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EXHIBIT 99.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of November 3, 1997 by and among EVI, Inc., a Delaware
corporation (the "Company"), Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation, Credit Suisse First Boston
Corporation, Xxxxxx Brothers Inc., Prudential Securities Incorporated and
Xxxxxxxx & Co. Inc. (the "Initial Purchasers") pursuant to the Placement
Agreement, dated as of October 28, 1997 (the "Placement Agreement"), among the
Company and the Initial Purchasers. In order to induce the Initial Purchasers
to enter into the Placement Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Placement Agreement.
The Company agrees with the Initial Purchasers, (i) for their
benefit as Initial Purchasers and (ii) for the benefit of the holders from time
to time of the Registrable Securities (including the Initial Purchasers) (each
of the foregoing a "Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein
without definition shall have their respective meanings set forth in the
Placement Agreement. As used in this Agreement, the following terms shall have
the following meanings:
Affiliate: "Affiliate" means, with respect to any specified
person, (i) any other person directly or indirectly controlling or controlled
by, or under direct or direct common control with, such specified person or
(ii) any officer or director of such other person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a person means the possession, direct
or indirect, of the power (whether or not exercised) to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise.
Applicable Conversion Price: The Applicable Conversion Price
as of any date of determination means the Conversion Price, as may be adjusted
from time to time, in effect as of such date of determination or, if no
Convertible Debentures are then outstanding, the Conversion Price that would be
in effect were Convertible Debentures then outstanding.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
Common Stock: The shares of common stock, $1.00 par value per
share, of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, including the Underlying Common
Stock.
Conversion Price: Conversion Price shall have the meaning
assigned such term in Section 6.1 of the Indenture.
Convertible Debentures: The 5% Convertible Subordinated
Preferred Equivalent Debentures due 2027 of the Company purchased by the
Initial Purchasers pursuant to the Placement Agreement.
Damages Accrual Period: See Section 2(e) hereof.
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Damages Payment Date: Each Interest Payment Date (as defined
in the Indenture), in the case of Convertible Debentures, and each January 31,
April 30, July 31 and October 31, in the case of Underlying Common Stock.
Deferral Period: See Section 2(d)(ii) hereof.
Effectiveness Period: The period commencing with the date
hereof and ending on the date that all Registrable Securities have ceased to be
Registrable Securities.
Event: See Section 2(e) hereof.
Event Termination Date: See Section 2(e), hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of October 15, 1997,
between the Company and The Chase Manhattan Bank, as trustee, pursuant to which
the Convertible Debentures are being issued, as amended by the First
Supplemental Indenture dated as of October 28, 1997, between the Company and
The Chase Manhattan Bank, as trustee.
Initial Purchasers: Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, Credit Suisse First Boston
Corporation, Xxxxxx Brothers Inc., Prudential Securities Incorporated and
Xxxxxxxx & Co. Inc.
Initial Shelf Registration: See Section 2(a) hereof.
Losses: See Section 6 hereof.
Notice Holder: See Section 2(d)(i) hereof.
Placement Agreement: See the first paragraph of this
Agreement.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Registrable Securities: The Convertible Debentures and the
Underlying Common Stock, whether or not such securities have been converted or
exchanged, and at all times subsequent to any such conversion or exchange, and
any security issued with respect thereto upon any stock dividend, split or
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similar event until, in the case of any such security, (i) it is effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement covering its offering and sale, (ii) it is saleable by
the Holder thereof pursuant to Rule 144(k) or (iii) it is sold to the public
pursuant to Rule 144 and, as a result of the event or circumstance described in
any of the foregoing clauses (i) through (iii), the legends with respect to
transfer restrictions required under the Indenture are removed or removable in
accordance with the terms of the Indenture.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits, and all material incorporated by reference or deemed
to be incorporated by reference in such registration statement.
Restricted Securities: As this term is defined in Rule 144.
Rule 144: Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
Selling Period: See Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Xxxxx & Xxxxx, L.L.P. or such other
successor counsel as shall be specified by the Holders of a majority of the
Registrable Securities, the reasonable fees and expenses of which will be paid
by the Company pursuant to Section 5 hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Chase Manhattan Bank (or any successor entity),
the Trustee under the Indenture.
Underlying Common Stock: The Common Stock of the Company into
which the Convertible Debentures are convertible.
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Section 2. Shelf Registration.
(a) Shelf Registration. The Company shall prepare and
file with the SEC, as soon as practicable but in any event within ninety (90)
days after the latest date of original issuance of the Convertible Debentures
(the "Filing Date"), a Registration Statement for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act (a
"Shelf Registration") registering the resale from time to time by Holders
thereof of all of the Registrable Securities (the "Initial Shelf
Registration"). The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Securities for
resale by such Holders in the manner or manners designated by them. The
Company shall use its reasonable best efforts to cause the Initial Shelf
Registration to become effective under the Securities Act as promptly as is
practicable and to keep the Initial Shelf Registration continuously effective
under the Securities Act until the end of the Effectiveness Period or the date
a Subsequent Shelf Registration (as defined below) covering all of the
Registerable Securities has been declared effective under the Securities Act.
(b) If the Initial Shelf Registration or any Subsequent
Shelf Registration, as defined below, ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all Registrable
Securities shall have ceased to be Registrable Securities), the Company shall
use its reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within thirty (30)
days of such cessation of effectiveness amend the Shelf Registration in a
manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration covering all of
the Registrable Securities (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Company shall use its reasonable
best efforts to cause the Subsequent Shelf Registration to become effective as
promptly as is practicable after such filing and to keep such Registration
Statement continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf
Registration if required by the rules, regulations or instructions applicable
to the registration form used by the Company for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by the Initial
Purchasers or by the Trustee on behalf of the Holders of the Registrable
Securities covered by such Registration Statement.
(d) Each Holder of Registrable Securities agrees that if
such Holder wishes to sell its Registrable Securities pursuant to a Shelf
Registration and related Prospectus, it will do so only in accordance with this
Section 2(d). Each Holder of Registrable Securities agrees to give written
notice to the Company at least three (3) Business Days prior to any intended
distribution of Registrable Securities under the Shelf Registration, which
notice shall specify the date on which such Holder intends to begin such
distribution and any information with respect to such Holder and the intended
distribution of Registrable Securities by such Holder required to amend or
supplement the Registration Statement with respect to such intended
distribution of Registrable Securities by such Holder. As promptly as is
practicable after the date such notice is provided, and in any event within two
(2) Business Days after such date, the Company shall either:
(i) (A) if necessary, prepare and file with the
Commission a post-effective amendment to the Shelf Registration or a supplement
to the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document so that
such Registration Statement will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading,
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and so that, as thereafter delivered to purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; (B) provide the
Holders of the Registrable Securities who gave such notice copies of any
documents filed pursuant to Section 2(d)(i)(A); and (C) inform each such Holder
that the Company has complied with its obligations in Section 2(d)(i)(A) (or
that, if the Company has filed a post-effective amendment to the Shelf
Registration which has not yet been declared effective, the Company will notify
each such Holder to that effect, will use its reasonable best efforts to secure
the effectiveness of such post-effective amendment and will immediately notify
each such Holder pursuant to Section 2(d)(i)(C) hereof when the amendment has
become effective); each Holder who has given notice of intention to distribute
such Holder's Registrable Securities in accordance with Section 2(d) hereof (a
"Notice Holder") will sell all or any or such Registrable Securities pursuant
to the Shelf Registration and related Prospectus only during the 45-day period
commencing with the date on which the Company gives notice, pursuant to Section
2(d)(i)(C), that the Registration Statement and Prospectus may be used for such
purpose (such 45-day period is referred to as a "Selling Period"); the Notice
Holders will not sell any Restricted Securities pursuant to such Registration
Statement or Prospectus after such Selling Period without giving a new notice
of intention to sell pursuant to Section 2(d) hereof and receiving a further
notice from the Company pursuant to Section 2(d)(i)(A) hereof; or
(ii) in the event (A) of the happening of any
event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(c)(v)
hereof or (B) that, in the judgment of the Company, it is advisable to suspend
use of the Prospectus for a discrete period of time due to pending material
corporate developments or similar material events that have not yet been
publicly disclosed and as to which the Company believes public disclosure would
not be in the best interests of the Company, the Company shall deliver a
certificate in writing, signed by an authorized executive officer of the
Company, to the Notice Holders and the Special Counsel to the effect of the
foregoing and, upon receipt of such certificate, each such Notice Holder's
Selling Period will not commence or resume, as the case may be, until such
Notice Holder's receipt of copies of the supplemented or amended Prospectus
provided for in Section 2(d)(i)(A) hereof, or until it is advised in writing by
the Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus. The Company will use its reasonable best
efforts to ensure that the use of the Prospectus may be resumed, and the
Selling Period will commence, as promptly as is practicable and, in the case of
a pending development or event referred to in Section 2(d)(ii)(B) hereof, as
soon as the earlier of (x) public disclosure of such pending material corporate
development or similar material event or (y) in the judgment of the Company,
public disclosure of such material corporate development or similar material
event would be in the best interests of the Company. Notwithstanding the
foregoing, the Company shall not under any circumstances be entitled to
exercise its right under this Section 2(d)(ii) to defer the commencement of a
Selling Period more than 30 days in any three (3) month period or 60 days in
any twelve (12) month period, and the period during which a Selling Period is
suspended shall not exceed thirty (30) days unless the Company shall deliver to
such Notice Holders a second notice to the effect set forth above, which shall
have the effect of extending the period during which such Selling Period is
deferred by up to an additional thirty (30) days, or such shorter period of
time as is specified in such second notice; provided that the period during
which a Selling Period is deferred, a "Deferred Period," shall not exceed sixty
(60) days in any twelve (12) month period.
(e) The parties hereto agree that the Holders of
Registrable Securities will suffer damages, and that it would not be feasible
to ascertain the extent of such damages with precision, if (i) the Initial
Shelf Registration has not been filed on or prior to the Filing Date, (ii) the
date on which the Initial Shelf Registration is first declared effective is not
within one hundred eighty (180) days after
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the latest date of original issuance of the Convertible Debentures (the
"Mandatory Effective Date"), (iii) prior to the end of the Effectiveness
Period, the SEC shall have issued a stop order suspending the effectiveness of
the Shelf Registration or proceedings have been initiated with respect to the
Shelf Registration under Section 8(d) or 8(e) of the Securities Act or (iv) the
aggregate number of days in any one Deferral Period exceeds the number
permitted pursuant to Section 2(d)(ii) hereof (each of the events of a type
described in any of the foregoing clauses (i) through (iv) are individually
referred to herein as an "Event," and the Filing Date in the case of clause
(i), the Mandatory Effective Date in the case of clause (ii), the date on which
the effectiveness of the Shelf Registration has been suspended or proceedings
with respect to the Shelf Registration under Section 8(d) or 8(e) of the
Securities Act have been commenced in the case of clause (iii), and the date on
which the duration of a Deferral Period exceeds the number of days permitted by
Section 2(d)(ii) hereof in the case of clause (iv), being referred to herein as
an "Event Date"). Events shall be deemed to continue until the "Event
Termination Date," which shall be the following dates with respect to the
respective types of Events: the date the Initial Registration Statement is
filed in the case of an Event of the type described in clause (i), the date the
Initial Registration Statement is declared effective in the case of an Event of
the type described in clause (ii), the date that all stop orders suspending
effectiveness of the Shelf Registration have been removed and the proceedings
initiated with respect to the Shelf Registration under Section 8(d) or (e) of
the Securities Act have terminated, as the case may be, in the case of Events
of the types described in clause (iii), and termination of the Deferral Period
which caused the limit on the duration of a Deferral Period set forth in
Section 2(d)(ii) to be exceeded in the case of the commencement of an Event of
the type described in clause (iv).
Accordingly, upon the occurrence of any Event and until such
time as there are no Events that have occurred and are continuing (a "Damages
Accrual Period"), commencing on the Event Date on which such Damages Accrual
Period began, the Company agrees to pay, as liquidated damages, and not as a
penalty, an additional amount (the "Liquidated Damages Amount"): (A) (i) to
each Holder of a Convertible Debenture (in each case that is a Notice Holder),
accruing at a rate equal to one-quarter of one percent per annum (25 basis
points) on an amount equal to the principal amount of such Convertible
Debenture held by such Notice Holder and (ii) to each Holder of Underlying
Common Stock that is a Notice Holder, accruing at a rate equal to one-quarter
of one percent per annum (25 basis points) calculated on an amount equal to the
product of (x) the Applicable Conversion Price as of the Business Day
immediately prior to the applicable Damages Payment Date times (y) the number
of shares of Common Stock that are Registrable Securities held by such Notice
Holder; and (B) if the Damages Accrual Period continues for in excess of thirty
(30) days, from and after the end of such thirty (30) day period until the
applicable Event Termination Date, (i) to each Holder of a Convertible
Debenture (in each case whether or not a Notice Holder), accruing at a rate
equal to one-quarter of one percent per annum (25 basis points) on an amount
equal to the principal amount of such Convertible Debenture held by such Holder
and (ii) to each Holder of Underlying Common Stock (whether or not a Notice
Holder), accruing at a rate equal to one-quarter of one percent per annum (25
basis points) calculated on an amount equal to the product of (x) the
Applicable Conversion Price as of the Business Day immediately prior to the
applicable Damages Payment Date times (y) the number of shares of Common Stock
that are Registrable Securities held by such Holder. Notwithstanding the
foregoing, no Liquidated Damages Amounts shall accrue (1) under clause (A) of
the preceding sentence during any period for which Liquidated Damages Amounts
accrue under clause (B) of the foregoing sentence or (2) as to any Registrable
Security from and after the earlier of (x) the date such security is no longer
a Registrable Security and (y) expiration of the Effectiveness Period.
Notwithstanding the foregoing, no Damages Accrual Period with respect to any
Event described in clause (iii) of paragraph 2(e) shall commence unless and
until a Holder or Holders has given notice in accordance with Section 2(d)
hereof.
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Except as provided in this paragraph, upon the occurrence of
an Event or of multiple concurrent Events, the rate of accrual of the
Liquidated Damages Amount shall be one-quarter of one percent per annum (25
basis points) with respect to any period. Notwithstanding the foregoing, the
rate of accrual of the Liquidated Damages Amount shall be one-half of one
percent per annum (50 basis points) with respect to any period that multiple
concurrent Events have occurred and are continuing if one of such multiple
concurrent Events is an Event described in clause (ii) of paragraph 2(e) and
the Initial Registration Statement (excluding any post-effective amendments
thereto) has not been declared effective. Once the Initial Registration
Statement has been declared effective, the rate of accrual of Liquidated
Damages shall not exceed one-quarter of one percent per annum (25 basis
points).
The Company shall pay the liquidated damages due on any
Convertible Debenture or Underlying Common Stock by depositing with the
Trustee, in trust for the benefit of the Holders of Convertible Debentures or
Underlying Common Stock, as the case may be, entitled thereto, at least one (1)
Business Day prior to the applicable Damages Payment Date, sums sufficient to
pay the liquidated damages accrued or accruing from and including the last
preceding Damages Payment Date to, but not including, such Damages Payment
Date. The Liquidated Damages Amount due shall be payable on each Damages
Payment Date to the Holders of Registrable Securities entitled thereto holding
such Registrable Securities on the record date for such Damages Payment Date;
provided that accrued Liquidated Damages Amounts shall be paid on the
applicable redemption date upon the redemption of any Convertible Debenture (to
the extent accrued with respect to such Convertible Debenture). The Trustee
shall be entitled, on behalf of the Notice Holders and the Holders of
Convertible Debentures or Underlying Common Stock, to seek any available remedy
for the enforcement of this Agreement, including for the payment of such
liquidated damages. Notwithstanding the foregoing, the parties agree that the
sole damages payable for a violation of the terms of this Agreement with
respect to which liquidated damages are expressly provided shall be such
liquidated damages. Nothing shall preclude a Notice Holder or Holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section
2(e) which are outstanding with respect to any Registrable Security at the time
such security ceases to be a Registrable Security shall survive until such time
as all such obligations with respect to such security have been satisfied in
full (notwithstanding termination of this Agreement pursuant to Section 9(o)).
The parties hereto agree that the liquidated damages provided
for in this Section 2(e) constitute a reasonable estimate of the damages that
may be incurred by Holders of Registrable Securities (other than the Initial
Purchasers) by reason of the failure of the Shelf Registration to be filed or
declared effective or unavailable (absolutely or as a practical matter) for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
Section 3. Registration Procedures. In connection with
the registration obligations of the Company under Section 2 hereof, the
Company shall effect such registrations to permit the sale of the Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration
Statement on any appropriate form under the Securities Act available for the
sale of the Registrable Securities by the Holders thereof in accordance with
the intended method or methods of distribution thereof, and use their
reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, that before filing
any such Registration Statement or Prospectus or any amendments or
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supplements thereto (other than documents that would be incorporated or deemed
to be incorporated therein by reference) the Company shall furnish to the
Initial Purchasers and the Special Counsel of such offering, if any, copies of
all such documents proposed to be filed, which documents will be subject to the
review of the Initial Purchasers and the Special Counsel, and the Company shall
not file any such Registration Statement or amendment thereto or any Prospectus
or any supplement thereto (other than such documents which, upon filing, would
be incorporated or deemed to be incorporated by reference therein) to which the
Initial Purchasers or the Special Counsel shall reasonably object in writing
within two (2) full Business Days.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.
(c) Notify the Notice Holders and, following the giving
of notice pursuant to Section 2(d), the Initial Purchasers and the Special
Counsel promptly, and (if requested by any such person) confirm such notice in
writing, (i) when a Prospectus, any Prospectus supplement, a Registration
Statement or a post-effective amendment to a Registration Statement has been
filed with the SEC, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the existence of any fact or happening of any event which makes
any statement of a material fact in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or which would require the making of any changes in the
Registration Statement or Prospectus in order that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case
of the Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (vi) of
the determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement, or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
(e) If reasonably requested by the Initial Purchasers,
the Special Counsel, or the Holders of a majority of the Registrable Securities
being sold, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment to a Registration Statement such information as the
Initial
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Purchasers, the Special Counsel, or such Holders, in connection with any
offering of Registrable Securities, agree should be included therein as
required by applicable law, and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as promptly as is
practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, that the Company shall not be required to take any actions under this
Section 3(e) that are not, in the reasonable opinion of counsel for the
Company, in compliance with applicable law.
(f) Furnish to each selling Holder, the Special Counsel
and the Initial Purchasers, without charge, at least one (1) conformed copy of
the Registration Statement and any amendment thereto, including financial
statements but excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits (unless requested in writing
by such Holder, counsel or Initial Purchasers).
(g) Deliver to each selling Holder, the Special Counsel
and the Initial Purchasers in connection with any offering of Registrable
Securities, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such persons may reasonably request;
and the Company hereby consents to the use of such Prospectus or each amendment
or supplement thereto by each of the selling Holders of Registrable Securities
in connection with any offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable
Securities, to register or qualify or cooperate with the selling Holders and
the Special Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder reasonably
requests in writing; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action that
would subject it to general service of process in suits or to taxation in any
such jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by such
other governmental agencies or authorities within the United States (except as
may be required solely as a consequence of the nature of such selling Holder,
in which case the Company will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals) as
may be necessary to enable the selling Holder or Holders thereof to consummate
the disposition of such Registrable Securities.
(j) During any Selling Period (other than during a
Deferral Period), immediately upon the existence of any fact or the occurrence
of any event as a result of which a Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, or a Prospectus shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, promptly prepare and file a
post-effective amendment to each Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file
any
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other required document (such as a Current Report on Form 8-K) that would be
incorporated by reference into the Registration Statement so that the
Registration Statement shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and so that the
Prospectus will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, use their best efforts to
cause it to become effective as promptly as is practicable.
(k) Enter into such agreements and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection (i) make such
representations and warranties, subject to the ability of the Company to do so,
to the Holders of such Registrable Securities with respect to the business of
the Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if
any, in each case, in form, substance and scope as shall be reasonably
satisfactory to the Special Counsel and the Holders of a majority of the
Registered Securities being sold, and (ii) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority of the
Registrable Securities being sold and the Special Counsel to evidence the
continued validity of the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above. The plan of distribution of
the Registration Statement and the Prospectus included therein shall permit
resales of Registrable Securities to be made by selling securityholders through
brokers and dealers. However, the Company will not be obligated hereunder to
pay the costs and expenses of opinions of counsel of such selling
securityholders, or accountants' "cold comfort" letters and the officers and
directors of the Company will not be obligated hereunder to participate in
marketing efforts on behalf of such selling securityholders.
(l) If requested in connection with a disposition of
Registrable Securities pursuant to a Registration Statement, make available for
inspection by a representative of the Holders of Registrable Securities being
sold, and any Special Counsel or accountant retained by such selling Holders,
financial and other records, pertinent corporate documents and properties of
the Company and its subsidiaries, and cause the executive officers, directors
and employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, Special Counsel or accountant
in connection with such disposition; subject to reasonable assurances by each
such person that such information will only be used in connection with matters
relating to such Registration Statement; provided, however, that such persons
shall, upon the request of the Company, first agree in writing with the Company
that any information that is reasonably and in good faith designated by the
Company in writing as confidential at the time of delivery of such information
shall be kept confidential by such persons, unless (i) disclosure of such
information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to Federal securities laws in connection with the filing of any Registration
Statement or the use of any Prospectus referred to in this Agreement), (iii)
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such persons or (iv) such
information becomes available to any such person from a source other than the
Company and such source is not bound by a confidentiality agreement.
(m) Comply with all applicable rules and regulations of
the SEC and make generally available to its securityholders earning statements
(which need not be audited) satisfying the provisions
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of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act).
(n) Cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such denominations and
registered in such names as the Holders may request.
(o) Provide a CUSIP number for all Registrable Securities
not later than the effective date of the Registration Statement and provide the
Trustee and the transfer agent for the Common Stock with printed certificates
for the Registrable Securities which are in a form eligible for deposit with
the Depositary Trust Company.
(p) Cause all Underlying Common Stock covered by the
Registration Statement to be listed on each securities exchange or quotation
system on which the Company's Common Stock is then listed no later than the
date the Registration Statement is declared effective and, in connection
therewith, to the extent applicable, to make such filings under the Exchange
Act (e.g., the filing of a Registration Statement on Form 8-A) and to have such
filings declared effective thereunder.
(q) Cooperate and assist in any filings required to be
made with the National Association of Securities Dealers, Inc.
Section 4. Holder's Obligations. Each Holder agrees, by
acquisition of the Registrable Securities, that no Holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities
pursuant to a Registration Statement or to receive a Prospectus relating
thereto, unless such Holder has furnished the Company with the notice required
pursuant to Section 2(d) hereof (including the information required to
accompany such notice) and, promptly after the request by the Company, such
other information regarding such Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
The Company may exclude from such registration the Registrable Securities of
any Holder who does not furnish such information provided above for so long as
such information is not so furnished. Each Holder of Registrable Securities as
to which any Registration Statement is being effected agrees promptly to
furnish to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Holder not
misleading. Any sale of any Registrable Securities by any Holder shall
constitute a representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set forth in the
Prospectus delivered by such Holder in connection with such disposition, that
such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to such Holder or its plan of
distribution and that such Prospectus does not as of the time of such sale omit
to state any material fact relating to such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading.
Section 5. Registration Expenses. Subject to Section
3(k) hereof, all fees and expenses incident to the performance by the Company
of or compliance with this Agreement shall be borne by the Company whether or
not any of the Registration Statements become effective. Such fees and
expenses shall include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses (x) with respect to
filings required to be made with the National Association of Securities
Dealers, Inc. and (y) of compliance with federal and state securities or Blue
Sky laws (including, without limitation, fees and disbursements of Special
Counsel in connection with Blue Sky
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qualifications of the Registrable Securities under the laws of such United
States jurisdictions as the Holders of a majority of the Registrable Securities
being sold may designate), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depositary Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the Special
Counsel or the Holders of a majority of the Registrable Securities included in
any Registration Statement), (iii) messenger, telephone and delivery expenses,
(iv) reasonable fees and disbursements of counsel for the Company and the
Special Counsel in connection with the Shelf Registration (provided that the
Company shall not be liable for the fees and expenses of more than one separate
firm for all parties participating in any transaction hereunder), and (v)
Securities Act liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay the internal expenses of the
Company (including, without limitation, all salaries and expenses of officers
and employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Underlying Common Stock and the fees and expenses of any person, including
special experts, retained by the Company. Notwithstanding the provisions of
this Section 5, each seller of Registrable Securities shall pay all
registration expenses to the extent the Company is prohibited by applicable
Blue Sky laws from paying for or on behalf of such seller of Registrable
Securities.
Section 6. Indemnification.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless each Holder and each person, if any, who controls
any Holder (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) from and against all losses, liabilities,
claims, damages and expenses (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) (collectively, "Losses"), arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement or Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such Losses arise out of or based upon the information
relating to any Holder furnished to the Company in writing by such Holder
expressly for use therein; provided, that the Company shall not be liable to
any Holder of Registrable Securities (or any person controlling such Holder) to
the extent that any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus if either (A) (i) such Holder failed to send or
deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Holder to the person asserting the claim from
which such Losses arise and (ii) the Prospectus would have corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission, or (B) (x) such untrue statement or alleged untrue statement,
omission or alleged omission is corrected in an amendment or supplement to the
Prospectus and (y) having previously been furnished by or on behalf of the
Company with copies of the Prospectus as so amended or supplemented, such
Holder thereafter fails to deliver such Prospectus as so amended or
supplemented, with or prior to the delivery of written confirmation of the sale
of a Registrable Security to the person asserting the claim from which such
Losses arise. The Company shall also indemnify each broker-dealer
participating in the offering and sale of Registrable Securities and each
person who controls such person (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same extent and with
the same limitations as provided above with respect to the indemnification of
the Holders of Registrable Securities.
(b) Indemnification by Holder of Registrable Securities.
Each Holder agrees, and such agreement shall be evidenced by the Holder
delivering the notice described in Section 2(d) hereof,
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severally and not jointly to indemnify and hold harmless the Company, the
Company's directors, the Company's officers who sign a Registration Statement,
and each person, if any, who controls the Company (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act), from and
against all losses arising out of or based upon any untrue statement of a
material fact contained in any Registration Statement, Prospectus or
preliminary prospectus or arising out of or based upon any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information relating to such Holder
so furnished in writing by such Holder to the Company expressly for use in such
Registration Statement or Prospectus. In no event shall the liability of any
selling Holder of Registrable Securities hereunder be greater in amount than
the dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (a) the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Holders and all
persons, if any, who control any Holder within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, and (b) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, the Company's directors, the Company's officers who sign a
Registration Statement, and each person, if any, who controls the Company
within the meaning of either such Section, and that all such fees and expenses
shall be reimbursed as they are incurred. In the case of any such separate
firm for the Holders and such persons who control the Holders, such firm shall
be designated in writing by the Holders of a majority of Registerable
Securities sold pursuant to the Registration Statement. In the case of any
such separate firm for the Company, and such directors, officers, trustees and
control persons of the Company, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
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threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) Contribution. To the extent that the indemnification
provided for in this Section 6 is unavailable to an indemnified party under
Section 6(a) or 6(b) hereof in respect of any Losses or is insufficient to hold
such indemnified party harmless, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such Losses, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party or parties on the one hand
and of the indemnified party or parties on the other hand in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the initial placement (before
deducting expenses) of the Convertible Debentures pursuant to the Placement
Agreement. Benefits received by any Holder shall be deemed to be equal to the
value of receiving Registrable Securities that are registered under the
Securities Act. The relative fault of the Holders on the one hand and the
Company on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Holders or by the Company and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Holders' respective obligations to contribute
pursuant to this paragraph are several in proportion to the respective number
of Registrable Securities they have sold pursuant to a Registration Statement,
and not joint.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation or by any other method or allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the Losses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding this
Section 6(d), an indemnifying party that is a selling Holder of Registrable
Securities shall not be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities sold by
such indemnifying party and distributed to the public were offered to the
public exceeds the amount of any damages which such indemnifying party has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement
obligations of the Company and the Holders hereunder shall be in addition to
any liability the Company and the Holders may otherwise have hereunder, under
the Placement Agreement or otherwise. The provisions of this Section 6 shall
survive, notwithstanding any transfer of the Registrable Securities by any
Holder or any termination of this Agreement.
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The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or any person controlling any Holder, or the Company, the
Company's officers or the Company's directors or any person controlling the
Company and (iii) the sale of any Registrable Securities by any Holder.
Section 7. Information Requirements.
(a) The Company shall file the reports required to be
filed by it under the Securities Act and the Exchange Act, and if at any time
the Company is not required to file such reports, it will, upon the request of
any Holder of Registrable Securities, make publicly available other information
so long as necessary to permit sales of Registrable Securities pursuant to Rule
144 and Rule 144A under the Securities Act. The Company further covenants that
it will cooperate with any Holder of Registrable Securities and take such
further reasonable action as any Holder of Registrable Securities may
reasonably request (including, without limitation, making such reasonable
representations as any such Holder may reasonably request), all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 and Rule 144A under the Securities Act. Upon
the request of any Holder of Registrable Securities, the Company shall deliver
to such Holder a written statement as to whether it has complied with such
filing requirements. Notwithstanding the foregoing, nothing in this Section 7
shall be deemed to require the Company to register any of its securities under
any section of the Exchange Act.
(b) The Company shall file the reports required to be
filed by it under the Exchange Act and shall comply with all other requirements
set forth in the instructions to Form S-3 in order to allow it to be eligible
to file registration statements on Form S-3 in connection with secondary
offerings.
Section 8. Submission to Jurisdiction. The Company
irrevocably consents and agrees, for the benefit of the Holders, that any legal
action, suit or proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in connection with this
Agreement may be brought in the courts of the State of New York or the courts
of the United States located in The City of New York and hereby irrevocably
consents and submits to the non-exclusive jurisdiction of each such court in
personam, generally and unconditionally, with respect to any such action, suit
or proceeding for itself and in respect of its properties, assets and revenues.
The Company has irrevocably designated, appointed and
empowered CT Corporation System, as its designee, appointee and agent to
receive, accept and acknowledge for and on its behalf, and its properties,
assets and revenues, service of any and all legal process, summons, notices and
documents which may be served in any such action, suit or proceeding referred
to in the preceding paragraph of this Section 8 brought in any United States or
State court that may be made on such designee, appointee and agent in
accordance with legal procedures prescribed for such courts. Said designation
and appointment shall be irrevocable until the end of the Effectiveness Period,
provided, however, that if for any reason such designee, appointee and agent
hereunder shall cease to be available to act as such, the Company agrees to
designate a new designee, appointee and agent in The City of New York on the
terms and for the purposes of this Section 8 satisfactory to the Initial
Purchasers. The Company further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents out of any
of the aforesaid courts in any such action, suit, or proceeding by serving a
copy thereof upon the relevant agent for service of process referred to in this
Section 8 (whether or not the appointment of such agent shall for any reason
prove to be ineffective or such agent shall accept or acknowledge such service)
or by mailing copies thereof by registered or
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certified air mail, postage prepaid, to the Company at its address specified in
or designated pursuant to Section 9 of this Agreement. The Company agrees that
the failure of such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Nothing herein shall in any way be deemed to limit the ability of the Notice
Holders or the Holders of the Registrable Securities, to serve any such legal
process, summons, notices and documents in any other manner permitted by
applicable law or to obtain jurisdiction over the Company or bring actions,
suits or proceedings against the Company in such other jurisdictions, and in
such manner, as may be permitted by applicable law. The Company hereby
irrevocably and unconditionally waives, to the fullest extent permitted by law,
any objection which it may now, or until the end of the Effectiveness Period,
have to the laying of venue or any of the aforesaid actions, suits or
proceedings arising out of or in connection with this Agreement brought in the
United States Federal courts located in The City of New York or the courts of
the State of New York and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit
or proceeding brought in any such court has been brought in an inconvenient
forum.
The provisions of this Section 8 shall survive any termination
of this Agreement, in whole or in part.
Section 9. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of
its obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement, provided, that the sole damages payable for a violation
of the terms of this Agreement for which liquidated damages are expressly
provided pursuant to Section 2(e) hereof shall be such liquidated damages. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not, as
of the date hereof, and shall not, on or after the date of this Agreement,
enter into any agreement with respect to its securities which conflicts with
the rights granted to the Holders of Registrable Securities in this Agreement.
The Company represents and warrants that the rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with the rights
granted to the Holders of the Company's securities under any other agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of Holders of a majority of the then outstanding Underlying Common
Stock constituting Registrable Securities (with Holders of Convertible
Debentures deemed to be the Holders, for purposes of this Section, of the
number of outstanding shares of Underlying Common Stock into which such
Debentures are convertible or exchangeable). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders; provided, that
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the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing and shall be
deemed given (i) when made, if made by hand delivery, (ii) upon confirmation,
if made by telecopier or (iii) one (1) business day after being deposited with
a reputable next-day courier, postage prepaid, to the parties as follows
(provided that with respect to any notice of intention to sell given by a
Holder to the Company pursuant to Section 2(d) hereof in accordance with this
Section 9(d) which is given on or after December 24 of any year and on or prior
to January 1 of the next year, such notice shall only be deemed given upon the
earlier of actual receipt of such notice by the Company or the first Business
Day next succeeding such January 1):
(w) if to a Holder of Registrable Securities, at
the most current address given by such Holder to the Company
in accordance with the provisions of Section 9(e);
(x) if to the Company, to:
EVI, Inc.
0 Xxxx Xxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxx
Telecopy No.: (000) 000-0000
(y) if to the Initial Purchasers, to:
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation
Xxxxxx Brothers Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Equity Capital Markets
Telecopy No.: (000) 000-0000
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; and
(z) if to the Special Counsel, to:
Xxxxx & Xxxxx, L.L.P.
3000 One Shell Plaza
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: R. Xxxx Xxxxxxx
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to
the other persons identified in this Section 9(d) in writing
in accordance herewith.
(e) Owner of Registrable Securities. The Company will
maintain, or will cause its registrar and transfer agent to maintain, a
register with respect to the Registrable Securities in which all transfers of
Registrable Securities of which the Company has received notice will be
recorded. The Company may deem and treat the person in whose name Registrable
Securities are registered in such register of the Company as the owner thereof
for all purposes, including, without limitation, the giving of notices under
this Agreement.
(f) Approval of Holders. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company or its
affiliates (as such term is defined in Rule 405 under the Securities Act)
(other than the Initial Purchasers or subsequent Holders of Registrable
Securities if such subsequent Holders are deemed to be such affiliates solely
by reason of their holdings of such Registrable Securities) shall not be
counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(g) Successors and Assigns. Any person who purchases any
Registrable Securities from an Initial Purchaser shall be deemed, for purposes
of this Agreement, to be an assignee of such Initial Purchasers. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties and shall inure to the benefit of and be binding
upon each Holder of any Registrable Securities.
(h) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby, and the parties hereto
shall use their best efforts to find and employ an
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alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid, void or
unenforceable.
(l) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable
Securities sold pursuant to the Placement Agreement. Except as provided in the
Placement Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and undertakings
among the parties with respect to such registration rights.
(m) Attorneys' Fees. In any action or proceeding brought
to enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the
court, shall be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
(n) Further Assurances. Each of the parties hereto shall
use all reasonable efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things reasonably necessary, proper or
advisable under applicable law, and execute and deliver such documents and
other papers, as may be required to carry out the provisions of this Agreement
and the other documents contemplated hereby and consummate and make effective
the transactions contemplated hereby.
(o) Termination. This Agreement and the obligations of
the parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Sections 4, 5 or 6 hereof and
the obligations to make payments of and provide for liquidated damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
their terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
EVI, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx
Vice President and Chief Financial Officer
Accepted as of the date first
above written,
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXX & CO. INC.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx
Principal
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