Exhibit 4.8(b)
Registration Rights Agreement dated as of November 21, 2001 (this "Agreement")
of Telex Communications, Inc., a Delaware corporation (the "Company"), for the
benefit of the holders of the Series B Preferred Stock, par value $0.01 per
share (the "Series B Preferred Stock"), of the Company.
Witnesseth:
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Whereas, the Series B Preferred Stock has been issued by the Company pursuant to
the "Exchange Offer" described in the Amended and Supplemented Consent
Solicitation and Exchange Offering Memorandum dated October 24, 2001
(the "Consent Solicitation and Exchange Offering Memorandum"); and
Whereas, pursuant to the Consent Solicitation and Exchange Offering Memorandum,
the Company has committed to take actions with respect to effecting a
shelf-registration with respect to the Registrable Equity Securities.
Now, therefore, the Company hereby agrees as follows for the benefit of the
holders of Series B Preferred Stock:
1. Definitions.
As used in this Agreement, the following capitalized terms shall have the
following meanings:
"Act": The Securities Act of 1933, as amended.
"Business Day": Any day except a Saturday, Sunday or other day in the City
of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
"Commission": The United States Securities and Exchange Commission.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Holders": As defined in Section 2 hereof.
"Indemnified Holder": As defined in Section 8(a) hereof.
"NASD": National Association of Securities Dealers, Inc.
"Permitted Holders": As such term is used and defined in Waiver, Amendment
No. 5, Agreement, and Consent dated as of the date hereof with respect to
the Credit Agreement dated as of May 6, 1997, as amended and in effect as
of the date hereof, among the Company, JPMorgan Chase Bank (f/k/a The Chase
Manhattan Bank), as Administrative Agent, and the "Lenders" and
"Documentation Agent" described therein.
"Person": An individual, partnership, corporation, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
"Prospectus": The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated
by reference into such Prospectus.
"Registrable Equity Securities": The Series B Preferred Stock and any
shares of Common Stock, par value $0.01 per share, of the Company issuable
upon any conversion of the Series B Preferred Stock.
"Registration Statement": Any registration statement of the Company
relating to the registration for resale of Transfer Restricted Registrable
Equity Securities pursuant to the Shelf Registration Statement (i) which is
filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein.
"Senior Subordinated Notes": The 13% Senior Subordinated Discount Notes due
2006 of the Company.
"Shelf Registration Statement": As defined in Section 4 hereof.
"TIA": The Trust Indenture Act of 1939 as in effect on the date of the
Indenture.
"Transfer Restricted Registrable Equity Securities": Each share of
Registrable Equity Securities, until the earliest to occur of (a) the date
on which such share of Registrable Equity Securities has been disposed of
in accordance with a Shelf Registration Statement, or (b) the date on which
such share of Registrable Equity Securities is distributed to the public
pursuant to Rule 144 under the Act.
"Underwritten Registration" or "Underwritten Offering": A registration in
which securities of the Company are sold to an underwriter for reoffering
to the public.
"Warrants": Warrants issued by the Company as of the date hereof entitling
the holders thereof to purchase shares of the Common Stock, par value $0.01
per share, of the Company.
2. Holders.
A Person is deemed to be a holder of Transfer Restricted Registrable Equity
Securities (each, a "Holder") whenever such Person owns Transfer Restricted
Registrable Equity Securities.
3. [omitted]
4. Shelf Registration.
(a) Shelf Registration Generally. The Company shall (x) cause to be filed
on or prior to 160 days after the date hereof a shelf registration
statement pursuant to Rule 415 under the Act (the "Shelf Registration
Statement")) relating to all Transfer Restricted Registrable Equity
Securities the Holders of which shall have provided the information
required pursuant to Section 4 hereof, and (y) use its best efforts to
cause such Shelf Registration Statement to become effective no later
than 180 days after the date hereof (which 180-day period shall be
extended for a number of days equal to the number of business days, if
any, that the Commission is officially closed during such period). The
Company shall use its best efforts to keep any Shelf Registration
Statement pursuant to this Section 4 continuously effective,
supplemented and amended as required by and subject to the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that
it is available for sales of Transfer Restricted Registrable Equity
Securities by the Holders thereof entitled to the benefit of this
Section 4, and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to
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time, for a period of at least two years (as extended pursuant to
Section 6(c)(i)) following the date on which such Shelf Registration
Statement first becomes effective under the Act (except as otherwise
provided in Section 4(b) hereof) or such shorter period that will
terminate when all Transfer Restricted Registrable Equity Securities
covered by the Shelf Registration Statement have been sold pursuant
thereto. Any Shelf Registration Statement pursuant to this Section 4
may be combined with any "Exchange Offer Registration Statement" or
"Shelf Registration Statement" under the Exchange and Registration
Rights Agreements dated as of the date hereof executed by the Company
for the benefit of the holders of the Senior Subordinated Notes and
Registration Rights Agreements dated as of the date hereof executed by
the Company for the benefit of the holders of the Warrants. The
obligation of the Company to file any post-effective amendment to a
previously filed Shelf Registration Statement shall be suspended if the
Company shall have reasonably determined that the filing thereof would
require the disclosure by the Company of a pending transaction which is
material to the Company, but the Company shall file such post-effective
amendment to a previously filed Shelf Registration Statement promptly
following either the termination or abandonment by the Company of the
transaction or following the public announcement of the transaction.
(b) In addition to the provisions of Section 4(a) hereof, and solely with
respect to Permitted Holders, the Company shall make inquiry of
Permitted Holders at least 30 days, but not more than 45 days, prior to
each fiscal quarter commencing after the effectiveness of the Exchange
Registration Statement or any previously filed Shelf Registration
Statement as to whether Permitted Holders intend to effect sales of
Transfer Restricted Registrable Equity Securities during such fiscal
quarter. If any Permitted Holder advises the Company prior to such
fiscal quarter that the Permitted Holder intends to effect sales of
Transfer Restricted Registrable Equity Securities during such fiscal
quarter, and if the Company determines that the Permitted Holder is an
"affiliate" (as defined under the rules and regulations of the
Commission) of the Company or if the Permitted Holder determines, after
consultation with counsel and with the Company, that it is an affiliate
of the Company (any such Permitted Holder being herein referred to as
an "Affiliate Holder"), and it is determined also that such Affiliate
Holder may not effect sales of Transfer Restricted Registrable Equity
Securities except pursuant to an effective registration statement under
the Act, then the Company shall (i) promptly file a shelf registration
statement pursuant to Rule 415 under the Act (which shall be deemed a
"Shelf Registration Statement" for purposes of this Agreement), unless
a previously filed Shelf Registration Statement or Exchange Offer
Registration Statement is effective and available for use by the
Affiliate Holder to effect sales relating to the Transfer Restricted
Registrable Equity Securities of such Affiliate Holder, and (ii) use
its best efforts to cause such Shelf Registration Statement, or a
post-effective amendment to a previously filed Shelf Registration
Statement or Exchange Offer Registration Statement, to become effective
at the earliest practicable time to permit the Affiliate Holder to
effect sales of the Transfer Restricted Registrable Equity Securities.
However, the obligation of the Company to file any such Shelf
Registration Statement or post-effective amendment to a previously
filed Shelf Registration Statement shall be suspended if the Company
shall have reasonably determined that the filing thereof would require
the disclosure by the Company of a pending transaction which is
material to the Company, but the Company shall file such Shelf
Registration Statement or post-effective amendment to a previously
filed Shelf Registration Statement promptly following either the
termination or abandonment by the Company of the transaction or
following the public announcement of the transaction.
(c) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted
Registrable Equity Securities may include any of its Transfer
Restricted Registrable Equity Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 20 days after
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receipt of a request therefor, such information specified in Item 507
of Regulation S-K under the Act for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included
therein. Each Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially
misleading.
5. [omitted]
6. Registration Procedures.
(a) [omitted]
(b) Shelf Registration Statement. In connection with the Shelf Registration
Statement the Company shall comply with all the provisions of Section
6(c) below and shall use its best efforts to effect such registration
to permit the sale of the Transfer Restricted Registrable Equity
Securities being sold in accordance with the intended method or methods
of distribution thereof (as indicated in the information furnished to
the Company pursuant to Section 4 hereof), and pursuant thereto the
Company will prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under
the Act, which form shall be available for the sale of the Transfer
Restricted Registrable Equity Securities in accordance with the
intended method or methods of distribution thereof within the time
periods and otherwise in accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Registrable Equity Securities, the
Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial
statements for the period specified in Section 3 or Section 4 of
this Agreement, as applicable. Upon the occurrence of any event
that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Registrable Equity Securities
during the period required by this Agreement, the Company shall
file promptly an appropriate amendment to such Registration
Statement, (1) in the case of clause (A), correcting any such
misstatement or omission, and (2) in the case of either clause
(A) or (B), use its best efforts to cause such amendment to be
declared effective and such Registration Statement and the
related Prospectus to become usable for their intended purpose(s)
as soon as practicable thereafter. Notwithstanding the foregoing,
if (A) the Board of Directors of the Company determines in good
faith that it is in the best interests of the Company not to
disclose the existence of or facts surrounding any proposed or
pending material corporate transaction involving the Company or
its subsidiaries and (B) the Company notifies the Holders within
two Business Days after the Board of Directors makes such
determination, the Company may allow the Shelf Registration
Statement to fail to be effective and usable as a result of such
nondisclosure for up to 60 days during the two-year period of
effectiveness required by Section 4 hereof, but in no event for
any period in excess of 30 consecutive days; provided, however,
that the two-year period referred to in Section 4 hereof during
which the Shelf Registration Statement is required to be
effective and usable shall be extended by the number of days
during which such registration statement was not effective or
usable pursuant to the foregoing provisions;
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(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or Section 4 hereof, or
such shorter period as will terminate when all Transfer
Restricted Registrable Equity Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and
to comply fully with Rules 424 and 430A, as applicable, under the
Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders promptly
and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Registrable Equity Securities for offering or sale in
any jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a material
fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by
reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement in order to
make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from
qualification of the Transfer Restricted Registrable Equity
Securities under state securities or Blue Sky laws, the Company
shall use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) use its best efforts to furnish to the Holder, each selling
Holder named in any Registration Statement or Prospectus and each
of the underwriter(s) in connection with such sale, if any,
before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference after the
initial filing of such Registration Statement), prior to filing
and reasonably respond to comments received from such persons,
and make the Company's representatives available for discussion
of such documents and other customary due diligence matters;
(v) [omitted]
(vi) if requested by any selling Holders or the underwriter(s) in
connection with such sale, if any, promptly include in any
Registration Statement or Prospectus, pursuant to a
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supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any,
may reasonably request to have included therein, including,
without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Registrable Equity
Securities, information with respect to the amount of Transfer
Restricted Registrable Equity Securities being sold to such
underwriter(s), the purchase price being paid therefor and any
other terms of the offering of the Transfer Restricted
Registrable Equity Securities to be sold in such offering; and
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after he Company
is notified of the matters reasonably requested to be included in
such Prospectus supplement or post-effective amendment;
(vii) furnish to each selling Holder and each of the underwriter(s) in
connection with such sale, if any, without charge, at least one
copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(viii)deliver to each selling Holder of Transfer Restricted
Registrable Equity Securities and each of the underwriter(s), if
any, without charge, as many copies of the Prospectus (including
each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company
hereby consents to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Registrable Equity Securities covered by the
Prospectus or any amendment or supplement thereto;
(ix) enter into such customary agreements and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Registrable Equity
Securities pursuant to any Registration Statement contemplated by
this Agreement as may be reasonably requested by any Holder of
Transfer Restricted Registrable Equity Securities or underwriter
in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement, and in
such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an
Underwritten Registration, the Company shall:
(A) furnish (or in the case of paragraphs (2) and (3), use its
best efforts to furnish) to each selling Holder and each
underwriter, if any, upon the effectiveness of the Shelf
Registration Statement:
(1) [omitted];
(2) an opinion, dated the date of the date of effectiveness
of the Shelf Registration Statement of counsel for the
Company, covering matters customarily covered in
opinions requested in Underwritten Offerings and dated
the date of effectiveness of the Shelf Registration
Statement; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement, from
the Company's independent accountants, in the customary
form and covering matters of the type customarily
covered in comfort letters to underwriters in connection
with Underwritten Offerings, without exception;
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(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale
or resale pursuant to any Shelf Registration Statement the
indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to
said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by the selling Holders or the
underwriter(s), if any, to evidence compliance with clause
(A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company pursuant to this clause (ix).
The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent
required thereunder, and if at any time the representations
and warranties of the Company contemplated in clause (A)(1)
above cease to be true and correct, the Company shall so
advise the underwriter(s), if any, and selling Holders
promptly and if requested by such Persons, shall confirm such
advice in writing;
(x) prior to any public offering of Transfer Restricted Registrable
Equity Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Registrable Equity Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s), if any, may request and do any and all
other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Registrable Equity Securities covered by the applicable
Registration Statement; provided, however, that the Company shall
not be required to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now
so subject;
(xi) [omitted]
(xii) in connection with any sale of Transfer Restricted Registrable
Equity Securities that will result in such securities no longer
being Transfer Restricted Registrable Equity Securities,
cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Registrable Equity
Securities to be sold and not bearing any restrictive legends;
and to register such Transfer Restricted Registrable Equity
Securities in such denominations and such names as the Holders or
the underwriter(s), if any, may request at least two Business
Days prior to such sale of Transfer Restricted Registrable Equity
Securities;
(xiii)use its best efforts to cause the disposition of the Transfer
Restricted Registrable Equity Securities covered by the
Registration Statement to be registered with or approved by such
other United States governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Registrable Equity Securities, subject to the
proviso contained in clause (x) above;
(xiv) subject to Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare
a supplement or post-effective amendment to the
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Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the holders of
Transfer Restricted Registrable Equity Securities, the Prospectus
will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(xv) provide a CUSIP number for all Transfer Restricted Registrable
Equity Securities not later than the effective date of a
Registration Statement covering such Transfer Restricted
Registrable Equity Securities and provide the Trustee under the
Indenture with printed certificates for Transfer Restricted
Registrable Equity Securities which are in a form eligible for
deposit with the Depository Trust Company;
(xvi) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by
any underwriter that is required to be retained in accordance
with the rules and regulations of the NASD, and use its best
efforts to cause such Registration Statement to become effective
and approved by such governmental agencies or authorities as may
be necessary to enable the Holders selling Transfer Restricted
Registrable Equity Securities to consummate the disposition of
such Transfer Restricted Registrable Equity Securities;
(xvii)otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which
need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such
term is defined in paragraph (c) of Rule 158 under the Act);
(xviii) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith,
cooperate with the Trustee and the Holders of Registrable Equity
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 its best efforts to
cause the Trustee to execute, all documents that may be required
to effect such changes and all other forms and documents required
to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner; and
(xix) provide promptly to each Holder upon request each document filed
with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Registrable Equity Securities that, upon receipt of
the notice referred to in Section 6(c)(i) or any notice from the
Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition
of Transfer Restricted Registrable Equity Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xiv) hereof, or until it is advised in writing by the
Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus (the "Advice"). If so directed by the
Company, each Holder will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer
Restricted Registrable Equity
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Securities that was current at the time of receipt of either such
notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of such Registration Statement set
forth in Section 3 or Section 4 hereof, as applicable, shall be
extended by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 6(c)(i) or
Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xiv) hereof or shall have received the Advice.
7. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether
a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses
(including filings made with the NASD and counsel fees in connection
therewith); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all fees and
disbursements of counsel for the Company and, in accordance with
Section 7(b) below, the Holders of Transfer Restricted Registrable
Equity Securities; and (iv) all fees and disbursements of independent
certified public accountants of the Company (including the expenses of
any special audit and comfort letters required by or incident to such
performance). The Company will, in any event, bear its internal
expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company.
(b) The Company will reimburse the Holders of Transfer Restricted
Registrable Equity Securities the distribution of which is being
registered pursuant to the Shelf Registration Statement for the
reasonable fees and disbursements of not more than one counsel chosen
by the Holders of a majority of the Transfer Restricted Registrable
Equity Securities, which counsel shall be satisfactory to the Company
in its sole discretion.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i) each Holder and
(ii) each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) any Holder (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
Holder or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified
Holder"), from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement or Prospectus (or any amendment or supplement thereto), or
caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages, liabilities
or judgments (i) are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
any of the Holders furnished in writing to the Company by any of the
Holders expressly for use therein, (ii) with respect to the preliminary
prospectus, result from the fact that the Holder sold Transfer
Restricted Registrable Equity Securities to a person to whom there was
not sent or given, at or prior to the written confirmation of such
sale, a copy of the prospectus, as amended or supplemented, if the
Company shall have previously furnished copies thereof to the Holder in
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accordance with this Agreement and the prospectus, as amended or
supplemented, would have corrected such untrue statement or omission or
(iii) are a result of the use by the Indemnified Holder of any
prospectus, when, upon receipt of a notice from the Company of the
existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof contemplated by the last paragraph of Section 6 hereof, the
Indemnified Holder was not permitted to do so.
In case any action or proceeding shall be brought against any of the
Indemnified Holders with respect to which indemnity may be sought
against the Company, such Indemnified Holder (or the Indemnified Holder
controlled by such controlling person) shall promptly notify the
Company in writing (provided, that the failure to give such notice
shall not relieve the Company of its obligations pursuant to this
Agreement). Such Indemnified Holder shall have the right to employ its
own counsel in any such action but the fees and expenses of such
counsel shall be at the expense of the Indemnified Holder or such
controlling person unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel or
(iii) the named parties to any such action (including any impleaded
parties) include both the Indemnified Holder or such controlling person
and the Company and the Indemnified Holder or such controlling person
shall have been advised in writing by such counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the Company (in which case the Company
shall not have the right to assume the defense of such action on behalf
of the Indemnified Holder or such controlling person), it being
understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for such
Indemnified Holders, which firm shall be designated by the Holders and
be reasonably satisfactory to the Company. The Company shall not be
liable for any settlement of any such action or proceeding effected
without the Company's prior written consent, which consent shall not be
withheld unreasonably, but if settled with the Company's written
consent, and the Company agrees to indemnify and hold harmless any
Indemnified Holder from and against any loss or liability by reason of
such settlement. The Company shall not, without the prior written
consent of each Indemnified Holder effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Holder is
or could have been a party and indemnity could have been sought
hereunder by such Indemnified Holder, unless such settlement includes
an unconditional release of such Indemnified Holder from all liability
on claims that are the subject matter of such proceeding.
(b) Each Holder of Transfer Restricted Registrable Equity Securities
agrees, severally and not jointly, to indemnify and hold harmless the
Company, and its directors, officers, and any person controlling the
Company (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each of the Indemnified Holders, but only with respect
to information relating to such Holder furnished in writing by such
Holder expressly for use in any Registration Statement. In case any
action or proceeding shall be brought against the Company or its
directors or officers or any such controlling person in respect of
which indemnity may be sought against a Holder of Transfer Restricted
Registrable Equity Securities, such Holder shall have the rights and
duties given the Company and the Company or its directors or officers
or such controlling person shall have the rights and duties given to
each Holder by the preceding paragraph. In no event shall the liability
of any selling Holder hereunder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the
Transfer Restricted Registrable Equity Securities giving rise to such
indemnification obligation.
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(c) If the indemnification provided for in this Section 8 is unavailable to
an indemnified party under Section 8(a) or Section 8(b) hereof (other
than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or judgments referred to
therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Holders on the other hand from their sale of
Transfer Restricted Registrable Equity Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and of the Indemnified Holder on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative fault of the
Company on the one hand and of the Indemnified Holder 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
to state a material fact relates to information supplied by the Company
or by the Indemnified Holder and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and judgments
referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a), any
legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company and each Holder of Transfer Restricted Registrable Equity
Securities agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) were determined by pro rata
allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Xxxxxxx 0, xxxx of the Holders
(and its related Indemnified Holders) shall be required to contribute,
in the aggregate, any amount in excess of the amount by which the
dollar amount of proceeds received by such Holder upon the sale of
Transfer Restricted Registrable Equity Securities exceeds the amount of
any damages which such Holder 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to
this Section 8(c) are several in proportion to the respective amount of
Registrable Equity Securities held by each of the Holders hereunder and
not joint.
9. Rule 144.
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Registrable Equity Securities remain outstanding and during any
period in which the Company is subject to Section 13 or 15(d) of the
Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to
Rule 144.
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10. Underwritten Registrations
No Holder may participate in any Underwritten Registration hereunder unless
such Holder (a) agrees to sell such Holder's Transfer Restricted
Registrable Equity Securities on the basis provided in customary
underwriting arrangements entered into in connection therewith and (b)
completes and executes all reasonable questionnaires, powers of attorney,
lock-up letters and other documents required under the terms of such
underwriting arrangements. The Company shall have no obligation to effect
any Registration Statement as an Underwritten Registration.
11. Selection of Underwriters.
For any Underwritten Offering, the investment banker or investment bankers
and manager or managers for any Underwritten Offering that will administer
such offering will be selected by the Company. Such investment bankers and
managers are referred to herein as the "underwriters."
12. Miscellaneous.
(a) Remedies. Each Holder, in addition to being entitled to exercise all
rights provided herein, in the Indenture or granted by law, including
recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to
waive the defense in any action for specific performance that a remedy
at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the date
of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders
in this Agreement or otherwise conflicts with the provisions hereof.
The Company has not previously entered into any agreement granting any
registration rights with respect to its securities to any Person, other
than those rights existing by virtue of the Exchange and Registration
Rights Agreements dated as of the date hereof executed by the Company
for the benefit of the holders of the Senior Subordinated Notes and
Registration Rights Agreements dated as of the date hereof executed by
the Company for the benefit of the holders of the Warrants. The rights
granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the
Company's securities under any agreement in effect on the date hereof.
(c) [omitted]
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of the Holders of a majority
of the outstanding Transfer Restricted Registrable Equity Securities.
(e) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier,
or air courier guaranteeing overnight delivery:
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If to a Holder:
--------------
At the address set forth on the records of the Registrar for the
Registrable Equity Securities, with a copy to such Registrar.
If to the Company: With a copy to:
----------------- --------------
Telex Communications, Inc. Dechert
00000 Xxxxxxxx Xxxxxx 00 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx Attention: Xxxxxx X. Xxxxxx
Vice President and
Chief Financial Officer
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, if telecopied; and on the next
business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the Company and the
initial Holders of Transfer Restricted Registrable Equity Securities;
provided, however, that this Agreement shall not inure to the benefit
of or be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign acquired Transfer Restricted
Registrable Equity Securities directly from such Holder at a time when
such Holder could not transfer such Transfer Restricted Registrable
Equity Securities pursuant to a Shelf Registration Statement.
(g) Counterparts.This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to
the conflict of law rules thereof.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
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(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein with respect to the registration rights
granted by the Company with respect to the Transfer Restricted
Registrable Equity Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such
subject matter.
* * *
In witness whereof, the Company has executed this Agreement as of the date first
written above.
Telex Communications, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President and Chief Financial Officer
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