxxxx
Title: Chief Financial Officer, Treasurer
and Secretary
ALEX. XXXXX & SONS INCORPORATED
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Title: Managing Director
XXXXXXXXXX SECURITIES
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Title: Managing Director
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Title: Managing Director
XXXXX XXXXXX INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------
Title: Managing Director
UBS SECURITIES LLC
By: /s/ Xxxxxx X. XxXxxxx
---------------------------------------
Title: Vice President
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