EXHIBIT 4.8
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 26, 2002
AMONG
PERKINELMER, INC.
(A MASSACHUSETTS CORPORATION),
AND
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED,
BANC OF AMERICA SECURITIES LLC
AND
XX XXXXX SECURITIES CORPORATION
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TABLE OF CONTENTS
PAGE
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1. Definitions................................................... 1
2. Registration Under the 1933 Act............................... 5
2.1 Exchange Offer ...................................... 5
2.2 Shelf Registration................................... 8
2.3 Expenses............................................. 10
2.4. Effectiveness........................................ 10
2.5 Liquidated Damages................................... 10
3. Registration Procedures....................................... 12
4. Indemnification; Contribution................................. 20
5. Miscellaneous................................................. 24
5.1 Rule 144 and Rule 144A .............................. 24
5.2 No Inconsistent Agreements .......................... 25
5.3 Release of Guarantors ............................... 25
5.4 Amendments and Waivers .............................. 25
5.5 Notices.............................................. 25
5.6 Successor and Assigns ............................... 26
5.7 Third Party Beneficiaries ........................... 26
5.8. Specific Enforcement................................. 26
5.9 Restriction on Resales .............................. 26
5.10 Counterparts......................................... 27
5.11 Headings............................................. 27
5.12 GOVERNING LAW ....................................... 27
5.13 Severability......................................... 27
i
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into this of December 26, 2002, among PerkinElmer, Inc., a
Massachusetts corporation (the "Company"), Applied Surface Technology, Inc., a
California corporation, CCS Packard, Inc., a California corporation, Xxxx
Consumable Products, LLC, a Delaware limited liability company, Lumen
Technologies, Inc., a Delaware corporation, NEN Life Sciences, Inc., a Delaware
corporation, Packard Bioscience Company, a Delaware corporation, Packard
Instrument Company, Inc., a Delaware corporation, PerkinElmer Instruments LLC, a
Delaware limited liability company, PerkinElmer Labworks, Inc., a Delaware
corporation, PerkinElmer Life Sciences, Inc., a Delaware corporation,
PerkinElmer Optoelectronics NC, Inc., a Delaware corporation, PerkinElmer
Optoelectronics SC, Inc., a Delaware corporation, PerkinElmer Holdings, Inc., a
Massachusetts corporation and PerkinElmer Automotive Research, Inc. a Texas
corporation and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Banc of
America Securities LLC and XX Xxxxx Securities Corporation (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement,
dated December 13, 2002, among the Company, the Guarantors and the Initial
Purchasers (the "Purchase Agreement"), which provides for (i) the sale by the
Company to the Initial Purchasers of an aggregate of $300 million principal
amount of the Company's 8 7/8% Senior Subordinated Notes due 2013 (the
"Securities") and (ii) the issue and sale by the Guarantors and the purchase by
the Initial Purchasers of the guarantees (the "Guarantees") of the Company's
obligations under the Securities. In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company and the Guarantors have agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company and the Guarantors, provided,
however, that such depositary must have an address in the Borough of
Manhattan, in the City of New York.
"Effective Time" shall mean (i) in the case of an Exchange
Offer Registration Statement, the time and date as of which the SEC
shall declare the Exchange Offer Registration Statement effective or as
of which the Exchange Offer Registration Statement otherwise becomes
effective, and (ii) in the case of a Shelf Registration Statement, the
time and date as of which the SEC declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement
otherwise becomes effective.
"Exchange Offer" shall mean the exchange offer by the Company
and the Guarantors of Exchange Securities (and related Guarantees) for
Registrable Securities pursuant to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form or on any successor form used for substantially the
same transactions), and all amendments and supplements to such
registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section
2.1 hereof.
"Exchange Securities" shall mean, collectively, the 8 7/8%
Senior Subordinated Notes due 2013, issued by the Company under the
Indenture and the related guarantees issued by the Guarantors under the
Indenture, containing terms identical in all material respects to the
Securities and the Guarantees (except, for purposes of this clause, for
references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of
Securities and Guarantees in exchange for Registrable Securities
pursuant to the Exchange Offer.
"Guarantors" shall have the meaning set forth in the preamble
and shall also include the Guarantors' successors.
"Holder" shall mean an Initial Purchaser, for so long as it
owns any Registrable Securities, and each of its successors, assigns
and direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
"Indenture" shall mean the Indenture relating to the
Securities and the Guarantees, dated as of December 26, 2002, among the
Company, the Guarantors and State Street
REVISED PKI Registration Rights Agreement
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Bank and Trust Company, as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the
meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided that whenever the consent or approval
of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company, the
Guarantors and other obligors on the Securities or Guarantees or any
Affiliate (as defined in the Indenture) of the Company or any Guarantor
shall be disregarded in determining whether such consent or approval
was given by the Holders of such required percentage amount.
"Participating Broker-Dealer" shall mean any of Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Banc of America Securities LLC, XX
Xxxxx Securities Corporation and any other broker-dealer which makes a
market in the Securities and Guarantees and exchanges Registrable
Securities in the Exchange Offer for Exchange Securities.
"Person" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section
2.1 hereof.
"Private Exchange Securities" shall have the meaning set forth
in Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including any such prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other amendments
and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean, collectively, the
Securities, the Guarantees, and, if issued, the Private Exchange
Securities; provided, however, that Securities, Guarantees and, if
issued, the Private Exchange Securities, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such
Securities and Guarantees shall have been declared effective under the
1933 Act and such Securities and Guarantees shall have been disposed of
pursuant to such Registration Statement, (ii) such Securities and
Guarantees have been sold to the public pursuant to Rule 144 (or any
similar provision then in force, but not Rule 144A) under the 1933 Act,
(iii) such
REVISED PKI Registration Rights Agreement
3
Securities and Guarantees shall have ceased to be outstanding or (iv)
the Exchange Offer is consummated (except, for purposes of this clause,
in the case of Securities and Guarantees purchased from the Company and
the Guarantors and continued to be held by the Initial Purchasers or
Securities which may not be exchanged in the Exchange Offer).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company and the
Guarantors with this Agreement, including without limitation: (i) all
SEC, stock exchange or National Association of Securities Dealers, Inc.
(the "NASD") registration and filing fees, including, if applicable,
the fees and expenses of any "qualified independent underwriter" (and
its counsel) that is required to be retained by any holder of
Registrable Securities in accordance with the rules and regulations of
the NASD, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with
the rules of the NASD (including reasonable fees and disbursements of
outside counsel for any underwriters or Holders in connection with blue
sky qualification of any of the Exchange Securities or Registrable
Securities and any filings with the NASD), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus,
any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all fees and
expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (v) all
rating agency fees, (vi) the fees and disbursements of counsel for the
Company and the Guarantors and of the independent public accountants of
the Company and the Guarantors, including the expenses of any special
audits or "cold comfort" letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the Trustee,
and any escrow agent or custodian, (viii) the reasonable fees and
expenses of the Initial Purchasers in connection with the Exchange
Offer, including the reasonable fees and expenses of outside counsel to
the Initial Purchasers in connection therewith, if any, (ix) the
reasonable fees and disbursements of special counsel representing the
Holders of Registrable Securities and (x) any reasonable fees and
disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the fees and expenses of any
special experts retained by the Company and the Guarantors in
connection with any Registration Statement, but excluding underwriting
discounts and commissions and transfer taxes, if any, relating to the
sale or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration
statement of the Company and the Guarantors which covers any of the
Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
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"Shelf Registration" shall mean a registration effected
pursuant to Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Guarantors pursuant to
the provisions of Section 2.2 of this Agreement which covers all of the
Registrable Securities or all of the Private Exchange Securities on an
appropriate form under Rule 415 under the 1933 Act, or any successor or
similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"Trustee" shall mean the trustee with respect to the
Securities and the Guarantees under the Indenture.
2. Registration Under the 0000 Xxx.
2.1 Exchange Offer. The Company and the Guarantors shall,
for the benefit of the Holders, at the Company's cost, (A) prepare and, as soon
as practicable but not later than 105 days following the Closing Date, file with
the SEC an Exchange Offer Registration Statement on an appropriate form under
the 1933 Act with respect to a proposed Exchange Offer and the issuance and
delivery to the Holders, in exchange for the Registrable Securities (other than
Private Exchange Securities), of a like principal amount of Exchange Securities,
(B) use its reasonable best efforts to cause the Exchange Offer Registration
Statement to be declared effective under the 1933 Act within 195 days of the
Closing Date, (C) use its reasonable best efforts to keep the Exchange Offer
Registration Statement effective until the closing of the Exchange Offer and (D)
use its reasonable best efforts to cause the Exchange Offer to be consummated
not later than 240 days following the Closing Date. The Exchange Securities will
be issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder (a) is not an affiliate of the Company or
any of the Guarantors within the meaning of Rule 405 under the 1933 Act, (b) is
not a broker-dealer tendering Registrable Securities acquired directly from the
Company or any of the Guarantors for its own account, (c) acquired or will
acquire the Exchange Securities in the ordinary course of such Holder's business
and (d) has no arrangements or understandings with any Person to participate in
the Exchange Offer for the purpose of distributing the Exchange Securities) to
transfer such Exchange Securities from and after their receipt without any
limitations or restrictions under the 1933 Act and under state securities or
blue sky laws.
In connection with the Exchange Offer, the Company and the
Guarantors shall:
(a) mail, as promptly as practicable, to each Holder a
copy of the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and related
documents;
REVISED PKI Registration Rights Agreement
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(b) keep the Exchange Offer open for acceptance for a
period of not less than 30 calendar days after the date notice thereof is mailed
to the Holders (or longer if required by applicable law) (such period being
referred to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the
Exchange Offer;
(d) permit Holders to withdraw tendered Registrable
Securities at any time prior to 500 p.m. (Eastern Time), on the last business
day of the Exchange Period, by sending to the institution specified in the
notice, a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities delivered
for exchange, and a statement that such Holder is withdrawing such Holder's
election to have such Securities and Guarantees exchanged;
(e) prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the SEC (A) stating
that the Company is conducting the Exchange Offer in reliance on the position of
the SEC in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Xxxxxx
Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Shearman & Sterling (pub.
avail. July 2, 1993); and (B) including a representation that the Company has
not entered into any arrangement or understanding with any Person to distribute
the Exchange Securities to be received in the Exchange Offer and that, to the
best of the Company's information and belief, each Holder participating in the
Exchange Offer is acquiring the Exchange Securities in the ordinary course of
business and has no arrangement or understanding with any Person to participate
in the distribution of the Exchange Securities;
(f) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, any of the
Initial Purchasers hold any Securities acquired by them and having the status of
an unsold allotment in the initial distribution, the Company upon the request of
any such Initial Purchaser shall, simultaneously with the delivery of the
Exchange Securities in the Exchange Offer, issue and deliver to such Initial
Purchaser, in exchange (the "Private Exchange") for the Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company on
a senior subordinated basis, guaranteed by the Guarantors, that are identical
(except that such securities shall bear appropriate transfer restrictions) to
the Exchange Securities (the "Private Exchange Securities").
The Exchange Securities and the Private Exchange Securities
shall be issued under (i) the Indenture or (ii) an indenture identical in all
material respects to the Indenture and which, in either case, has been qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from
such qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture but that the
Private Exchange Securities shall be subject to such transfer restrictions. The
Indenture or such indenture shall provide that the Exchange Securities, the
Private Exchange Securities and the Securities (and related Guarantees) shall
vote and consent together on all matters as one class and that none of the
Exchange Securities, the Private Exchange Securities or the Securities (and
related Guarantees) will have the right to vote or consent as a separate class
on any matter. The Private
REVISED PKI Registration Rights Agreement
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Exchange Securities shall be of the same series as the Exchange Securities and
the Company and the Guarantors shall seek to cause the CUSIP Service Bureau to
issue the same CUSIP numbers for the Private Exchange Securities as for the
Exchange Securities. Neither the Company nor any Guarantor shall have any
liability hereunder solely as a result of such Private Exchange Securities not
bearing the same CUSIP number as the Exchange Securities.
As soon as practicable after the close of the Exchange Offer
and/or the Private Exchange, as the case may be, the Company and the Guarantors
shall:
(i) accept for exchange all Registrable
Securities duly tendered and not validly withdrawn pursuant to
the Exchange Offer in accordance with the terms of the
Exchange Offer Registration Statement and the letter of
transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities properly
tendered pursuant to the Private Exchange;
(iii) deliver to the Trustee for cancellation all
Registrable Securities so accepted for exchange; and
(iv) cause the Trustee promptly to authenticate
and deliver Exchange Securities or Private Exchange
Securities, as the case may be, to each Holder of Registrable
Securities so accepted for exchange in a principal amount
equal to the principal amount of the Registrable Securities of
such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange
Security will accrue from the last date on which interest was paid on the
Registrable Securities surrendered in exchange therefor or, if no interest has
been paid on the Registrable Securities, from the date of original issuance. The
Exchange Offer and the Private Exchange shall not be subject to any conditions,
other than (i) that the Exchange Offer or the Private Exchange, or the making of
any exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer and the Private Exchange, (iii)
that each Holder of Registrable Securities exchanged in the Exchange Offer shall
have represented that all Exchange Securities to be received by it shall be
acquired in the ordinary course of its business and that at the time of the
consummation of the Exchange Offer it shall have no arrangement or understanding
with any person to participate in the distribution (within the meaning of the
0000 Xxx) of the Exchange Securities and shall have made such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer or the Private
Exchange which, in the Company's and the Guarantors' judgment, would reasonably
be expected to impair the ability of the Company and the Guarantors to proceed
with the Exchange Offer or the Private Exchange.
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2.2 Shelf Registration. (i) If, because of any changes in
law, SEC rules or regulations or applicable interpretations thereof by the
staff of the SEC, the Company or the Guarantors are not permitted to effect the
Exchange Offer as contemplated by Section 2.1 hereof, (ii) if for any other
reason the Exchange Offer Registration Statement is not declared effective
within 195 days following the original issue of the Registrable Securities or
the Exchange Offer is not consummated within 240 days after the original issue
of the Registrable Securities, (iii) if any Initial Purchaser so requests with
respect to Securities that are not eligible to be exchanged for Exchange
Securities in the Exchange Offer and that are held by it following consummation
of the Exchange Offer, (iv) if any Holder (other than an Initial Purchaser) is
not eligible to participate in the Exchange Offer or does not receive freely
tradeable Exchange Securities in the Exchange Offer other than by reason of
such Holder being an Affiliate of the Company, or (v) if any Initial Purchaser
participates in the Exchange Offer or acquires Exchange Securities pursuant to
Section 2 hereof but does not receive freely tradeable Exchange Securities in
exchange for Securities constituting any portion of an unsold allotment (it
being understood that (x) the requirement that an Initial Purchaser deliver a
Prospectus containing the information required by Item 507 or 508 of Regulation
S-K under the 1933 Act in connection with sales of Exchange Securities acquired
in exchange for such Securities shall result in such Exchange Securities being
not "freely tradeable," and (y) the requirement that a Participating
Broker-Dealer deliver a Prospectus in connection with sales of Exchange
Securities acquired in the Exchange Offer in exchange for Securities acquired
as a result of market-making activities or other trading activities shall not
result in such Exchange Securities being not "freely tradeable"), then the
Company and the Guarantors shall effect a Shelf Registration Statement as
follows:
(a) As promptly as practicable, but in no event
after the later of (1) 105 days after the day the Securities
were originally issued and (2) 90 days after becoming required
to do so as described above, the Company and Guarantors shall
file with the SEC a Shelf Registration Statement relating to
the offer and sale of the Registrable Securities by the
Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders participating in
the Shelf Registration and set forth in such Shelf
Registration Statement, provided that if the Company has not
consummated the Exchange Offer within 240 days of the date the
Securities were originally issued, then the Company will file
the Shelf Registration Statement with the SEC on or prior to
the 270th day after the date the Securities were originally
issued.
(b) The Company and Guarantors will use their
reasonable best efforts to cause the Shelf Registration
Statement to be declared effective under the Securities Act by
the 90th day after the Shelf Registration Statement is
initially filed with the SEC.
(c) The Company and the Guarantors will use
their reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders from
the date the Shelf Registration Statement is declared
effective by the SEC until the earlier of (i) such date as all
of the Securities covered by the Shelf Registration Statement
have been sold or cease to be outstanding or (ii) the date on
which all of
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the Securities held by persons that are not Affiliates of
Company may be resold without registration pursuant to Rule
144(k) under the 1933 Act (the "Effectiveness Period").
(d) Notwithstanding any other provisions hereof,
the Company and the Guarantors will use their reasonable best
efforts to ensure that (i) any Shelf Registration Statement
and any amendment thereto and any Prospectus forming part
thereof and any supplement thereto complies in all material
respects with the 1933 Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any
Prospectus forming part of any Shelf Registration Statement,
and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements, in light of the
circumstances under which they were made, not misleading.
(e) In the event of a Shelf Registration
Statement, in addition to the information required to be
provided in the Notice and Questionnaire (defined below), the
Company may require Holders to furnish to the Company
additional information regarding such Holder and such Holder's
intended method of distribution of Securities as may be
required in order to comply with the 1933 Act. Each Holder
agrees to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by
such Holder to the Company or of the occurrence of any event
in either case as a result of which any Prospectus relating to
the Shelf Registration Statement contains or would contain an
untrue statement of a material fact regarding such Holder or
such Holder's intended method of disposition of such
Securities or omits to state any material fact regarding such
Holder or such Holder's intended method of disposition of such
Securities required to be stated therein or necessary to make
the statement therein not misleading in light of the
circumstances then existing, and promptly to furnish to the
Company any additional information required so that such
Prospectus shall not contain, with respect to such Holder or
the disposition of such Securities, an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing.
(f) Notwithstanding the foregoing, upon the
consummation of the Exchange Offer, the obligations of the
Company and the Guarantors to effect a Shelf Registration
Statement pursuant to Sections 2.2(a) to (e) as a result of
the effect of Section 2.2(i) or Section 2.2(ii) shall be
terminated and neither the Company nor any Guarantor shall
have any other obligations under this Agreement with respect
to such Shelf Registration Statement.
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The Company and the Guarantors shall not permit any securities
other than Registrable Securities to be included in the Shelf Registration
Statement. The Company and the Guarantors further agree, if necessary, to
supplement or amend the Shelf Registration Statement, as required by Section
3(b) below, and to furnish to the Holders of Registrable Securities copies of
any such supplement or amendment promptly after its being used or filed with the
SEC.
2.3 Expenses. The Company and the Guarantors shall pay
all Registration Expenses in connection with the registration pursuant to
Section 2.1 or 2.2. Each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
2.4. Effectiveness. (a) The Company and the Guarantors
will be deemed not to have used their reasonable best efforts to cause the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, to become, or to remain, effective during the requisite period
if the Company or any Guarantor, with knowledge of the consequences thereof
pursuant to this paragraph (a), voluntarily takes any action that would, or
omits to take any action which omission would, result in any such Registration
Statement not being declared or remaining effective or in the Holders of
Registrable Securities covered thereby not being able to exchange or offer and
sell such Registrable Securities during that period as and to the extent
contemplated hereby, unless (i) such action or omission is required by
applicable law, or (ii) such action is taken by the Company in good faith and
for valid business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so long as the
Company promptly thereafter complies with the requirements of Section 3(e)
hereof, if applicable.
(b) An Exchange Offer Registration Statement pursuant to
Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have become effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
2.5 Liquidated Damages. The Company, the Initial
Purchasers and each Holder of Registrable Securities agree by acquisition of
such Securities that the Holders of Registrable Securities will suffer damages
if a registration default (as described in paragraphs (a)(i), (a)(ii), (a)(iii)
and (b) below (each of such events, a "Registration Default")) occurs and that
it would not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company, the Guarantors, the Initial Purchasers and each Holder
of Registrable Securities agree that the following liquidated damages
("Liquidated Damages") with respect to the Securities shall be assessed if a
Registration Default occurs and is continuing, as provided below:
(a) If (i) the Exchange Offer Registration Statement is
not filed with the SEC on or prior to the 105th calendar day following the date
of original issue of the Securities and the
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Guarantees, or (ii) the Exchange Offer Registration Statement has not been
declared effective on or prior to the 195th calendar day following the date of
original issue of the Securities and the Guarantees, or (iii) the Exchange Offer
is not consummated or a Shelf Registration Statement is not declared effective,
in either case, on or prior to the 240th calendar day following the date of
original issue of the Securities, then Liquidated Damages shall accrue on the
Securities, over and above the interest set forth in the title of the
Securities, from and including the date after the date on which the Registration
Default shall occur to, but excluding, the date on which all Registration
Defaults shall have been cured, at a rate of 0.25% per annum of the principal
amount of the Securities (the "Liquidated Damages Rate"). The Liquidated Damages
Rate shall increase by an additional 0.25% per annum of the principal amount of
the Securities for each subsequent 90-day period (or portion thereof) until all
Registration Defaults have been cured, up to a maximum aggregate Liquidated
Damages Rate of 1.0% per annum.
(b) If, after the Shelf Registration Statement becomes
effective, the Shelf Registration Statement is unusable by the Holders for any
reason, and the aggregate number of days in any consecutive twelve-month period
for which the Shelf Registration Statement shall not be usable exceeds 30 days
in the aggregate, then Liquidated Damages shall accrue at the Liquidated Damages
Rate beginning on the 31st day that such Shelf Registration Statement ceases to
be usable. The Liquidated Damages Rate shall increase by an additional 0.25% per
annum of the principal amount of the Securities for each subsequent 90-day
period (or portion thereof) that the Shelf Registration Statement remains
unusable until the date on which the Shelf Registration Statement once again
becomes usable, up to a maximum aggregate Liquidated Damages Rate of 1.0% per
annum. Liquidated Damages shall be computed based on the actual number of days
elapsed in each 90-day period in which the Shelf Registration Statement is
unusable.
(c) Following the cure of all Registration Defaults the
accrual of Liquidated Damages will cease and the interest rate will revert to
the original rate. In no event shall the aggregate Liquidate Damages Rate exceed
1.0% per annum.
(d) The Liquidated Damages as set forth in this Section
2.5 shall be the exclusive remedy with respect to damages of the Initial
Purchasers and each Holder of Registrable Securities for any Registration
Defaults (but shall not preclude the Initial Purchasers and each Holder from
seeking specific performance or other equitable remedies).
(e) Each registration default (as described in paragraphs
(a)(i), (a)(ii), (a)(iii) and (b) above) shall constitute a Registration Default
whatever the reason for any such event and whether it is voluntary or
involuntary or is beyond the control of the Company or pursuant to operation of
law or as a result of any action or inaction by the SEC.
(f) Liquidated Damages shall be paid by depositing with
the Trustee, in trust, for the benefit of the Holders of Registrable Securities,
on or before the applicable semiannual interest payment date, immediately
available funds in sums sufficient to pay the Liquidated Damages then due. The
Liquidated Damages due shall be payable on each interest payment date to the
record Holder of Securities entitled to receive the interest payment to be paid
on such date as set forth in the Indenture. Each obligation to pay Liquidated
Damages shall be deemed to accrue from and including the day following the
applicable Registration Default.
REVISED PKI Registration Rights Agreement
11
3. Registration Procedures In connection with the
obligations of the Company and the Guarantors with respect to Registration
Statements pursuant to Sections 2.1 and 2.2 hereof, the Company and the
Guarantors shall:
(a) prepare and file with the SEC a Registration
Statement, within the relevant time period specified in Section 2, on the
appropriate form under the 1933 Act, which form (i) shall be selected by the
Company and the Guarantors, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling Holders
thereof, (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by reference all
financial statements required by the SEC to be filed therewith or incorporated
by reference therein, and (iv) shall comply in all respects with the
requirements of Regulation S-T under the 1933 Act, and use their reasonable best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for the
applicable period; and cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the 1933 Act and comply with the
provisions of the 1933 Act, the 1934 Act and the rules and regulations
thereunder applicable to them with respect to the disposition of all securities
covered by each Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the selling
Holders thereof (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five business days prior to filing,
that a Shelf Registration Statement with respect to the Registrable Securities
is being filed and advising such Holders that the distribution of Registrable
Securities will be made in accordance with the method selected by the Majority
Holders participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto as such Holder may reasonably request and such other
documents as such Holder or underwriter may reasonably request, including
financial statements and schedules and, if the Holder so requests, all exhibits
in order to facilitate the public sale or other disposition of the Registrable
Securities; and (iii) hereby consent, subject to the provisions of Section 3(e),
to the use of the Prospectus or any 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 the Prospectus or any
amendment or supplement thereto;
(d) use their reasonable best efforts to register or
qualify, if necessary, the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably request by the
time the applicable Registration Statement is declared effective by the SEC, and
do any and all other acts and things which may be reasonably necessary to enable
each such Holder and underwriter to
REVISED PKI Registration Rights Agreement
12
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that neither the Company nor
any of the Guarantors shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), or (ii) take any
action which would subject it to general service of process or taxation in any
such jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities
under a Shelf Registration or any Participating Broker-Dealer who has notified
the Company and the Guarantors that it is utilizing the Exchange Offer
Registration Statement as provided in paragraph (f) below and, if requested by
such Holder or Participating Broker-Dealer, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for post-effective
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) upon becoming aware of the happening
of any event or the discovery of any facts during the period a Shelf
Registration Statement is effective which makes any statement made in such
Registration Statement or the related Prospectus untrue in any material respect
or which requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading, (v) of the
receipt by the Company or any Guarantor of any notification with respect to the
suspension of the qualification of the Registrable Securities or the Exchange
Securities, as the case may be, for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (vi) of any determination
by the Company or any Guarantor that a post-effective amendment to such
Registration Statement would be appropriate;
Each Holder of Securities agrees by acquisition of such
Securities that, upon actual receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e) (ii) through (vi)
hereof, such Holder will forthwith discontinue any and all dispositions of such
Securities by means of the Registration Statement or Prospectus until such
Holder's receipt of the copies of the supplemented or amended Prospectus, or
until it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto, provided, however, that this paragraph shall not
prohibit any Holder from engaging in dispositions of the Securities through
means other than pursuant to the Registration Statement or Prospectus, as long
as such dispositions comply with applicable laws.
Upon the occurrence of any event contemplated by subsections
(e)(ii) through (vi) above, the Company and the Guarantors shall promptly
prepare a post-effective amendment to the applicable Registration Statement or
an amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to Initial Purchasers of the
securities included therein, the Prospectus will not include 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 provided, however, that the
REVISED PKI Registration Rights Agreement
13
Company may delay preparing, filing and distributing any such supplements or
amendments (and continue the suspension of the use of the prospectus) if the
Company determines in good faith that such supplement or amendment would, in the
reasonable judgment of the Company, (i) interfere with or affect the negotiation
or completion of a transaction that is being contemplated by the Company
(whether or not a final decision has been made to undertake such transaction) or
(ii) involve initial or continuing disclosure obligations that are not in the
best interests of the Company's shareholders at such time; provided, further,
that neither such delay nor such suspension with respect to all matters in
clause (i) or (ii) shall extend for a period of more than 30 days in any
three-month period or more than 90 days for all such periods in any twelve-month
period and shall not affect the Company's obligations to pay Liquidated Damages
as contemplated by Section 2.5 hereof. In such circumstances, the period of
effectiveness of the Exchange Offer Registration Statement provided for in
Section 2.1 and the Shelf Registration Statement provided for in Section 2.2
shall each be extended by the number of days from and including the date of the
giving of a notice of suspension pursuant to Section 3(e) to and including the
date when the Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer shall have received such amended or supplemented
Prospectus pursuant to this Section 3(e).
(f) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution", substantially in the form of Exhibit A, which
section shall be acceptable to Xxxxxxx Xxxxx on behalf of the Participating
Broker-Dealers, and which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that holds Registrable Securities
acquired for its own account as a result of market-making activities or other
trading activities and that will be the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of Exchange Securities to be received by such
broker-dealer in the Exchange Offer, whether such positions or policies have
been publicly disseminated by the staff of the SEC or such positions or
policies, in the judgment of Xxxxxxx Xxxxx on behalf of the Participating
Broker-Dealers and its counsel, represent the prevailing views of the staff of
the SEC, including a statement that any such broker-dealer who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer may be
deemed a statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Securities, (ii) furnish to each Participating Broker-Dealer who has delivered
to the Company and the Guarantors the notice referred to in Section 3(e),
without charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any amendment
or supplement thereto, as such Participating Broker-Dealer may reasonably
request, (iii) hereby consent, subject to the provisions of Section 3(e), to the
use of the Prospectus forming part of the Exchange Offer Registration Statement
or any amendment or supplement thereto, by any Person subject to the prospectus
delivery requirements of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto, and (iv) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following
provision (or any other similar provision
REVISED PKI Registration Rights Agreement
14
reasonably requested by Xxxxxxx Xxxxx on behalf of the Participating
Broker-Dealers with respect to similar matters):
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Company agrees to deliver to the Initial Purchasers on behalf of
the Participating Broker-Dealers upon the effectiveness of the Exchange Offer
Registration Statement if the Initial Purchasers request (i) an opinion of
counsel or opinions of counsel substantially in the form attached hereto as
Exhibit B, (ii) officers' certificates substantially in the form customarily
delivered in a public offering of debt securities and (iii) a comfort letter or
comfort letters in customary form to the extent permitted by Statement on
Auditing Standards No. 72 of the American Institute of Certified Public
Accountants (or if such a comfort letter is not permitted, an agreed upon
procedures letter in customary form) from the Company's independent certified
public accountants (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements are, or are required to be, included in
the Registration Statement) at least as broad in scope and coverage as the
comfort letter or comfort letters delivered to the Initial Purchasers in
connection with the initial sale of the Securities to the Initial Purchasers;
(g) (i) in the case of an Exchange Offer, furnish counsel
for the Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any comment letters
received from the SEC or any other request by the SEC or any state securities
authority for amendments or supplements to a Registration Statement and
Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, and each underwriter, if any, without charge,
at least one conformed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference and all exhibits thereto,
unless requested);
(j) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing
REVISED PKI Registration Rights Agreement
15
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations (consistent with
the provisions of the Indenture) and registered in such names as the selling
Holders or the underwriters, if any, may reasonably request at least three
business days prior to the closing of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, a reasonable
time prior to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a Prospectus
or any document which is to be incorporated by reference into a Registration
Statement or a Prospectus after initial filing of a Registration Statement,
provide copies of such document to the Initial Purchasers on behalf of such
Holders; and make such representatives of the Company and the Guarantors as
shall be reasonably requested by the Holders of Registrable Securities, or the
Initial Purchasers on behalf of such Holders, available for discussion of such
document;
(1) obtain a CUSP number for all Exchange Securities,
Private Exchange Securities or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Securities, Private Exchange
Securities or the Registrable Securities, as the case may be, in a form eligible
for deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the
Trust Indenture Act of 1939 (the "TIA") in connection with the registration of
the Exchange Securities or Registrable Securities, as the case may be, (ii)
reasonably cooperate with the Trustee and the Holders to effect such changes to
the Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute, and use its reasonable
best efforts to cause the Trustee to execute, all documents as may be reasonably
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;
(n) in the case of a Shelf Registration, enter into
agreements (including underwriting agreements) and take all other customary and
appropriate actions, in each case in form and substance reasonably acceptable to
the Company and the Guarantors, in order to facilitate the disposition of such
Registrable Securities and in such connection, but only if the registration is
an undenvritten registration:
(i) make such representations and warranties to
the underwriters in form, substance and scope as are
customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company
and the Guarantors and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters addressed to the
underwriters covering the matters customarily covered in
opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such underwriters;
REVISED PKI Registration Rights Agreement
16
(iii) obtain "cold comfort" letters and updates
thereof from the Company's and the Guarantors' independent
certified public accountants (and, if necessary, any other
independent certified public accountants of any subsidiary of
the Company or of any business acquired by the Company for
which financial statements are, or are required to be,
included in the Registration Statement) addressed to the
underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with similar
underwritten offerings;
(iv) enter into a securities sales agreement with
the Holders and an agent of the Holders providing for, among
other things, the appointment of such agent for the selling
Holders for the purpose of soliciting purchases of
Registrable Securities, which agreement shall be in form,
substance and scope customary for similar offerings;
(v) cause the underwriting agreement to set
forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures
set forth in Section 4 hereof with respect to the underwriters
and all other parties to be indemnified pursuant to said
Section; and
(vi) deliver such documents and certificates as
may be reasonably requested and as are customarily delivered
in similar offerings to the managing underwriters.
The above shall be done at (i) the effectiveness of such Registration Statement
(and each post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder;
(o) in the case of a Shelf Registration or if a
Prospectus is required to be delivered by any Participating Broker-Dealer in
the case of an Exchange Offer, make available for inspection by representatives
of the Holders of the Registrable Securities, any underwriters participating in
any disposition pursuant to a Shelf Registration Statement, any Participating
Broker-Dealer and any counsel or accountant retained by any of the foregoing,
such financial and other records, pertinent corporate documents and properties
of the Company and the Guarantors as may be reasonably requested by any such
persons in connection with such Registration Statement as is customary for
similar due diligence examinations, and cause the respective officers,
directors, employees, and any other agents of the Company and the Guarantors to
supply all information reasonably requested by any such representative,
underwriter, special counsel or accountant in connection with a Registration
Statement, and make such representatives of the Company and the Guarantors
available for discussion of such documents as shall be reasonably requested by
the Initial Purchasers; provided, however, that any information that is
designated in writing by the Company, in good faith, as confidential at the time
of delivery of such information shall be kept confidential by the Holders or any
such underwriter, attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without an
accompanying obligation of confidentiality;
REVISED PKI Registration Rights Agreement
17
(p) (i) in the case of an Exchange Offer Registration
Statement, a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any amendment to
an Exchange Offer Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Initial Purchasers and to
counsel to the Holders of Registrable Securities and make such changes in any
such document prior to the filing thereof as the Initial Purchasers or counsel
to the Holders of Registrable Securities may reasonably request and, except as
otherwise required by applicable law, not file any such document in a form to
which the Initial Purchasers on behalf of the Holders of Registrable Securities
and counsel to the Holders of Registrable Securities shall not have previously
been advised and furnished a copy of or to which the Initial Purchasers on
behalf of the Holders of Registrable Securities or counsel to the Holders of
Registrable Securities shall reasonably object, and make the representatives of
the Company and the Guarantors available for discussion of such documents as
shall be reasonably requested by the Initial Purchasers; and
(ii) in the case of a Shelf Registration, a
reasonable time prior to filing any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf Registration Statement or
amendment or supplement to such Prospectus, provide copies of such document to
the Holders of Registrable Securities, to the Initial Purchasers, to counsel for
the Holders and to the underwriter or underwriters of an underwritten offering
of Registrable Securities, if any, make such changes in any such document prior
to the filing thereof as the Initial Purchasers, the counsel to the Holders or
the underwriter or underwriters reasonably request and not file any such
document in a form to which the Majority Holders, the Initial Purchasers on
behalf of the Holders of Registrable Securities, counsel for the Holders of
Registrable Securities or any underwriter shall not have previously been advised
and furnished a copy of or to which the Majority Holders, the Initial Purchasers
on behalf of the Holders of Registrable Securities, counsel to the Holders of
Registrable Securities or any underwriter shall reasonably object, and make the
representatives of the Company and the Guarantors available for discussion of
such document as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders, counsel for the
Holders of Registrable Securities or any underwriter.
(q) in the case of a Shelf Registration, use its
reasonable best efforts to cause all Registrable Securities to be listed on any
securities exchange on which similar debt securities issued by the Company or
any Guarantor are then listed if requested by the Majority Holders, or if
requested by the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any;
(r) in the case of a Shelf Registration, use its
reasonable best efforts to cause the Registrable Securities to be rated by the
appropriate rating agencies, if so requested by the Majority Holders, or if
requested by the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any;
(s) otherwise comply with all applicable rules and
regulations of the SEC and make available to its security holders no later than
45 days after the end of any twelve-month period (or 90 days after the end of
any twelve-month period if such period is a fiscal year) an earnings statement
satisfying the provisions of Section 11 (a) of the 1933 Act and Rule 158
REVISED PKI Registration Rights Agreement
18
thereunder (or any similar rule under the 0000 Xxx) covering a period of at
least twelve months beginning on the first day of the first fiscal quarter after
the effective date of the applicable Registration Statement;
(t) cooperate and assist in any filings required to be
made with the NASD and, in the case of a Shelf Registration, in the performance
of any due diligence investigation by any underwriter and its counsel (including
any "qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD);
(u) upon consummation of an Exchange Offer or a Private
Exchange, obtain a customary opinion of counsel to the Company and the
Guarantors addressed to the Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer or Private Exchange,
and which includes an opinion that (i) the Company, and the Guarantors, have
duly authorized, executed and delivered the Exchange Securities and/or Private
Exchange Securities, as applicable, and the related indenture, and (ii) each of
the Exchange Securities and related indenture constitute a legal, valid and
binding obligation of the Company and the Guarantors, enforceable against the
Company and the Guarantors, in accordance with its respective terms (with
customary exceptions).
(v) Not less than 30 calendar days prior to the Effective
Time of any Shelf Registration Statement required under this Agreement, the
Company shall mail a notice and questionnaire, in substantially the form
attached as Exhibit C (the "Notice and Questionnaire"), to the Holders of
Registrable Securities; no Holder shall be entitled to be named as a selling
security holder in the Shelf Registration Statement as of the Effective Time,
and no Holder shall be entitled to use the Prospectus or any part thereof for
resales of Securities at any time, unless such Holder has returned a completed
and signed Notice and Questionnaire to the Company by the deadline for response
set forth therein; provided, however, that Holders of Registrable Securities
shall have at least 28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such Holders to return a completed and signed
Notice and Questionnaire to the Company in substantially the form attached as
Exhibit C.
(w) After the Effective Time of any Shelf Registration
Statement required to be filed under this Agreement, Holders of Registrable
Securities who did not timely return a Notice and Questionnaire to the Company
may return a Notice and Questionnaire at any time and may request to be included
in such Shelf Registration Statement. If:
(i) the Company can include such Holder with
respect to its Registrable Securities by means of a prospectus
supplement filed pursuant to Rule 424(b) of the 1933 Act or by means a
registration statement filed pursuant to Rule 462(b) of the 1933 Act,
then the Company shall file such Rule 424(b) supplement or Rule 462(b)
registration statement with the SEC within 10 business days of its
receipt of the Notice and Questionnaire.
(ii) the Company, in the opinion of its counsel,
cannot include such Holder with respect to its Registrable Securities
by means of a prospectus supplement to the prospectus contained as part
of such effective Shelf Registration Statement or by
REVISED PKI Registration Rights Agreement
19
means of a related registration statement filed pursuant to Rule 462(b)
of the 1933 Act, the Company shall promptly take any action reasonably
necessary to enable such a Holder to use a registration statement for
resale of Registrable Securities, including, without limitation, any
action necessary to identify such Holders or selling securityholder in
a new Shelf Registration Statement which the Company shall promptly
file and cause to be declared effective to cover the resale of the
Registrable Securities that are the subject of such request.
(x) In the event of a Shelf Registration Statement, in
addition to the information required to be provided in the Notice and
Questionnaire, the Company may require Holders to furnish to the Company
additional information regarding such Holder and such Holder's intended method
of distribution of Securities as may be required in order to comply with the
1933 Act. Each Holder agrees to notify the Company as promptly as practicable of
any inaccuracy or change in information previously furnished by such Holder to
the Company or of the occurrence of any event in either case as result of which
any prospectus relating to the Shelf Registration Statement contains or would
contain an untrue statement of a material fact regarding such Holder or such
Holder's intended method of disposition of such Securities or omits to state any
material fact regarding such Holder or such Holder's intended method of
disposition of such Securities required to be stated therein or necessary to
make the statement therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Company any additional information or
required so that such prospectus shall not contain, with respect to such Holder
or the disposition of such Securities, an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing.
In the event that the Company fails to effect the Exchange
Offer or file any Shelf Registration Statement and maintain the effectiveness of
any Shelf Registration Statement as provided herein, the Company shall not file
any Registration Statement with respect to any securities (within the meaning of
Section 2(1) of the 0000 Xxx) of the Company other than Registrable Securities.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of such Registrable Securities
included in such offering, provided that such undenvriter(s) or manager(s) shall
be acceptable to the Company and the Guarantors. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
4. Indemnification; Contribution (a) The Company and
the Guarantors agree, jointly and severally, to indemnify and hold harmless the
Initial Purchasers, each Holder, each Participating Broker-Dealer, each Person
who participates as an underwriter (any such
REVISED PKI Registration Rights Agreement
20
Person being an "Underwriter") and each Person, if any, who controls any Holder
or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) from and against any and all losses, claims,
damages, liabilities, costs and expenses whatsoever, joint or
several as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement
thereto) pursuant to which Exchange Securities or Registrable
Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(ii) from and against any and all losses, claims,
damages, liabilities, costs and expenses whatsoever, joint or
several as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 4(d)
below) any such settlement is effected with the written
consent of the Company; and
(iii) from and against any and all expenses
whatsoever, as incurred, joint or several, (including the
reasonable fees and disbursements of outside counsel chosen by
any indemnified party), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that (A) neither the Company nor the Guarantors shall be
liable hereunder to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company or the Guarantors by the
Holder or Underwriter expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto),
and (B) with respect to any untrue statement or omission of material fact made
in any Prospectus, the indemnity agreement contained in this Section 4(a) shall
not inure to the benefit of any Holder from whom the Person asserting any such
losses, claims, damages, liabilities, costs or expenses purchased the securities
concerned, if it shall have been determined by a court of competent jurisdiction
by a final and nonappealable judgment that the Holder failed to deliver a
prospectus supplement which corrected the untrue statement or omission of
material fact
REVISED PKI Registration Rights Agreement
21
contained in the Prospectus, provided that the Company or the Guarantors made
available such prospectus supplement in accordance with this Agreement.
(b) Each Holder severally, but not jointly, agrees to
indemnify and hold harmless the Company, the Guarantors, the Initial Purchasers,
each Underwriter and the other selling Holders, and each of their respective
directors and officers, and each Person, if any, who controls the Company, any
of the Guarantors, the Initial Purchasers, any Underwriter or any other selling
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Sections 4(a)(i) to (iii) hereof, as
incurred, but only with respect to (i) untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf Registration Statement
(or any amendment thereto) or any Prospectus included therein (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company or the Guarantors by such Holder expressly
for use in the Shelf Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no
such Holder shall be liable for any claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action or proceeding
commenced or threatened in writing against it in respect of which indemnity may
be sought hereunder, but failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ one separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest that would make it inappropriate in the reasonable judgment of such
indemnified party for the same counsel to represent both the indemnified party
and the indemnifying party; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and or other indemnified
parties which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action;
or (iv) the indemnifying party shall specifically authorize the indemnified
party in writing to employ separate counsel at the expense of the indemnifying
party.
REVISED PKI Registration Rights Agreement
22
It is understood, however, that the indemnifying party shall, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general circumstances, be liable
for the reasonable fees and expenses of only one firm of attorneys (in addition
to local counsel) at any time for all such indemnified parties. In respect of
any claim, action or proceeding the defense of which shall have been assumed by
the indemnifying party in accordance with the foregoing, each indemnified party
shall have the right to participate in such litigation and to retain its own
counsel at its own expense. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 4 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party. No indemnifying party
shall be liable under Sections 4(a), 4(b) or 4(c) for any settlement of any
claim or action effected without its consent, which consent will not be
unreasonably withheld; provided, however, that such indemnifying party has
notified in writing the indemnified party of its refusal to accept such
settlement within 30 days of its receipt of a written notice from the
indemnified party outlining the terms of such settlement.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 4(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 60 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 45 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement (other than
reimbursement for fees and expenses that the indemnifying party is contesting in
good faith).
(e) If the indemnification provided for in this Section 4
is otherwise applicable by its terms but is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities, costs or expenses referred to therein, then the
Company and the Guarantors shall contribute to the aggregate amount of such
losses, claims, damages, liabilities, costs and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Holders and Initial Purchasers on the other hand from the sale of the Securities
or (ii) if the allocation provided by clause (i) is for any reason held
unenforceable or not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantors on the one
hand and the Holders and the Initial Purchasers on the other hand in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities, costs or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Holders and Initial
REVISED PKI Registration Rights Agreement
23
Purchasers on the other hand from the sale of the Securities shall be deemed to
be in the same proportion as the total net proceeds received by the Company and
the Guarantors from the sale of the Securities (before deducting expenses)
initially bears to the initial purchasers' discount received by the Initial
Purchasers in connection with the sale of the Securities.
The relative fault of the Company and the Guarantors on the
one hand and the Holders and the Initial Purchasers on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company, the
Guarantors, the Holders or the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Guarantors, the Holders and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 4 were determined by pro rata allocation (even if the
Initial Purchasers 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 above in this Section 4. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities and Guarantees sold by it were
offered exceeds the amount of any damages which such Initial Purchaser 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 1l(f) of the 0000 Xxx) shall be entitled to contribution
under this Section 4 from any Person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 4, each Person, if any, who
controls an Initial Purchaser or Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchaser or Holder, and each director of the
Company or any Guarantor, and each Person, if any, who controls the Company or
any Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Company or such
Guarantor. The Initial Purchasers' respective obligations to contribute pursuant
to this Section 7 are several in proportion to the principal amount of
Securities set forth opposite their respective names in Schedule A to the
Purchase Agreement and not joint.
5. Miscellaneous 5.1 Rule 144 and Rule 144A. For so
long as the Company or any Guarantor is subject to the reporting requirements of
Section 13 or 15 of the 1934 Act, the Company and each Guarantor covenants that
they will file the reports required to
REVISED PKI Registration Rights Agreement
24
be filed by them under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act
and the rules and regulations adopted by the SEC thereunder. If the Company and
the Guarantors cease to be so required to file such reports, the Company and the
Guarantors covenant that they will upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the 1933 Act and will take such further action as any Holder
of Registrable Securities may reasonably request, and (c) take such further
action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Company and the Guarantors will deliver to such Holder a written
statement as to whether they have complied with such requirements.
5.2 No Inconsistent Agreements. The Company and each
Guarantor have not entered into and the Company and each Guarantor will not
after the date of this Agreement enter into any agreement which is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not and will not for the term of this Agreement in
any way conflict with the rights granted to the holders of the Company's and
each Guarantors' other issued and outstanding securities under any such
agreements.
5.3 Release of Guarantors. A Guarantor shall be released
from its obligations under this Agreement to the extent it is released from its
obligations under its Guarantee pursuant to the Indenture, provided such release
occurs prior to the filing of the Registration Statement.
5.4 Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company and the Guarantors have
obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or departure.
5.5 Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (a) if to a Holder, at the most current address given by such
Holder to the Company and the Guarantors by means of a notice given in
accordance with the provisions of this Section 5.4, which address initially is
the address set forth in the Purchase Agreement with respect to the Initial
Purchasers; and (b) if to the Company or any Guarantor, initially at the
Company's or such Guarantor's address set forth in the Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.4.
REVISED PKI Registration Rights Agreement
25
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is 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
under the Indenture, at the address specified in such Indenture.
5.6 Successor and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture
or applicable law. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement, and such
person shall be entitled to receive the benefits hereof.
5.7 Third Party Beneficiaries. The Initial Purchasers
(even if the Initial Purchasers are not Holders of Registrable Securities) shall
be third party beneficiaries to the agreements made hereunder between the
Company and the Guarantors, on the one hand, and the Holders, on the other hand,
and shall have the right to enforce such agreements directly to the extent they
deem such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder. Each Holder of Registrable Securities shall be a
third party beneficiary to the agreements made hereunder between the Company and
the Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
and shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights hereunder.
5.8. Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company and the
Guarantors acknowledge that any failure by the Company and the Guarantors to
comply with their obligations under Sections 2.1 through 2.4 hereof may result
in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it would not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's and the Guarantors' obligations
under Sections 2.1 through 2.4 hereof.
5.9 Restriction on Resales. Until the expiration of two
years after the original issuance of the Securities and the Guarantees, the
Company and the Guarantors will not, and will cause their "affiliates" (as such
term is defined in Rule 144(a)(1) under the 0000 Xxx) not to, resell any
Securities and Guarantees which are "restricted securities" (as such term is
defined
REVISED PKI Registration Rights Agreement
26
under Rule 144(a)(3) under the 0000 Xxx) that have been reacquired by any of
them and shall immediately upon any purchase of any such Securities and
Guarantees submit such Securities and Guarantees to the Trustee for
cancellation.
5.10 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.
5.11 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.13 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
REVISED PKI Registration Rights Agreement
27
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Very Truly Yours,
PERKINELMER, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
APPLIED SURFACE TECHNOLOGY, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
CCS PACKARD, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
XXXX CONSUMABLE PRODUCTS, LLC
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
LUMEN TECHNOLOGIES, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
NEN LIFE SCIENCES, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
PACKARD BIOSCIENCE COMPANY
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
REVISED PKI Registration Rights Agreement
29
Title: Treasurer
PACKARD INSTRUMENT COMPANY, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
PERKINELMER INSTRUMENTS LLC
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
PERKINELMER LABWORKS, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Treasurer
PERKINELMER LIFE SCIENCES, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Treasurer
PERKINELMER OPTOELECTRONICS
NC, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
PERKINELMER OPTOELECTRONICS
SC, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
PERKINELMER HOLDINGS, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
REVISED PKI Registration Rights Agreement
30
PERKINELMER AUTOMOTIVE
RESEARCH, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
REVISED PKI Registration Rights Agreement
31
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BANC OF AMERICA SECURITIES LLC
XX XXXXX SECURITIES CORPORATION
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx Xxxxxxx
----------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
EXHIBIT A
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives Exchange Notes for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a Broker-Dealer in
connection with resales of Exchange Notes received in exchange for Securities
where such Securities were acquired as a result of market-making activities or
other trading activities. The Company has agreed that, starting on the
Expiration Date and ending on the close of business 180 days after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any Broker-Dealer for use in connection with any such resale. In
addition, until date that is 180 days from the Issue Date, all dealers effecting
transactions in the Exchange Notes may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of Exchange Notes by
brokers-dealers. Exchange Notes received by Broker-Dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the Exchange Notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
Broker-Dealer and/or the purchasers of any such Exchange Notes. Any
Broker-Dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of Exchange Notes and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company will promptly
send additional copies of this Prospectus and any amendment or supplement to
this Prospectus to any Broker-Dealer that requests such documents in the Letter
of Transmittal. The Company has agreed to pay all expenses incident to the
Exchange Offer (including the expenses of one counsel for the holder of the
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the holders of the Securities (including any Broker-Dealers)
against certain liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508]
1
EXHIBIT B
Form of Opinion of Counsel
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Banc of America Securities LLC
XX Xxxxx Securities Corporation
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
4 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel for PerkinElmer, Inc., a Massachusetts
corporation (the "Company"), in connection with the sale by the Company and the
Guarantors to the Initial Purchasers (as defined below) of $300,000,000
aggregate principal amount of 8 7/8% Senior Subordinated Notes due 2013 (the
"Notes") of the Company pursuant to the Purchase Agreement dated December 13,
2002 (the "Purchase Agreement"), among the Company, the Guarantors and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Banc of America Securities LLC and
XX Xxxxx Securities Corporation (collectively, the "Initial Purchasers") and the
filing by the Company and the Guarantors of an Exchange Offer Registration
Statement (the "Registration Statement") in connection with an Exchange Offer to
be effected pursuant to the Registration Rights Agreement (the "Registration
Rights Agreement"), dated December 26, 2002, among the Company, the Guarantors
and the Initial Purchasers. This opinion is furnished to you pursuant to Section
3(f)(B) of the Registration Rights Agreement. Unless otherwise defined herein,
capitalized terms used in this opinion that are defined in the Registration
Rights Agreement are used herein as so defined.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In rendering this opinion, as to
all matters of fact relevant to this opinion, we have assumed the completeness
and accuracy of, and are relying solely upon, the representations and warranties
of the Company and the Guarantors set forth in the Purchase Agreement and the
statements set forth in certificates of public officials and officers of the
Company, without making any independent investigation or inquiry with respect to
the completeness or accuracy of such representations, warranties or statements,
other than a review of the certificate of incorporation, by-laws and relevant
minute books of the Company and the Guarantors.
Based on and subject to the foregoing, we are of the opinion that:
1. The Exchange Offer Registration Statement and the
Prospectus (other than the financial statements, including notes and schedules
thereto, and any other financial and
1
accounting information and any written information provided by any of the
Initial Purchasers to the Company or any Guarantor expressly for use in the
Registration Statement or the Prospectus and the Form T-1, as to which such
counsel need express no opinion), comply as to form in all material respects
with the applicable requirements of the 1933 Act and the applicable rules and
regulations promulgated under the 1933 Act.
In connection with the preparation of the Registration
Statement and the Prospectus we have participated in conferences with
representatives of the Initial Purchasers, including their counsel, officers and
other representatives of the Company and representatives of Deloitte and Touche
LLP, the Company's and the Guarantors' independent public accountants, during
which the contents of the Registration Statement and the Prospectus were
discussed. While the limitations inherent in the independent verification of
factual matters and the character of determinations involved in the registration
process are such that we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, subject to the
foregoing and based on such participation and discussions, no facts have come to
our attention which have caused us to believe that (i) the Registration
Statement as of the Effective Date contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (except that we express no such view with respect to the
financial statements, including the notes and schedules thereto, or any other
financial or accounting information, or any written information provided by any
of the Initial Purchasers to the Company or any Guarantor expressly for use in
the Registration Statement or the Prospectus), or (ii) the Prospectus, as of the
date of the Prospectus or as of the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (except that we express
no such view with respect to the financial statements, including the notes and
schedules thereto, or any other financial or accounting information, or any
written information provided by any of the Initial Purchasers to the Company or
any Guarantor expressly for use in the Registration Statement or the
Prospectus).
2
This opinion is being furnished to you solely for your benefit
in connection with the transactions contemplated by the Registration Rights
Agreement, and may not be used for any other purpose or relied upon by any
person other than you. Except with our prior written consent, the opinions
herein expressed are not to be used, circulated, quoted or otherwise referred to
in connection with any transactions other than those contemplated by the
Registration Rights Agreement by or to any other person.
Very truly yours,
3
EXHIBIT C
Notice of Registration Statement and Selling
Securityholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights Agreement (the "Registration
Rights Agreement") among PerkinElmer, Inc. (the "Company"), Applied Surface
Technology, Inc., a California corporation, CCS Packard, Inc., a California
corporation, Xxxx Consumable Products, LLC, a Delaware limited liability
company, Lumen Technologies, Inc., a Delaware corporation, NEN Life Sciences,
Inc., a Delaware corporation, Packard Bioscience Company, a Delaware
corporation, Packard Instrument Company, Inc., a Delaware corporation,
PerkinElmer Instruments LLC, a Delaware limited liability company, PerkinElmer
Labworks, Inc., a Delaware corporation, PerkinElmer Life Sciences, Inc., a
Delaware corporation, PerkinElmer Optoelectronics NC, Inc., a Delaware
corporation, PerkinElmer Optoelectronics SC, Inc., a Delaware corporation,
PerkinElmer Holdings, Inc., a Massachusetts corporation and PerkinElmer
Automotive Research, Inc. a Texas corporation (the "Subsidiary Guarantors") and
the Initial Purchasers named therein. Pursuant to the Registration Rights
Agreement, the Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form__ (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's
8 7/8% Senior Subordinated Notes due 2013 (the "Securities"). A copy of the
Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel of the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf and Registration Statement and (ii) may not use the Prospectus
forming a part thereof for resales of Exchange Securities (as defined below).
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequence of being name or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The terms "REGISTRABLE SECURITIES" and "EXCHANGE SECURITIES" are defined in the
Registration Rights Agreement.
4
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Registration Rights Agreement, as if
the undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth as Exhibit D to the Registration
Rights Agreement. The Selling Securityholder hereby provides the following
information to the Company and represents and warrants that such information is
accurate and complete:
5
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Holder (if not the same as in (a) above) of
Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
__CUSIP No(s) of such Registrable Securities_______________
(b) Principal amount of Securities other than Registrable
Securities beneficially owned: __CUSIP No(s). of such other
Securities_______________
(c) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf Registration
Statement: __CUSIP No(s). of such Registrable Securities to be
included in the Shelf Registration Statement_______________
(4) Beneficial Ownership of other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Company, other than the Securities listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
6
(6) Plan of Distribution:
State any exceptions here:
Except as set forth below, the undersigned Selling Securityholder intends to
distribute the Registrable Securities listed above in Item (3) only as follows
(if at all): Such Registrable Securities may be sold from time to time directly
by the undersigned Selling Securityholder or, alternatively, through
underwriters, broker-dealers or agents. Such Registrable Securities may be sold
in one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sate, or at negotiated
prices. Such sales may be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchange or quotation service
on which the Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable Securities
or otherwise, the Selling Securityholder may enter into hedging transactions
with broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Setting Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus. In accordance with the
Selling Securityholder's obligation under Section 3(e) of the Exchange and
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, or air courier guaranteeing
overnight delivery as follows:
7
(i) To the Company:
___________________________
___________________________
___________________________
(ii) With a copy to:
___________________________
___________________________
___________________________
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
8
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duty authorized agent.
Dated:
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable Securities)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
___________________________
___________________________
___________________________
9
EXHIBIT D
Notice of Transfer Pursuant to Registration Statement
[Company]
[Address]
[Trustee]
[Address]
Attention: Trust Officer
Re: 8 7/8% Senior Subordinated Notes Due 2013
Dear Sirs:
Please be advised that__________________________________has transferred
$________________________aggregate principal amount of the above-referenced
Notes pursuant to an effective Registration Statement on Form [ ]
(File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any,
of the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated [DATE] or in supplements thereto, and that the aggregate
principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
___________________________________________
Name:
Title:
1
