Exhibit 4(b)
EDO CORPORATION
5.25% Convertible Subordinated Notes due 2007
REGISTRATION RIGHTS AGREEMENT
April 2, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
XX Xxxxx Securities Corporation
Xxxxxxxxx Xxxxxxxx, Inc.
As Representatives of the Initial Purchasers
Named in Schedule I to the Purchase Agreement
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
EDO Corporation, a New York corporation (the "Company"), proposes to
issue and sell (such issuance and sale, the "Initial Placement") to the several
parties named in Schedule I to the Purchase Agreement (the "Initial Purchasers")
for whom you (the "Representatives") are acting as representatives, upon the
terms set forth in a purchase agreement dated March 27, 2002 (the "Purchase
Agreement"), $125,000,000 aggregate principal amount (plus up to an additional
$12,800,000 aggregate principal amount to cover over-allotments, if any) of its
5.25% Convertible Subordinated Notes due 2007 (the "Notes").
The Notes will be convertible into Common Shares (as defined herein),
at the conversion price set forth in the Offering Memorandum (as defined
herein), as the same may be adjusted from time to time pursuant to the Indenture
(as defined herein).
As an inducement to you to enter into the Purchase Agreement and in
satisfaction of a condition to your obligations thereunder, the Company agrees
with you, (i) for your benefit and (ii) for the benefit of the holders from time
to time of the Notes and the Common Shares issuable upon conversion of the Notes
(including you), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized terms shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
"Affiliate" of any specified person means any other person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified
person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as used with respect to any person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such person, whether through the ownership of voting
securities or by agreement or otherwise.
"Broker-Dealer" means any broker or dealer registered as such under the
Exchange Act.
"Business Day" has the meaning set forth in the Indenture.
"Closing Date" means April 2, 2002.
"Common Shares" means the common shares, par value $1 per share, of the
Company, as it exists on the date of this Agreement and any other shares of
capital stock or other securities of the Company into which such Common Shares
may be reclassified or changed, together with any and all other securities which
may from time to time be issuable upon conversion of Notes.
"Damages Payment Date" means, with respect to the Notes or the Common
Shares issuable upon conversion of the Notes, as applicable, each Interest
Payment Date; and in the event that any Note, or portion thereof, is surrendered
for purchase by the Company and not withdrawn pursuant to a Fundamental Change
Offer (as defined in the Indenture), the relevant Fundamental Change Payment
Date (as defined in the Indenture), as the case may be, shall also be a Damages
Payment Date with respect to such Note, or portion thereof, unless the Indenture
provides that accrued and unpaid interest on the Note (or portion thereof) to be
repurchased, as the case may be, is to be paid to the person who was the Record
Holder thereof on a record date prior to such Fundamental Change Payment Date,
as the case may be, in which case the relevant Damages Payment Date shall be the
date on which interest is payable to such Record Holder.
"Default Rate" means the rate of interest payable with respect to
overdue amounts on the Notes pursuant to Section 4.1 of the Indenture.
"DTC" means The Depository Trust Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Final Maturity Date" means April 15, 2007.
"Holder" means a person who is a holder or beneficial owner (including
the Initial Purchasers) of any Notes or Common Shares issued upon conversion of
Notes; provided that, unless otherwise expressly stated herein, only registered
holders of Notes or Common Shares issued on conversion of the Notes shall be
counted for purposes of calculating any proportion of Holders entitled to take
any action or give notice pursuant to this Agreement.
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"Indenture" means the Indenture relating to the Notes dated as of April
2, 2002, between the Company and HSBC Bank USA, as trustee, as the same may be
amended from time to time in accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
"Interest Payment Date" shall mean April 15 and October 15.
"Liquidated Damages" has the meaning set forth in Section 2(e) hereof.
"Losses" has the meaning set forth in Section 5(d) hereof.
"Majority Holders" means the Holders of a majority of the then
outstanding aggregate principal amount of Notes registered under the Shelf
Registration Statement; provided that Holders of Common Shares issued upon
conversion of Notes shall be deemed to be Holders of the aggregate principal
amount of Notes from which such Common Shares were converted; and provided,
further, that Notes or Common Shares which have been sold or otherwise
transferred pursuant to the Shelf Registration Statement shall not be included
in the calculation of Majority Holders.
"Majority Underwriting Holders" means, with respect to any Underwritten
Offering, the Holders of a majority of the then outstanding aggregate principal
amount of Notes registered under the Shelf Registration Statement whose Notes
are or are to be included in such Underwritten Offering; provided that Holders
of Common Shares issued upon conversion of the Notes shall be deemed to be
Holders of the aggregate principal amount of Notes from which such Common Shares
were converted.
"Managing Underwriters" means the Underwriter or Underwriters that
shall administer an Underwritten Offering.
"NASD" has the meaning set forth in Section 3(i) hereof.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"Notice Holder" shall mean, on any date, any Holder of Transfer
Restricted Securities that has, pursuant to and in conformity with the terms of
this Agreement and the Indenture, delivered a completed and signed Notice and
Questionnaire to the Company on or prior to such date, together with such other
information as the Company shall reasonably request.
"Offering Memorandum" means the Final Memorandum as defined in the
Purchase Agreement.
"Person" has the meaning set forth in the Indenture.
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"Prospectus" means the prospectus included in the Shelf 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 under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Notes or Common Shares issuable upon conversion
of the Notes covered by such Shelf Registration Statement, and all amendments
and supplements to such prospectus, including all documents filed after the date
of such prospectus by the Company under the Exchange Act and incorporated or
deemed to be incorporated by reference in such prospectus.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Record Holder" means (i) with respect to any Damages Payment Date
which occurs on an Interest Payment Date, each person who is registered on the
books of the registrar as the holder of Notes at the close of business on the
record date with respect to such Interest Payment Date and (ii) with respect to
any Damages Payment Date relating to the Common Shares issued upon conversion of
the Notes, each person who is a holder of record of such Common Shares fifteen
days prior to the Damages Payment Date.
"Registration Default" has the meaning set forth in Section 2(e)
hereof.
"Representatives" has the meaning set forth in the preamble hereto.
"Rule 144" means Rule 144 (or any successor provision) under the Act.
"SEC" means the Securities and Exchange Commission.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Period" has the meaning set forth in Section 2(c)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company filed pursuant to the provisions of Section 2 hereof which covers
some or all of the Notes and the Common Shares issuable upon conversion of the
Notes, as applicable, on Form S-3 or on another appropriate form for an offering
to be made on a delayed or continuous basis pursuant to Rule 415 under the Act,
or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
or any additional registration statements filed because the Company could not
obtain the withdrawal of a stop order suspending the effectiveness of the Shelf
Registration Statement or pursuant to Section 2(b)(ii) hereof, in each case
including the Prospectus contained therein, all exhibits thereto and all
documents incorporated or deemed to be incorporated by reference therein.
"Suspension Period" has the meaning set forth in Section 2(d) hereof.
"Transfer Restricted Securities" means each Note and each Common Share
issuable or issued upon conversion of the Notes until the date on which such
Note or Common Share, as the case may be, (i) has been transferred pursuant to
the Shelf Registration Statement or
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another registration statement covering such Note or Common Share which has been
filed with the SEC pursuant to the Act, in either case after such registration
statement has become effective and while such registration statement is
effective under the Act, (ii) has been transferred pursuant to Rule 144 under
the Act (or any similar provision then in force) or (iii) may be sold or
transferred pursuant to Rule 144(k) under the Act (or any successor provision
then in force).
"Trustee" means the trustee with respect to the Notes under the
Indenture.
"Underwriter" means any underwriter of the Notes or Common Shares
issuable upon conversion of the Notes in connection with an offering thereof
under the Shelf Registration Statement.
"Underwritten Offering" means an offering in which the Notes or Common
Shares issued upon conversion of the Notes are sold to an Underwriter or with
the assistance of an Underwriter for reoffering to the public.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included," or "stated" in the Shelf
Registration Statement, any preliminary Prospectus or Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Shelf Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Shelf Registration Statement,
any preliminary Prospectus or Prospectus shall be deemed to mean and include any
document filed with the SEC under the Exchange Act, after the date of such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be, which is incorporated or deemed to be incorporated by reference therein.
2. Shelf Registration Statement.
(a) The Company shall prepare and file with the SEC within 60
days following the Closing Date the Shelf Registration Statement with
respect to resales of the Transfer Restricted Securities by the Holders
from time to time in accordance with the methods of distribution
designated by such Holders and set forth in such Shelf Registration
Statement (subject to Section 3(u) hereof) and thereafter shall use
their reasonable best efforts to cause such Shelf Registration
Statement to be declared effective under the Act within 150 days after
the Closing Date; provided that if any Notes are issued upon exercise
of the over-allotment option granted to the Initial Purchasers in the
Purchase Agreement and the date on which such Notes are issued occurs
after the Closing Date, the Company will take such steps, prior to the
effective date of the Shelf Registration Statement, to ensure that such
Notes and Common Shares issuable upon conversion of such Notes are
included in the Shelf Registration Statement on the same terms as the
Notes issued on the Closing Date. The Company shall supplement or amend
the Shelf Registration Statement if required by the rules, regulations
or instructions applicable to the registration form used by the Company
for the Shelf Registration Statement, or by the Act, the Exchange Act
or the SEC.
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(b) (i) Each Holder wishing to sell Transfer Restricted
Securities pursuant to the Shelf Registration Statement and
related Prospectus agrees to deliver the Notice and
Questionnaire, together with such information as the Company
shall reasonably request, to the Company at least five
business days prior to the effectiveness of the Shelf
Registration Statement. The Company shall take action to name
each Holder that is a Notice Holder as of the date that is 10
calendar days prior to the effectiveness of the Shelf
Registration Statement so that such Notice Holder is named as
a selling security holder in the Shelf Registration Statement
at the time of its effectiveness and is permitted to deliver
the Prospectus forming a part thereof as of such time to
purchasers of such Holder's Transfer Restricted Securities in
accordance with applicable law.
(ii) After the Shelf Registration Statement has
become effective, the Company shall, upon the request of any
Holder of Transfer Restricted Securities, promptly send a
Notice and Questionnaire to such Holder. From and after the
date on which the Shelf Registration Statement has become
effective, the Company shall (i) as promptly as is practicable
after the date a completed and signed Notice and Questionnaire
and such other information as the Company may reasonably
request is delivered to the Company by such holder, and in any
event within five Business Days after such date, prepare and
file with the SEC (x) a supplement to the Prospectus or, if
required by applicable law, a post-effective amendment to the
Shelf Registration Statement and (y) any other document
required by applicable law, so that the Holder delivering such
Notice and Questionnaire is named as a selling security holder
in the Shelf Registration Statement and is permitted to
deliver the Prospectus to purchasers of such Holder's Transfer
Restricted Securities in accordance with applicable law, and
(ii) use their reasonable best efforts to cause any such
post-effective amendment to become effective under the Act as
promptly as is practicable; provided, however, that if a
Notice and Questionnaire is delivered to the Company during a
Suspension Period, the Company shall not be obligated to take
the actions set forth in clauses (i) and (ii) until the
termination of such Suspension Period.
No Holder shall be entitled to be named as a selling shareholder in the
Shelf Registration Statement or to use the Prospectus forming a part
thereof for resales of Transfer Restricted Securities unless such
Holder is a Notice Holder.
(c) The Company shall use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective under the Act
in order to permit the Prospectus forming a part thereof to be usable,
subject to Section 2(d) hereof, by all Notice Holders until the
earliest of (i) the second anniversary of the Closing Date, (ii) the
date on which all the Notes and Common Shares issued or issuable upon
conversion of the Notes may be sold by non-affiliates ("affiliates" for
such purpose having the meaning set forth in Rule 144 under the Act) of
the Company pursuant to paragraph (k) of Rule 144 (or any successor
provision) promulgated by the SEC under the Act, (iii) the date as of
which all the Notes and Common Shares issued or issuable upon
conversion of the Notes have been transferred pursuant to Rule 144
under the Act (or any similar provision
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then in force) and (iv) such date as of which all the Notes and the
Common Shares issued or issuable upon conversion of the Notes have been
sold pursuant to the Shelf Registration Statement (in any such case,
such period being called the "Shelf Registration Period").
The Company will, (x) subject to Section 2(d), prepare and file with
the SEC such amendments and post-effective amendments to the Shelf Registration
Statement as may be necessary to keep the Shelf Registration Statement
continuously effective for the Shelf Registration Period, (y) subject to Section
2(d), cause the related Prospectus to be supplemented by any required
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Act and (z) comply in all material
respects with the provisions of the Act with respect to the disposition of all
securities covered by the Shelf Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Shelf Registration Statement as so amended or such
Prospectus as so supplemented.
(d) The Company may suspend the use of the Prospectus for a
period not to exceed 45 days in any three-month period or for three
periods not to exceed an aggregate of 90 days in any 12-month period
(the "Suspension Period") for valid business reasons, to be determined
by the Company in the sole reasonable judgment of the board of
directors of the Company (not including avoidance of the Company's
obligations hereunder), including, without limitation, the acquisition
or divestiture of assets, public filings with the SEC, pending
corporate developments and similar events; provided that the Company
promptly thereafter complies with the requirements of Section 3(j)
hereof, if applicable; provided, further, that the existence of a
Suspension Period will not prevent the occurrence of a Registration
Default or otherwise limit the obligation of the Company to pay
Liquidated Damages.
(e) If (i) the Shelf Registration Statement is not filed with
the SEC on or prior to 60 days after the Closing Date, (ii) the Shelf
Registration Statement has not been declared effective by the SEC
within 150 days after the Closing Date, or (iii) the Shelf Registration
Statement is filed and declared effective but shall thereafter cease to
be effective (without being succeeded immediately by a replacement
shelf registration statement filed and declared effective) or usable
for the offer and sale of Transfer Restricted Securities for a period
of time (including any Suspension Period) which shall exceed 90 days in
the aggregate in any 12 month period during the period beginning on the
Closing Date and ending on the second anniversary of the Closing Date
or, if later, the second anniversary of the last date on which any
Notes are issued upon exercise of the Initial Purchasers'
over-allotment option (each such event referred to in clauses (i)
through (iii), a "Registration Default"), the Company will pay
liquidated damages ("Liquidated Damages") to each Holder of Transfer
Restricted Securities that has complied with such Holder's obligations
under this Agreement. The amount of Liquidated Damages payable during
any period in which a Registration Default has occurred and is
continuing is the amount which is equal to one quarter of one percent
(25 basis points) per annum per $1,000 principal amount of Notes or
$2.50 per annum per 31.98976 Common Shares (subject to adjustment in
the event of a stock split, stock
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recombination, stock dividend and the like) constituting Transfer
Restricted Securities for the first 90 days during which a Registration
Default has occurred and is continuing and one-half of one percent (50
basis points) per annum per $1,000 principal amount of Notes or $5.00
per annum per 31.98976 Common Shares (subject to adjustment as set
forth above) constituting Transfer Restricted Securities for any
additional days during which a Registration Default has occurred and is
continuing (in each case subject to further adjustment from time to
time in the event of a stock split, stock recombination, stock dividend
and the like), it being understood that all calculations pursuant to
this and the preceding sentence shall be carried out to five decimals.
Following the cure of each Registration Default, Liquidated Damages
will cease to accrue with respect to such Registration Default (it
being understood that (x) a Registration Default under clause (i) above
shall be cured on the date that the Shelf Registration Statement is
filed with the SEC, (y) a Registration Default under clause (ii) above
shall be cured on the date that the Shelf Registration Statement is
declared effective by the SEC and (z) a Registration Default under
clause (iii) above shall be cured on the date the Shelf Registration
Statement is declared effective or useable). Liquidated Damages shall
cease to accrue in respect of any Transfer Restricted Security when it
shall cease to be such. All accrued Liquidated Damages shall be paid by
wire transfer of immediately available funds or by federal funds check
by the Company on each Damages Payment Date and Liquidated Damages will
be calculated on the basis of a 360-day year consisting of twelve
30-day months and the actual number of days elapsed in any partial
month. 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 by reason of a Registration
Default.
(f) All of the Company's obligations set forth in the
preceding paragraph which are outstanding or exist with respect to any
Transfer Restricted Security at the time such security ceases to be a
Transfer Restricted Security shall survive until such time as all such
obligations with respect to such security shall have been satisfied in
full.
(g) As promptly as practicable after the occurrence or the
termination of a Registration Default, the Company shall give the
Trustee, in the case of notice with respect to the Notes, and the
transfer and paying agent for the Common Shares, in the case of notice
with respect to Common Shares issued or issuable upon conversion of the
Notes, notice of such commencement or termination, of the obligation to
pay Liquidated Damages with regard to the Notes and Common Shares and
the amount thereof, and of the event giving rise to such commencement
or termination (such notice to be contained in an Officers' Certificate
(as such term is defined in the Indenture)).
(h) All Notes which are purchased or otherwise acquired by the
Company or any of its subsidiaries or affiliates (as defined in Rule
144 (or any successor provision) under the Act) prior to the Final
Maturity Date shall be delivered to the Trustee for cancellation and
the Company may not hold or resell such Notes or issue any new Notes to
replace any such Notes or any Notes that any Holder has converted
pursuant to the Indenture.
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3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall:
(i) furnish to the Representatives, prior to the
filing thereof with the SEC, a copy of the Shelf Registration
Statement, and each amendment thereof, and a copy of any
Prospectus, and each amendment or supplement thereto
(excluding amendments caused by the filing of a report under
the Exchange Act), and shall use its reasonable best efforts
to reflect in each such document, when so filed with the SEC,
such comments as the Representatives reasonably and promptly
propose; and
(ii) include information regarding the Notice Holders
and the methods of distribution they have designated for their
Transfer Restricted Securities provided to the Company in
Notice and Questionnaires as necessary to permit such
distribution by the methods specified therein.
(b) Subject to Section 2(d), the Company shall ensure that (i)
each of the Shelf Registration Statement and any amendment thereto and
any Prospectus forming a part thereof and any amendment or supplement
thereto comply in all material respects with the Act and the rules and
regulations thereunder, (ii) each of the 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 a part of the
Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation with
respect to information with respect to any Underwriter or any Holder
required to be included in the Shelf Registration Statement or
Prospectus pursuant to the Act or the rules and regulations thereunder
and which information is included therein in reliance upon and in
conformity with information furnished to the Company in writing by such
Underwriter or Holder.
(c) The Company, as promptly as reasonably practicable, shall
advise the Representatives and each Notice Holder and, if requested by
the Representatives or any such Notice Holder, shall confirm such
advice in writing:
(i) when the Shelf Registration Statement and any
amendment thereto has been filed with the SEC and when the
Shelf Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the SEC following
effectiveness of the Shelf Registration Statement for
amendments or supplements to the Shelf Registration Statement
or the Prospectus or for additional information (other than
any such request relating to a review of the Company's
Exchange Act filings);
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(iii) of the determination by the Company that a
post-effective amendment to the Shelf Registration Statement
would be appropriate;
(iv) of the commencement or termination of (but not
the nature of or details concerning) any Suspension Period;
(v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Transfer Restricted Securities included
in the Shelf Registration Statement for sale in any
jurisdiction or the initiation or threat of any proceeding for
such purpose;
(vii) of the happening of (but not the nature of or
details concerning) any event that requires the making of any
changes in the Shelf Registration Statement or the Prospectus
so that, as of such date, the statements therein are not
misleading and the Shelf Registration Statement or the
Prospectus, as the case may be, does not include 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 case of the Prospectus, in light of
the circumstances under which they were made) not misleading;
and
(viii) of the Company's suspension of the use of the
Prospectus as a result of any of the events or circumstances
described in paragraphs (ii) through (vii) above, and of the
termination of any such suspension.
(d) The Company shall use its reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of the
Shelf Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Transfer
Restricted Securities for offer or sale in any jurisdiction at the
earliest possible time.
(e) The Company shall promptly furnish to each Notice Holder,
without charge, at least one copy of the Shelf Registration Statement
and any post-effective amendment thereto, including all exhibits
(including those incorporated by reference), financial statements and
schedules.
(f) The Company shall, during the Shelf Registration Period,
promptly deliver to each Initial Purchaser, each Notice Holder and any
sales or placement agent or underwriters acting on their behalf,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in the Shelf Registration Statement
(excluding documents incorporated by reference), and any amendment or
supplement thereto, as such person may reasonably request; and, except
as provided in Sections 2(d) and 3(s) hereof, the Company consent to
the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders in connection with the offering and sale
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of the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto during the Shelf Registration Period.
(g) Prior to any offering of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, the Company shall
cooperate with the Notice Holders and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Transfer Restricted
Securities for offer and sale, under the securities or blue sky laws of
such jurisdictions within the United States as any such Notice Holders
reasonably request and shall maintain such qualification in effect so
long as required and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the
Transfer Restricted Securities covered by such Shelf Registration
Statement; provided, however, that the Company will not be required to
(A) qualify generally to do business as a foreign corporation or as a
dealer in securities in any jurisdiction where it is not then so
qualified or to (B) take any action which would subject it to service
of process or taxation in any such jurisdiction where it is not then so
subject.
(h) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing
Transfer Restricted Securities sold pursuant to the Shelf Registration
Statement free of any restrictive legends and in such denominations
permitted by the Indenture and registered in such names as Holders may
request at least three Business Days prior to settlement of sales of
Transfer Restricted Securities pursuant to such Shelf Registration
Statement.
(i) Subject to the exceptions contained in (A) and (B) of
Section 3(g) hereof, the Company shall use its reasonable best efforts
to cause the Transfer Restricted Securities covered by the Shelf
Registration Statement to be registered with or approved by such other
federal, state and local governmental agencies or authorities, and
self-regulatory organizations in the United States as may be necessary
to enable the Holders to consummate the disposition of such Transfer
Restricted Securities as contemplated by the Shelf Registration
Statement; without limitation to the foregoing, the Company shall make
all filings and provide all such information as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") in
connection with the offering under the Shelf Registration Statement of
the Transfer Restricted Securities (including, without limitation, such
as may be required by NASD Rule 2710 or 2720), and shall cooperate with
each Holder in connection with any filings required to be made with the
NASD by such Holder in that regard.
(j) Upon the occurrence of any event described in Section
3(c)(vii) hereof, the Company shall as soon as reasonably practicable
prepare and file with the SEC a post-effective amendment to the Shelf
Registration Statement or an amendment or supplement to the related
Prospectus or any document incorporated therein by reference or file a
document which is incorporated or deemed to be incorporated by
reference in such Shelf Registration Statement or Prospectus, as the
case may be, so that, as thereafter delivered to purchasers of the
Transfer Restricted Securities included therein, the Shelf Registration
Statement and the Prospectus, in each case as then amended or
supplemented, will not include an untrue statement of a material fact
or omit to state any material fact required to
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be stated therein or necessary in order to make the statements therein
(in the case of the Prospectus in light of the circumstances under
which they were made) not misleading and, in the case of a
post-effective amendment, use its reasonable best efforts to cause it
to become effective as promptly as practicable; provided that the
Company's obligations under this paragraph (j) shall be suspended if
the Company has suspended the use of the Prospectus in accordance with
Section 2(d) hereof and given notice of such suspension to Notice
Holders, it being understood that the Company's obligations under this
Section 3(j) shall be automatically reinstated at the end of such
Suspension Period.
(k) The Company shall use its reasonable best efforts to
provide, on or prior to the first Business Day following the effective
date of the Shelf Registration Statement hereunder (i) a CUSIP number
for the Transfer Restricted Securities registered under such Shelf
Registration Statement and (ii) global certificates for such Transfer
Restricted Securities to the Trustee, in a form eligible for deposit
with DTC.
(l) The Company shall use its best efforts to comply with all
applicable rules and regulations of the SEC and shall make generally
available to its security holders as soon as practicable but in any
event not later than 50 days after the end of a 12-month period (or 105
days, if such period is a fiscal year) after (i) the effective date of
the Shelf Registration Statement, (ii) the effective date of each
post-effective amendment to the Shelf Registration Statement, and (iii)
the date of each filing by the Company with the SEC of an Annual Report
on Form 10-K that is incorporated by reference or deemed to be
incorporated by reference in the Shelf Registration Statement, an
earnings statement satisfying the provisions of Section 11(a) of the
Act and Rule 158 promulgated by the SEC thereunder.
(m) The Company shall use its reasonable best efforts to cause
the Indenture to be qualified under the TIA (as defined in the
Indenture) in a timely manner.
(n) The Company shall cause all Common Shares issued or
issuable upon conversion of the Notes to be listed on each securities
exchange or quotation system on which the Common Shares are then listed
no later than the date the Shelf Registration Statement is declared
effective and, in connection therewith, to make such filings as may be
required under the Exchange Act and to have such filings declared
effective as and when required thereunder.
(o) The Company may require each Holder of Transfer Restricted
Securities to be sold pursuant to the Shelf Registration Statement to
furnish to the Company such information regarding the Holder and the
distribution of such Transfer Restricted Securities sought by the
Notice and Questionnaire and such additional information as may, from
time to time, be required by the Act and the rules and regulations
promulgated thereunder, and the obligations of the Company to any
Holder hereunder shall be expressly conditioned on the compliance of
such Holder with such request.
(p) The Company shall, if reasonably requested, use its
reasonable best efforts to promptly incorporate in a Prospectus
supplement or post-effective amendment to the Shelf Registration
Statement (i) such information as the Majority Holders provide or, if
-12-
Transfer Restricted Securities are being sold in an Underwritten
Offering, as the Managing Underwriters or the Majority Underwriting
Holders reasonably agree should be included therein and provide to the
Company in writing for inclusion in the Shelf Registration Statement or
Prospectus, and (ii) such information as a Holder may reasonably
provide from time to time to the Company in writing for inclusion in a
Prospectus or the Shelf Registration Statement concerning such Holder
and the distribution of such Holder's Transfer Restricted Securities
and, in either case, shall make all required filings of such Prospectus
supplement or post-effective amendment promptly after being notified in
writing 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 action under this Section 3(p) that is not, in the
opinion of counsel for the Company, in compliance with applicable law.
(q) The Company, subject to the provisions of paragraph (u) of
this Section 3, shall enter into such customary agreements (including
underwriting agreements) and take all other appropriate actions as may
be reasonably requested in order to expedite or facilitate the
registration or the disposition of the Transfer Restricted Securities,
and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification and contribution
provisions and procedures no less favorable than those set forth in
Section 5 (or such other reasonable and customary provisions and
procedures mutually acceptable to the Company and the Majority
Underwriting Holders and the Managing Underwriters, if any, with
respect to all parties to be indemnified pursuant to Section 5). The
plan of distribution in the Shelf Registration Statement and the
Prospectus included therein shall permit resales of Transfer Restricted
Securities to be made by selling security holders through underwriters,
brokers and dealers, and shall also include such other information as
the Representatives may reasonably request.
(r) In connection with an Underwritten Offering, if any, the
Company shall, if reasonably requested in writing by Majority Holders,
by Majority Underwriting Holders or by the Managing Underwriter:
(i) make reasonably available for inspection during
normal business hours by any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and
any attorney, accountant or other agent retained by any such
Underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company
and their subsidiaries as is customary for due diligence
examinations in connection with public offerings; provided,
however, if the foregoing inspection would otherwise disrupt
the Company's conduct of its business, such inspection shall,
to the greatest extent practicable, be coordinated by the
Managing Underwriter on behalf of the other parties;
(ii) cause the Company's officers, directors,
employees, accountants and auditors to supply, during normal
business hours, all relevant information reasonably requested
by any such Underwriter, attorney, accountant or agent in
connection with any such Shelf Registration Statement as is
customary for similar due diligence examinations; provided,
however, that any information that is designated in writing by
the Company, in good faith, as confidential at the time of
-13-
delivery of such information shall be kept confidential by the
Holders or any such Underwriter, attorney, accountant or
agent, unless disclosure thereof is made in connection with a
court, administrative or regulatory proceeding or required by
law, or such information has become available to the public
generally through the Company or through a third party without
an accompanying obligation of confidentiality; provided,
further, that if the foregoing information gathering would
otherwise disrupt the Company's conduct of its business, such
information gathering shall, to the greatest extent
practicable, be coordinated by the Managing Underwriter on
behalf of the other parties;
(iii) deliver a letter, addressed to the selling
Holders and the Underwriters, if any, in which the Company
shall make such representations and warranties in form,
substance and scope as are customarily made by issuers to
Underwriters;
(iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions, in form, scope
and substance, shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling
Holder and the Underwriters, if any, covering such matters as
are customarily covered in opinions requested in public
offerings;
(v) obtain "cold comfort" letters and updates thereof
from the current and former independent certified public
accountants of the Company (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 and financial data are, or are
required to be, included in the Shelf Registration Statement),
addressed to each selling Holder (provided such Holder
furnishes the accountants, prior to the date such "cold
comfort" letter is required to be delivered, with such
representations as the accountants customarily require in
similar situations) and the Underwriters, if any, in customary
form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders or, in the
case of an Underwritten Offering, the Majority Underwriting
Holders, and the Managing Underwriters, if any, including
those to evidence compliance with Section 3(j) and with any
customary conditions contained in the underwriting agreement
or other agreement entered into by the Company.
The foregoing actions set forth in clauses (iii),
(iv), (v) and (vi) of this Section 3(r) shall be performed at
(A) the effectiveness of such Shelf Registration Statement and
each post-effective amendment thereto and (B) the closing
under any underwriting or similar agreement as and to the
extent required thereunder.
If any of the Transfer Restricted Securities covered
by the Shelf Registration Statement are to be sold in an
Underwritten Offering, the underwriter
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or underwriters and manager or managers that will manage each
such offering will be selected by the Majority Holders of such
Transfer Restricted Securities included in such offering and
shall be reasonably acceptable to the Company. No Holder of
Transfer Restricted Securities may participate in any
Underwritten Offering unless such Holder (a) agrees to sell
such Holder's Transfer Restricted 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 arrangements and other
documents required under the terms of such underwriting
agreements. The Holders of Transfer Restricted Securities that
participate in an Underwritten Offering shall be required to
pay on a ratable basis all registration expenses associated
with or arising as a result of the Underwritten Offering,
payable by such Holders pursuant to Section 4 hereof.
(s) Each Notice Holder agrees that, upon receipt of notice of
the happening of an event described in Sections 3(c)(ii) through and
including 3(c)(vii), each Holder shall forthwith discontinue (and shall
cause its agents and representatives to discontinue) disposition of
Transfer Restricted Securities and will not resume disposition of
Transfer Restricted Securities until such Holder has received copies of
an amended or supplemented Prospectus contemplated by Section 3(j)
hereof, or until such Holder is advised in writing by the Company that
the use of the Prospectus may be resumed or that the relevant
Suspension Period has been terminated, as the case may be; provided
that the foregoing shall not prevent the sale, transfer or other
disposition of Transfer Restricted Securities by a Notice Holder in a
transaction which is exempt from, or not subject to, the registration
requirements of the Act, so long as such Notice Holder does not and is
not required to deliver the applicable Prospectus or the Shelf
Registration Statement in connection with such sale, transfer or other
disposition, as the case may be; and provided, further, that the
provisions of this Section 3(s) shall not prevent the occurrence of a
Registration Default or otherwise limit the obligation of the Company
to pay Liquidated Damages.
(t) In the event that any Broker-Dealer shall underwrite any
Notes or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of
the NASD Rules) thereof, whether as a Holder of such Transfer
Restricted Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Company
shall assist such Broker-Dealer in complying with the NASD Rules,
including, without limitation, by:
(i) if the NASD Rules shall so require, engaging a
"qualified independent underwriter" (as defined in the NASD
Rules) to participate in the preparation of the Shelf
Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the
offering contemplated by the Shelf Registration Statement is
an Underwritten Offering or is made through a placement or
sales agent, to recommend the price of such Transfer
Restricted Securities;
-15-
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
Underwriters provided in Section 5 hereof; and
(iii) providing such information to such
Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of the NASD
Rules.
(u) Anything herein to the contrary notwithstanding, the
Company will not be required to pay the costs and expenses of, or to
participate in the marketing or "road show" presentations of, or agree
to indemnification or contribution agreements with respect to, more
than one Underwritten Offering initiated at the request of the Holders
of Notes or Common Shares issued or issuable upon conversion of the
Notes, or to effect more than one Underwritten Offering at the request
of such Holders. The Company will not be required to pay the costs and
expenses of, or to participate in the marketing or "road show"
presentations of, an Underwritten Offering unless Holders of at least
the Minimum Amount (as defined below) of Notes and/or Common Shares
issued or issuable on conversion of the Notes have requested that such
Notes and/or Common Shares be included in such an Underwritten
Offering. For purposes of this Agreement, the "Minimum Amount" means
50% of the aggregate principal amount of Notes originally issued under
the Indenture; provided that, for purposes of computing the Minimum
Amount, Holders of Common Shares issued upon conversion of Notes shall
be deemed to be holders of the aggregate principal amount of Notes
which were converted into those Common Shares. Only Holders of Notes or
Common Shares issued or issuable upon conversion of the Notes which are
Transfer Restricted Securities shall be entitled to include such Notes
or Common Shares in an Underwritten Offering and only Transfer
Restricted Securities shall be included in the computation of the
Minimum Amount. The Underwritten Offering initiated by Holders as
aforesaid shall include both Notes and Common Shares if so requested by
the Holders. Upon receipt by the Company, from Holders of at least the
Minimum Amount of Notes and/or Common Shares issued or issuable upon
conversion of the Notes, of a request for an Underwritten Offering, the
Company will, within 10 days thereafter, cause the Company to mail
notice to all Holders of Notes and Common Shares issued upon conversion
of the Notes stating that: (i) the Company has received a request from
the Holders of the requisite amount of Notes and/or Common Shares
issued or issuable on conversion of the Notes to effect an Underwritten
Offering on behalf of such Holders; (ii) under the terms of this
Agreement, all Holders of Notes and Common Shares issued or issuable
upon conversion of the Notes which are Transfer Restricted Securities
may include their Notes and Common Shares in such Underwritten
Offering, subject to the terms and conditions set forth in this
Agreement and subject to the right of the Managing Underwriters to
reduce, in light of market conditions and other similar factors, the
aggregate principal amount of Notes and number of Common Shares
included in such Underwritten Offering; (iii) all Holders electing to
include Notes or Common Shares in such Underwritten Offering must
notify the Company in writing of such election (the "Election"), and
setting forth an address and facsimile number to which such written
elections may be sent and the deadline (which shall be 12:00 midnight
on the 10th calendar day after such notice is mailed to Holders or, if
not a Business Day, the next succeeding Business Day (the "Deadline"))
by which such elections must be received by the Company; and (iv)
setting forth such other
-16-
instructions as shall be necessary to enable Holders to include their
Notes and Common Shares in such Underwritten Offering. No Holder shall
be entitled to participate in an Underwritten Offering unless such
Holder notifies the Company of such Election by the Deadline.
Notwithstanding anything to the contrary contained herein, if the
Managing Underwriters for an Underwritten Offering to be effected
pursuant to this Section 3(u) advise the Holders of the Notes and
Common Shares to be included in such Underwritten Offering that,
because of aggregate principal amount of Notes and/or number of Common
Shares that such Holders have requested be included in the Underwritten
Offering, the success of the offering would likely be materially
adversely affected by the inclusion of all of the Notes and Common
Shares requested to be included, then the principal amount of Notes and
the number of Common Shares to be offered for the accounts of Holders
shall be reduced pro rata, according to the aggregate principal amount
of Notes and number of Common Shares, respectively, requested for
inclusion by each such Holder, to the extent necessary to reduce the
size of the offering to the size recommended by the Managing
Underwriter. Notwithstanding anything to the contrary contained herein,
neither the Company nor any Person, other than a Holder of Notes or
Common Shares issued or issuable upon conversion of the Notes and only
with respect to its Transfer Restricted Securities, shall be entitled
to include any securities in the Underwritten Offering.
4. Registration Expenses. The Company shall bear all expenses incurred
in connection with the performance of its obligations under Sections 2 and 3
hereof and shall reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders or, failing such
designation, by the Initial Purchasers, to act as counsel for the Holders in
connection therewith. Notwithstanding the provisions of this Section 4, each
Holder shall bear the expense of any broker's commission, agency fee or
Underwriter's discount or commission and, solely in the case of an Underwritten
Offering, the participating Holders shall be responsible for the fees and
disbursements of their counsel, if any, incurred in connection with such
Underwritten Offering.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Holder of Transfer Restricted Securities covered by the Shelf
Registration Statement (including each of the Initial Purchasers), the
directors, officers, employees and agents of each such Holder and each
person who controls any such Holder within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state law
or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein 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, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses
-17-
reasonably incurred by any of them in connection with defending any
such loss, claim, damage, liability or action; provided, however, that
the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon
(A) any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
any such Holder or any Initial Purchaser specifically for inclusion
therein, (B) use of the Shelf Registration Statement or the related
Prospectus during a period when use of such Prospectus has been
suspended pursuant to Section 2(d) or Section 3(s) hereof; provided, in
each case, that Holders received prior notice of such suspension, or
(C) if the Holder fails to deliver a Prospectus, as then amended or
supplemented, provided that the Company shall have delivered to such
Holder such Prospectus, as then amended or supplemented. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Holder of Transfer Restricted Securities covered by
the Shelf Registration Statement (including the Initial Purchasers)
severally and not jointly agrees to indemnify, hold harmless and
reimburse
(i) the Company,
(ii) each of its directors,
(iii) each of its officers, and
(iv) each person who controls the Company within the
meaning of either the Act or the Exchange Act to the same
extent as the foregoing indemnity from the Company to each
such Holder,
but only with reference to written information relating to such Holder
furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement shall be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 5, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it was not
otherwise notified of such action and such failure results in the
forfeiture by the indemnifying party of any rights or defenses. 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
-18-
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ 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 not be
permissable under the applicable standards of professional
responsibility;
(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 and that representation of the indemnified
party by counsel chosen by the indemnifying party would be
inappropriate due to actual or potential differing interests
among the parties represented by such counsel;
(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 authorize the
indemnified party to employ separate counsel at the expense of
the indemnifying party.
It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition
to any local counsel) at any one time for all such indemnified party or
parties. Neither an indemnifying party nor an indemnified party will,
without the prior written consent of the other parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not such other parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of such other parties from all liability arising
out of such claim, action, suit or proceeding. An indemnifying party
shall not be liable for any losses, claims, damages or liabilities by
reason of any settlement of any action or proceeding effected without
such indemnifying party's prior written consent, which consent will not
be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 5 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party shall have an obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses"), as incurred, to which such
indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by such indemnifying
-19-
party, on the one hand, and such indemnified party, on the other hand,
from the Initial Placement and any sales of Transfer Restricted
Securities under the Shelf Registration Statement; provided, however,
that in no case shall the Initial Purchasers be responsible, in the
aggregate, for any amount in excess of the purchase discount or
commission applicable to the Notes, as set forth in the Purchase
Agreement. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault
of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or
omissions which 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). Benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts
and commissions received in connection with the Initial Placement, and
benefits received by any other Holders shall be deemed to be equal to
the value of receiving Transfer Restricted Securities registered under
the Act. Benefits received by any Underwriter shall be deemed to be
equal to the total underwriting discounts and commissions, as set forth
on the cover page of the Prospectus forming a part of the Shelf
Registration Statement which resulted in such Losses. Relative fault
shall be determined by reference to whether any untrue statement or
omission or alleged untrue statement or omission relates to information
provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties agree
that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not
take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 5(d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 5, each person who controls a Holder within the meaning of
either the Act or the Exchange Act and each director, officer, employee
and agent of such Holder shall have the same rights to contribution as
such Holder, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who signed the Shelf Registration Statement and each director
of the Company shall have the same rights to contribution as the
Company, and each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each officer and director of
each Underwriter shall have the same rights to contribution as such
Underwriter, subject in each case to the applicable terms and
conditions of this Section 5 (d).
(e) The provisions of this Section 5 will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Holder, any Underwriter, the Company, or any of the officers, directors
or controlling persons referred to in Section 5 hereof, and will
survive the sale by a Holder of Transfer Restricted Securities covered
by the Shelf Registration Statement.
6. Miscellaneous.
-20-
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into nor shall it, on or after the date hereof,
enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of the Majority Holders;
provided that with respect to any matter that directly or indirectly
affects the exclusive rights of the Initial Purchasers hereunder, the
Company shall obtain the written consent of each of the Initial
Purchasers against which such amendment, qualification, supplement,
waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from
the provisions hereof with respect to a matter that relates exclusively
to the rights of Holders whose Transfer Restricted Securities are being
sold pursuant to the Shelf Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given
by the Majority Holders, determined on the basis of the Transfer
Restricted Securities being sold rather than registered under such
Shelf Registration Statement.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to the Representatives, initially at its
address set forth in the Purchase Agreement;
(ii) if to any other Holder, at the most current
address of such Holder maintained by the Registrar under the
Indenture or the transfer agent for the Common Shares
(provided that while the Notes are in book-entry form, notice
to the Trustee shall serve as notice to the Holders), or, in
the case of the Notice Holder, the address set for in its
Notice and Questionnaire; and
(iii) if to the Company, initially at the Company's
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and
when sent, if sent by first-class mail or telecopier.
The Initial Purchasers or the Company by notice to the other
may designate additional or different addresses for subsequent notices
or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including, without the need for an express assignment or
any consent by the Company thereto, subsequent Holders. The Company
hereby agrees to extend the benefits of this Agreement to any Holder
and Underwriter and any such Holder and Underwriter may specifically
enforce
-21-
the provisions of this Agreement as if an original party hereto. In the
event that any other person shall succeed to the Company under the
Indenture, then such successor shall enter into an agreement, in form
and substance reasonably satisfactory to the Representatives, whereby
such successor shall assume all of the Company's obligations, as the
case may be, under this Agreement.
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Notes or the Common Shares issuable upon conversion of the Notes is
required hereunder, Notes or Common Shares issued upon conversion of
the Notes held by the Company or its affiliates (other than subsequent
Holders of Notes or the Common Shares issued upon conversion of the
Notes if such subsequent Holders are deemed to be affiliates solely by
reason of their holdings of such securities) shall not be counted in
determining whether such consent or approval was given by the Holders
of such required percentage.
(j) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Shelf
Registration Period, except for any liabilities or obligations under
Section 2(e), 4 or 5 to the extent arising prior to the end of the
Shelf Registration Period.
[signature page follows]
-22-
Please confirm that the foregoing correctly sets forth the agreement
among the Company and you.
Very truly yours,
EDO CORPORATION
By: /s/Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
Title: President and CEO
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXXX XXXXX XXXXXX INC.
XX XXXXX SECURITIES CORPORATION
XXXXXXXXX XXXXXXXX, INC.
By: XXXXXXX XXXXX BARNEY INC.
By: /s/Xxxx X. Xxxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
FORM OF SELLING SECURITY HOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of 5.25% Convertible Subordinated
Notes due 2007 (the "Notes") of EDO Corporation ("EDO" or the "Company") or
common shares of the Company issuable upon conversion of the Notes (together
with the Notes, the "Registrable Securities") of the Company understands that
the Company has filed or intends to file with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (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 Registrable
Securities in accordance with the terms of the Registration Rights Agreement
(the "Registration Rights Agreement") dated as of April 2, 2002 between the
Company and the initial purchasers named therein. The Registration Rights
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms not otherwise defined herein shall have the meaning
ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions as described
below). Beneficial owners that do not complete this Notice and Questionnaire and
deliver it to the Company as provided below will not be named as selling
securityholders in the prospectus and therefore will not be permitted to sell
any Registrable Securities pursuant to the Shelf Registration Statement.
Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Upon receipt of a completed
Notice and Questionnaire from a beneficial owner following the effectiveness of
the Shelf Registration Statement, the Company will, as promptly as practicable
but in any event within five business days of such receipt, file such amendments
to the Shelf Registration Statement or supplements to the related prospectus as
are necessary to permit such holder to deliver such prospectus to purchasers of
Registrable Securities.
Certain legal consequences may arise from being named as selling
securityholders in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under
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Item 3) pursuant to the Shelf Registration Statement. The undersigned, by
signing and returning this Notice and Questionnaire, understands that it will be
bound by the terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
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(b) Full legal name of Registered Holder (if not the same as (a) above)
through which Registrable Securities listed in (3) below are held:
(c) Full legal name of broker-dealer or other third party through which
Registrable Securities listed in (3) below are held:
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(d) Full legal name of DTC Participant (if applicable and if not the
same as (b) or (c) above) through which Registrable Securities listed
in (3) below are held:
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2. Address for Notices to Selling Securityholder:
Telephone:
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Fax:
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Contact Person
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3. Beneficial Ownership of Registrable Securities:
(a) Type and Principal Amount of Registrable Securities beneficially
owned:
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(b) CUSIP No(s). of such Registrable Securities beneficially owned:
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Unless otherwise indicated in the space provided below, all Notes and
all common shares listed in response to Item (3)(a) above, and all
common shares issuable upon conversion of the Notes listed in response
to Item (3)(a) above, will be included in the Shelf Registration
Statement. If the undersigned does not wish all such Notes or common
shares to be so included, please indicate below the principal amount or
the number of common shares to be included:
4. Beneficial Ownership of Company securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other
than the Registrable Securities listed above in Item (3).
(a) Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
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(b) CUSIP No(s). of such Other Securities beneficially owned:
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5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, 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.
State any exceptions here:
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6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above
in Item (3) pursuant to the Shelf Registration Statement only as
follows (if at all): Such Registrable Securities may be sold from time
to time directly by the undersigned or alternatively through
underwriters or broker-dealers or agents. If the Registrable Securities
are sold through underwriters or broker-dealers or agents, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. 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
sale, 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
Registrable 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 undersigned may enter into
hedging transactions with broker-dealers, which may in turn engage in
short sales of the 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. The Selling Securityholder may pledge or grant a
security interest in some or all of the Registrable Securities owned by
it and, if it defaults in the performance of its secured obligations,
the pledgees or secured parties may offer and sell the Registrable
Securities from time to time pursuant to the prospectus. The Selling
Securityholder also may transfer and donate shares in other
circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling securityholder for purposes
of the prospectus.
State any exceptions here:
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Note: In no event will such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the
prior agreement of the Company.
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules thereunder relating to stock manipulation, particularly Regulation
M thereunder (or any successor rules or regulations) and the provisions of the
Securities Act of 1933, as amended, relating to prospectus delivery, in
connection with any offering of Registrable Securities pursuant to the Shelf
Registration Statement. The undersigned agrees that neither it nor any person
acting on its behalf will engage in any transaction in violation of such
provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
set forth therein.
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Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholders against
liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
In the event any 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 will notify
the transferee(s) at the time of transfer of its rights and obligations under
this Notice and Questionnaire and the Registration Rights Agreement.
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By signing below, the undersigned 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 the
related prospectus. The undersigned understands that such information will be
relied upon by the Company without independent investigation or inquiry in
connection with the preparation or amendment of the Shelf Registration Statement
and the related prospectus.
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 authorized agent.
Beneficial Owner
By:
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Name:
Title:
Dated:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO
EDO CORPORATION
00 XXXX 00XX XXXXXX
XXX XXXX, XXX XXXX
ATTENTION: XXXXXXX X. XXXXX
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