EXHIBIT 4.4
4 3/4% CONVERTIBLE SUBORDINATED NOTES DUE 2006
REGISTRATION RIGHTS AGREEMENT
Dated as of November 26, 2001
by and among
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC., as the Company,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
OTHER INITIAL PURCHASERS
as Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of November 26, 2001 by and among The Profit Recovery Group
International, Inc., a Georgia corporation (the "Company") and the Initial
Purchasers (as hereinafter defined).
This Agreement is made pursuant to the Purchase Agreement, dated November
20, 2001, among the Company, as issuer of the 4 3/4% Convertible Subordinated
Notes due 2006 (the "Notes"), and the Initial Purchasers (the "Purchase
Agreement"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement to the Initial Purchasers and their respective
direct and indirect transferees. The execution and delivery of this Agreement is
a condition to the closing of the transactions contemplated by the Purchase
Agreement and each Holder (as defined below) by participating in a Registration
Statement agrees to be bound by this Agreement.
The parties hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Act: As defined in the final paragraph of this Section 1.
Affiliate: An affiliate of any specified person shall mean 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," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
Agreement: This Registration Rights Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in New York, New York are authorized or
obligated by law or executive order to close.
Closing Date: November 26, 2001.
Common Stock: Common stock, no par value, of the Company and any other
shares of common stock as may constitute "Common Stock" for purposes of the
Indenture as issuable or issued upon conversion of the Notes.
Company: The Profit Recovery Group International, Inc., a Georgia
corporation, and any successor corporation thereto.
Controlling Person: As defined in Section 6(a) hereof.
Damages Payment Date: Each of the semiannual interest payment dates
provided in the Notes.
Deferral Notice: As defined in Section 4(c) hereof.
Effectiveness Period: As defined in Section 2(a) hereof.
Effectiveness Target Date: The 150th day following the Closing Date.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Filing Date: The 60th day after the Closing Date.
Holder: Each owner of any Registrable Securities.
Indemnified Person: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of the date hereof, between the Company
and the Trustee, pursuant to which the Notes are to be issued, as the same may
be amended, modified or supplemented from time to time in accordance with the
terms thereof.
Initial Purchasers: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
each other initial purchaser as set forth in the Purchase Agreement.
Liquidated Damages: As defined in Section 3(a) hereof.
Notice and Questionnaire: The Notice and Questionnaire attached hereto as
Annex A.
Notes: As defined in the second paragraph hereof.
Notice Holder: On any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date.
Proceeding: An action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed in reliance upon Rule 430A), as
amended or supplemented by any prospectus supplement, with respect to the resale
of any of the Registrable Securities covered by such Registration Statement, and
all other amendments and supplements to any such prospectus, including
post-effective amendments, and all materials incorporated by reference or deemed
to be incorporated by reference, if any, in such prospectus.
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Purchase Agreement: As defined in the second paragraph hereof.
Record Holder: (i) with respect to any Damages Payment Date relating to any
shares of Common Stock as to which any such Liquidated Damages have accrued, the
registered Holder of such shares 15 days prior to the next succeeding Damages
Payment Date; and (ii) with respect to any Damages Payment Date relating to any
Notes as to which any such Liquidated Damages has accrued, the registered Holder
of such Notes 15 days prior to the next succeeding Damages Payment Date.
Registrable Securities: The Notes, the shares of Common Stock into which
such Notes are converted or convertible (including any shares of Common Stock
issued or issuable thereon upon any stock split, stock combination, stock
dividend or the like), upon original issuance thereof and at all times
subsequent thereto, and associated related rights, if any, until the earliest of
(i) the date on which the resale thereof has been effectively registered under
the Securities Act and disposed of in accordance with the Registration Statement
relating thereto, (ii) the date on which such security has been distributed to
the public pursuant to Rule 144 or is saleable pursuant to paragraph (k) of Rule
144 or (iii) the date on which it ceases to be outstanding.
Registration Default: As defined in Section 3(a) hereof.
Registration Statement: Any registration statement of the Company filed
with the SEC pursuant to the Securities Act that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement.
Requisite Information: As defined in Section 2(c) hereof.
Rule 144: Rule 144 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
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Rule 430A: Rule 430A promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
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.
Shelf Registration Statement: As defined in Section 2(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Transfer Agent: The registrar and transfer agent for the Company's Common
Stock.
Trustee: The trustee under the Indenture.
References herein to the term "Holders of a majority in interest of
Registrable Securities" or words to a similar effect shall mean, with respect to
any request, notice, demand, objection or other action by the Holders hereunder
or pursuant hereto (each, an "Act"), registered Holders of a number of shares of
then outstanding Common Stock constituting Registrable Securities and an
aggregate amount of then outstanding Notes constituting Registrable Securities,
such that the sum of such shares of Common Stock and the shares of Common Stock
issuable upon conversion of such Notes constitutes in excess of 50% of the sum
of all of the then outstanding shares of Common Stock constituting Registrable
Securities and the number of shares of Common Stock issuable upon conversion of
then outstanding Notes constituting Registrable Securities. For purposes of the
preceding sentence, Registrable Securities owned, directly or indirectly, by the
Company or its Affiliates shall be deemed not to be outstanding.
Section 2. Shelf Registration Statement.
(a) The Company, at its expense, agrees to file with the SEC as soon as
reasonably practicable after the Closing Date, but in no event later than the
Filing Date, a Registration Statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 covering all of the Registrable Securities
or separate Registration Statements for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 covering all of the Common Stock and Notes
constituting Registrable Securities, respectively (each such Registration
Statement filed by the Company pursuant to this Agreement a "Shelf Registration
Statement"). Each Shelf Registration Statement shall be on Form S-3 under the
Securities Act or another appropriate form selected by the Company permitting
registration of such Registrable Securities for resale by the Holders in the
manner or manners reasonably designated by Holders of a majority in interest of
Registrable Securities being sold. The Company shall not permit any securities
other than the Registrable Securities to be included in any Shelf Registration
Statement. The Company shall use all reasonable efforts to cause each Shelf
Registration Statement to be declared effective pursuant to the Securities Act
as soon as reasonably practicable following the filing thereof, but in any event
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not later than the Effectiveness Target Date after the Closing Date, and to keep
each Shelf Registration Statement continuously effective under the Securities
Act until the earlier of (i) the date that is two years after the date on which
all of the Notes are sold by the Company (including those sold pursuant to the
option granted to the Initial Purchasers in the Purchase Agreement) to the
Initial Purchasers (the "Effectiveness Period"), (ii) the date when the Holders
of Registrable Securities are able to sell all such securities immediately
without restriction pursuant to the volume limitation provisions of Rule 144
under the Securities Act or any successor rule thereto or otherwise, or (iii)
the sale pursuant to any Shelf Registration of all securities registered
thereunder.
(b) Supplements and Amendments. The Company shall use all reasonable
efforts to keep each Shelf Registration Statement continuously effective by
supplementing and amending the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration Statement, if required by the Securities Act or if
reasonably requested by the Holders of a majority in interest of the Registrable
Securities or by any underwriter of such Registrable Securities.
(c) Selling Securityholder Information. Each Holder wishing to sell
Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus agrees to deliver a Notice and Questionnaire that confirms such
Holder's agreement to be bound by the terms of this Agreement and includes such
information regarding it and the distribution of its Registrable Securities as
is required by law to be disclosed by the Holder in the applicable Registration
Statement (the "Requisite Information") to the Company prior to any intended
distribution of Registrable Securities under the Shelf Registration Statement.
The Company shall not be required to include in any Shelf Registration Statement
and related Prospectus the Registrable Securities of any Holder that does not
provide the Company with a Notice and Questionnaire in accordance with this
Section 2(c). The Company shall file, within five Business Days after the
receipt of a Notice and Questionnaire from any Holder which includes the
Requisite Information with respect to such Holder, a Prospectus supplement
pursuant to Rule 424 or otherwise amend or supplement such Registration
Statement to include in the Prospectus the Requisite Information as to such
Holder (and the Registrable Securities held by such Holder), and the Company
shall provide such Holder within five Business Days after receipt of such Notice
and Questionnaire with a copy of such Prospectus as so amended or supplemented
containing the Requisite Information in order to permit such Holder to comply
with the Prospectus delivery requirements of the Securities Act in a timely
manner with respect to any proposed disposition of such Holder's Registrable
Securities and to file the same with the SEC. Each Holder shall promptly notify
the Company of any material changes to the Requisite Information contained in
the Notice and Questionnaire provided to the Company by such Holder. If the
Company shall fail to file the appropriate supplement or amendment within five
Business Days of receipt of such notice, the Company shall pay the Holder
Liquidated Damages in the manner set forth in Section 3. Furthermore, if the
filing requires a post-effective amendment to the Registration Statement and
such amendment is not declared effective within 45 Business Days of the filing
of the post-effective amendment, the Company shall pay the Holder Liquidated
Damages in the manner set forth in Section 3. If any such Registration Statement
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refers to any Holder by name or otherwise as the holder of any securities of the
Company, then such Holder shall have the right to require, in the event that
such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar Federal statute then in force, the deletion of the
reference to such Holder in such Registration Statement at any time subsequent
to the time that such reference ceases to be required.
(d) Material Events; Suspension of Sales. Notwithstanding the provisions
contained in this Section 2, in the event that, in the judgment of the Company's
Board of Directors, it is advisable to suspend use of the Prospectus due to
pending corporate developments, public filings with the SEC or similar events,
the Company shall promptly deliver a written certificate to each registered
Holder, the Trustee, the Transfer Agent and the managing underwriters, if any,
to the effect that the use of the Prospectus is to be suspended until the
Company shall deliver a written notice that the use of the Prospectus may be
resumed. Thereafter, the use of the Prospectus shall be suspended, and the
Company shall not be required to maintain the effectiveness of, or amend or
update the Shelf Registration Statement, or amend or supplement the Prospectus;
provided, however, that the Company shall only be permitted to suspend the use
of the Prospectus for a period not to exceed 45 days in any three-month period
or, an aggregate of 90 days in any 12-month period. The Company will use its
best efforts to ensure that the use of the Prospectus may be resumed as soon as,
in the judgment of the Company's Board of Directors, disclosure of the material
relating to such pending development, filing or event would not have a material
adverse effect on the Company.
(e) Additional Agreements of Holders. Each Holder agrees not to dispose of
Registrable Securities pursuant to the Shelf Registration Statement without
complying with the prospectus delivery requirements under the Act and the
provisions of paragraph (d) above regarding use of the Prospectus. Each Holder
further agrees that it will comply fully with applicable federal and state
securities laws in connection with the distribution of any Registrable
Securities pursuant to the Shelf Registration Statement. Each Holder further
acknowledges having been advised by the Company that applicable federal
securities laws prohibit Holders from trading in securities of the Company at
any time while in possession of material non-public information about the
Company.
Section 3. Liquidated Damages.
(a) The Company and the Initial Purchasers agree that the Holders will
suffer damages if the Company fails to fulfill its obligations pursuant to
Section 2 hereof and that it would not be possible to ascertain the extent of
such damages with precision. Accordingly, the Company hereby agrees to pay
liquidated damages ("Liquidated Damages") to each Holder under the circumstances
and to the extent set forth below:
(i) if the Shelf Registration Statement has not been filed with the
SEC on or prior to the Filing Date; or
(ii) if such Shelf Registration Statement is not declared effective by
the SEC on or prior to the applicable Effectiveness Target Date; or
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(iii) any Shelf Registration Statement ceases to be effective or fails
to be usable at any time during the Effectiveness Period (without being
succeeded within five Business Days by a post-effective amendment or
supplement to such Registration Statement that cures such failure and that
is itself, in the case of post-effective amendment, immediately declared
effective); or
(iv) the Prospectus has been suspended as described in clause (iii) of
this Section 3(a) longer than the period permitted by such paragraph (each
of the foregoing, a "Registration Default").
In the event of a Registration Default, commencing on (and including) the
date immediately succeeding the date of any Registration Default and ending on
(but excluding) the next date on which no Registration Default shall be
continuing, the Company agrees to pay, as liquidated damages and not as a
penalty, an amount, payable on the Damages Payment Dates to Record Holders of
then outstanding Notes that are Registrable Securities or of then outstanding
shares of Underlying Common Stock issued upon conversion of Notes that are
Registrable Securities, if any, as the case may be, at a rate per annum equal to
one-quarter of one percent (0.25%) for the first 90-day period from the Event
Date, and thereafter at a rate per annum equal to one-half of one percent (0.5%)
of the aggregate Applicable Principal Amount of such Notes, to Record Holders of
the then outstanding Notes that are Registrable Securities, or the aggregate
principal amount of the Notes converted to Record Holders of the then
outstanding shares of Common Stock that are Registrable Securities, as the case
may be. Following the cure of a Registration Default, Liquidated Damages will
cease to accrue with respect to such Registration Default (without in any way
limiting the effect of any subsequent Registration Default). All accrued
Liquidated Damages shall be paid to the holders of (i) Notes constituting
Registrable Securities, pursuant to the terms of the Indenture with respect to
the payment of interest; and (ii) shares of Common Stock, in the manner as
interest payments on the Notes on semiannual payment dates that correspond to
interest payment dates for the Notes. The parties hereto agree and acknowledge
that the payment of Liquidated Damages to holders of Common Stock upon a
Registration Default pursuant to this Agreement shall not be a dividend on such
shares of Common Stock.
(b) The Company shall notify the Transfer Agent or the Trustee, as the case
may be, within one Business Day after each and every date on which a
Registration Default occurs. Liquidated Damages shall be paid by the Company to
the Record Holders of Common Stock on each Damages Payment Date by wire transfer
of immediately available funds to the accounts specified by them or by mailing
checks to their registered addresses as they appear in the register of the
Company for the Common Stock, if no such accounts have been specified in the
Notice and Questionnaire on or before the Damages Payment Date; and Liquidated
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Damages shall be paid by the Company to the Record Holders of the Notes on each
semiannual interest payment date together with interest to be paid on the Notes
pursuant to the terms of the Indenture, by wire transfer of immediately
available funds to the accounts specified by them or by mailing checks to their
registered addresses as they appear in the Notes Register (as defined in the
Indenture) if no such accounts have been specified in the Notice and
Questionnaire on or before the Damages Payment Date; provided, however, that any
Liquidated Damages accrued with respect to any Notes or portion thereof called
for redemption on a redemption date, repurchased on a repurchase date, or
converted into shares of Common Stock on a conversion date prior to the Damages
Payment Date shall, in any such event, be paid instead to the Holder who
submitted such Notes or portion thereof for redemption, repurchase or conversion
on the applicable redemption date, repurchase date or conversion date, as the
case may be, on such date.
Section 4. Registration Procedures. In connection with the Company's
registration obligations hereunder, the Company shall effect such registrations
on the appropriate form selected by the Company to permit the resale of
Registrable Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall as expeditiously as
reasonably possible:
(a) No fewer than five Business Days prior to the initial filing of a
Registration Statement or Prospectus and no fewer than two Business Days prior
to the filing of any amendment or supplement thereto (excluding, unless
requested, any document that would be incorporated or deemed to be incorporated
therein by reference and then only to the Holder who so requested), furnish to
the Holders and the managing underwriters, if any, copies of all such documents
proposed to be filed (excluding, unless requested, those incorporated or deemed
to be incorporated by reference and then only to the Holder who so requested)
and cause the officers and directors of the Company, counsel to the Company and
independent certified public accountants to the Company to respond to such
inquiries as shall be necessary in connection with such registration statement,
in the opinion of counsel to such underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company shall not
file any such Registration Statement or related Prospectus or any amendments or
supplements thereto (excluding any document that would be incorporated or deemed
incorporated by reference) to which the Holders of a majority in interest of the
Registrable Securities or the managing underwriters, if any, shall reasonably
object in writing (by hand-delivery, courier guaranteeing overnight delivery or
telecopy) within five Business Days after the receipt of such documents;
(b) Prepare and file with the SEC such amendments, including post-effective
amendments, to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable time period set
forth in Section 2(a) hereof; 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 and
Prospectus during such period in accordance with the intended method or methods
of disposition by the Holder set forth in such Registration Statement as so
amended or in such Prospectus as so supplemented (including, without limitation,
the filing of any Prospectus supplement pursuant to Rule 424 in order to add or
change any selling security holder information (including any such supplements
or amendments pursuant to Section 2(c) hereof, provided such Holder to which
such change applies complies with the Requisite Information requirements of
Section 2(c) hereof));
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(c) Notify the Holders and the managing underwriters, if any, promptly (and
in the case of an event specified by clause (i)(A) of this paragraph in no event
fewer than two Business Days prior to such filing) and, (if requested by any
such person) confirm such notice in writing, (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment is proposed to be filed, and,
(B) with respect to a Registration Statement or any post-effective amendment,
when the same has become effective; (ii) of any request of the SEC or any other
Federal or state governmental authority for amendments or supplements to such
Registration Statement or related Prospectus or for additional information
related thereto; (iii) of the issuance by the SEC, any state securities
commission, any other governmental agency or any court of any stop order, order
or injunction suspending or enjoining the use or the effectiveness of the
Registration Statement or the initiation or threatening of any proceedings for
that purpose (a "Deferral Notice"); (iv) if at any time any of the
representations and warranties of the Company contained in any agreement
(including any underwriting agreement) contemplated by Section 4(m) hereof are
not true and correct in all material respects; (v) 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; (vi) of the existence of any fact or the happening of any event that
makes any statement made in such Registration Statement or related Prospectus
untrue in any material respect, or that requires the making of any changes in
such Registration Statement or Prospectus so that in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and that, in the case of
the Prospectus, such 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 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 will be
filed with the SEC, which notice may, at the discretion of the Company (or as
required pursuant to Section 3(i)), state that it constitutes a Deferral Notice,
in which event the provisions of Section 3(i) shall apply;
(d) Use all reasonable efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of any stop order or order enjoining or suspending the use
or 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 practicable moment;
(e) If requested by the Initial Purchasers or managing underwriters, if
any, or the Holders of a majority in interest of the Registrable Securities
being sold in connection with such offering, (i) promptly include in a
Prospectus supplement or post-effective amendment such information as the
Initial Purchasers or managing underwriters, if any, or such Holders agree
should, in their reasonable judgment, be included therein; and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as reasonably practicable after the Company has received notification of
the matters to be included in such Prospectus supplement or post-effective
amendment; provided, however, that the Company shall not be required to take any
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action pursuant to this Section 4(e) that are not in the opinion of counsel for
the Company, in compliance with applicable law;
(f) Furnish to each Holder who so requests, each Initial Purchaser and each
managing underwriter, if any, without charge, at least one conformed copy of
each Registration Statement and each 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 or any Initial Purchaser or any managing underwriter);
(g) Deliver to each Holder and the underwriters, if any, without charge, as
many copies of the Prospectus or Prospectuses (including each form of
Prospectus) and each amendment or supplement thereto as such persons may
reasonably request; and, unless the Company shall have given notice to such
Holder pursuant to Section 2(d), the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders of Registrable Securities and the underwriters, if any, in connection
with the offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto;
(h) Prior to any public offering of Registrable Securities, use all
reasonable efforts to register or qualify, or cooperate with the Holders of
Registrable Securities to be sold or tendered for, the underwriters, if any, and
their respective 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 Holder or underwriter 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 legally
to enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or subject the Company to any tax in any such jurisdiction
where it is not then so subject;
(i) In connection with any sale or transfer of Registrable Securities that
will result in such securities no longer being Registrable Securities, cooperate
with the Holders and the managing underwriters, if any, to (i) facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any restrictive
legends, shall (in the case of Notes) bear a CUSIP number different from the
CUSIP number for the Registrable Securities and shall be in a form eligible for
deposit with The Depository Trust Company; and (ii) enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters, if any, or Holders may reasonably request at least two
Business Days prior to any sale of Registrable Securities;
(j) Cause the offering of the Registrable Securities covered by the
Registration Statement to be registered with or approved by such other
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governmental agencies or authorities within the United States, except as may be
required as a consequence of the nature of a Holder's business, in which case
the Company will cooperate in all reasonable respects and at such Holder's
expense with the filing of such Registration Statement and the granting of such
approvals as may be reasonably necessary to enable the seller or sellers thereof
or the underwriters, if any, to consummate the disposition of such Registrable
Securities; provided, however, that the Company shall not be required to
register the Registrable Securities in any jurisdiction that would require the
Company to qualify to do business in any jurisdiction where it is not then so
qualified, subject it to general service of process in any such jurisdiction
where it is not then so subject or subject the Company to any tax in any such
jurisdiction where it is not then so subject;
(k) Upon the occurrence of any event contemplated by Section 4(c)(vi)
hereof, as promptly as reasonably practicable (subject to any suspension of
sales pursuant to Section 2(d) hereof), prepare a supplement or amendment,
including, if appropriate, a post-effective amendment, to each Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, 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 light of the
circumstances under which they were made, not misleading;
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, to provide a CUSIP number for the
Registrable Securities to be sold pursuant to the Registration Statement;
(m) Enter into such agreements (including any underwriting agreements in
form, scope and substance as are customary in underwritten offerings) and take
all such other actions in connection therewith (including those reasonably
requested by the managing underwriters, if any, or the Holders of a majority in
interest of the Registrable Securities being sold) in order to expedite or
facilitate the sale of such Registrable Securities; provided, however, that the
Company is not required to facilitate an underwritten offering without its
consent, given in its sole discretion. In connection with any underwritten
offering, the Company will (i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters, if any, with
respect to the business of the Company and its subsidiaries (including with
respect to businesses or assets acquired or to be acquired by any of them), and
the Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii) seek to obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, addressed to each selling Holder of Registrable
Securities and each of the underwriters, if any, covering the matters
customarily covered in opinions requested in underwritten offerings (including
any such matters as may be reasonably requested by such underwriters)); (iii)
use all reasonable efforts to obtain customary "cold comfort" letters and
updates thereof from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
11
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 Registration Statement), addressed (where reasonably possible) to each
selling Holder of Registrable Securities and each of the underwriters, if any,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
offerings; and (v) deliver such documents and certificates as may be reasonably
requested by the Holders of majority interest of the Registrable Securities
being sold or the managing underwriters, if any, to evidence the continued
validity of the representations and warranties made pursuant to clause (i) of
this Section 4(m) and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company;
(n) Make available for inspection by a representative of the Holders of
Registrable Securities being sold, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney, consultant or
accountant retained by such selling Holders or underwriter, at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries as they may reasonably request, and cause the officers, directors,
agents and employees of the Company and its subsidiaries to supply all
information in each case reasonably requested by any such representative,
underwriter, attorney, consultant or accountant in connection with such
Registration Statement; provided, however, that such persons shall 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 or inspection (as the case may be) 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); (iii) such information becomes generally available
to the public other than as a result of a disclosure or failure to safeguard by
any such person; 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;
(o) Use all reasonable efforts to cause the Indenture to be qualified under
the TIA not later than the effective date of the first Registration Statement
relating to the Registrable Securities; and in connection therewith, cooperate
with the Trustee and the Holders of Notes or Common Stock constituting
Registrable Securities to effect such changes to the Indenture, if any, as may
be required for such Indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use all reasonable efforts to cause the Trustee to
execute, all customary documents as may be required to effect such changes, and
all other forms and documents (including Form T-1) required to be filed with the
SEC to enable the Indenture to be so qualified under the TIA in a timely manner;
(p) Comply with applicable rules and regulations of the SEC and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act or Rule 158 (or any similar
12
rule promulgated under the Securities Act), no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering; and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter after the
effective date of a Registration Statement, which statement shall cover said
period, consistent with the requirements of Rule 158; and
(q) (i) list all shares of Common Stock covered by any Registration
Statements on any securities exchange on which the Common Stock is then listed;
or (ii) authorize for quotation on the Nasdaq National Market ("Nasdaq") all
Common Stock covered by all such Registration Statements if the Common Stock is
then so authorized for quotation.
(r) Make reasonable effort to provide such information as is required for
any filings required to be made with the National Association of Securities
Dealers, Inc.
Section 5. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by it whether or not any Registration Statement is filed or becomes effective
and whether or not any securities are offered or sold pursuant to any
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filings
fees (including, without limitation, fees and expenses (A) with respect to
filings required to be made with the National Association of Securities Dealers,
Inc. and (B) in compliance with securities or Blue Sky laws (including, without
limitation and in addition to that provided for in this Section 5, fees and
disbursements of counsel for the underwriters in connection with Blue Sky
qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as the managing underwriters, if any, or Holders of a majority in
interest of Registrable Securities, may designate)); (ii) printing expenses
(including, without limitation, of printing Prospectuses if the printing of
Prospectuses is required by the managing underwriters, if any, or by the Holders
of a majority in interest of the Registrable Securities included); (iii)
messenger, telephone and delivery expenses; (iv) reasonable fees and
disbursements of counsel for the Company (plus one counsel deemed appropriate by
the representative of the Initial Purchasers) in accordance with the provisions
of Section 5 hereof; (v) fees and disbursements of all independent certified
public accountants referred to in Section 4(m)(iii) (including, without
limitation, the expenses of any special audit and "comfort" letters required by
or incident to such performance); (vi) fees and expenses of all other persons
retained by the Company. In addition, the Company shall pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of an
annual audit and the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange or the Nasdaq
National Market. Notwithstanding anything in this Agreement to the contrary,
each Holder shall pay all underwriting discounts and brokerage commissions with
respect to any Registrable Securities sold by it.
13
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Initial Purchaser
and each Holder of Registrable Securities and each person, if any, who controls
the Initial Purchaser or any Holder of Registrable Securities within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act, as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
6(d) below) any such settlement is effected with the prior written consent
of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Initial Purchaser),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchaser, such Holder of Registrable Securities (which also
acknowledges the indemnity provisions herein) or any person, if any, who
controls the Initial Purchaser or any such Holder of Registrable Securities
expressly for use in the Registration Statement (or any amendment thereto), or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); provided, further, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense (1) arising from an offer or sale
of Registrable Securities occurring during a Deferral Period, if a Deferral
Notice was given to such Notice Holder in accordance with Section 8(b), or (2)
if the Holder fails to deliver at or prior to the written confirmation of sale,
the most recent Prospectus, as amended or supplemented, and such Prospectus, as
14
amended or supplemented, would have corrected such untrue statement or omission
or alleged untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder, including,
without limitation, the Initial Purchaser, of Registrable Securities is
participating, in furnishing information relating to such Holder of Registrable
Securities to the Company in writing expressly for use in such Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto, the Holders of such Registrable Securities agree, severally
and not jointly, to indemnify and hold harmless the Initial Purchaser and each
person, if any, who controls the Initial Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act and the
Company, and each person, if any, who controls the Company within the meaning of
either such Section, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder of
Registrable Securities (which also acknowledges the indemnity provisions herein)
or any person, if any, who controls any such Holder of Registrable Securities
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
The Initial Purchaser agrees to indemnify and hold harmless the Company,
the Holders of Registrable Securities, and each person, if any, who controls the
Company or any Holder of Registrable Securities within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Initial Purchaser expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. The indemnifying party, 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
15
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), whose fees must be reasonable, for the Initial
Purchaser, Holders of Registrable Securities, and all persons, if any, who
control the Initial Purchaser or Holders of Registrable Securities within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, collectively (b) the fees and expenses of more than one separate firm (in
addition to any local counsel), whose fees must be reasonable, for the Company
and each person, if any, who controls the Company within the meaning of either
such Section, and that all fees and expenses payable under (a) and (b) above
shall be reimbursed as they are incurred. In the case of any such separate firm
for the Initial Purchaser, Holders of Registrable Securities, and control
persons of the Initial Purchaser and Holders of Registrable Securities, such
firm shall be designated in writing by the Initial Purchaser. In the case of any
such separate firm for the Company 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 non-appealable
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. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement; provided, that an indemnifying
party shall not be liable for any such settlement effected without its consent
if such indemnifying party (1) reimburses such indemnified party in accordance
with such request to the extent it considers such request to be reasonable and
(2) provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
16
(e) If the indemnification to which an indemnified party is entitled under
this Section 6 is for any reason unavailable to or insufficient although
applicable in accordance with its terms to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the Holders of the
Registrable Securities or the Initial Purchaser on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
Holder of the Registrable Securities or the Initial Purchaser and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 6(e). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred
by an indemnified party and referred to above in this Section 6(e) shall be
deemed to include any out-of-pocket legal or other expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, neither the Holder of any
Registrable Securities nor the Initial Purchaser, shall be required to indemnify
or contribute any amount in excess of the amount by which the total price at
which the Registrable Securities sold by such Holder of Registrable Securities
or by the Initial Purchaser, as the case may be, and distributed to the public
were offered to the public exceeds the amount of any damages that such Holder of
Registrable Securities or the Initial Purchaser has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6(e), each person, if any, who controls the
Initial Purchaser or any Holder of Registrable Securities within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
17
the same rights to contribution as the Initial Purchaser or such Holder, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company, as the case may be.
Section 7. Information Requirements. (a) The Company covenants that, if at
any time before the end of the Effectiveness Period the Company is not subject
to the reporting requirements of the Exchange Act, the Company will cooperate
with any Holder of Registrable Securities and take such further reasonable
action as any Holder of Registrable Securities may reasonably request in writing
(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 and customarily taken in
connection with sales pursuant to such exemptions. Upon the written request of
any Holder of Registrable Securities, the Company shall deliver to such Holder a
written statement as to whether the Company has complied with such filing
requirements, unless such a statement has been included in the Company's most
recent report required to be filed and filed pursuant to Section 13 or Section
15(d) of Exchange Act. 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 reports required to be filed by it under the
Exchange Act.
Section 8. Underwritten Registration. If any of the Registrable Securities
covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be investment bankers of recognized
national standing selected by the Holders of a majority in interest of such
Registrable Securities included in such offering, subject to the consent of the
Company (which will not be unreasonably withheld or delayed). No person may
participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person's Registrable Securities on the basis reasonably
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up agreements and other documents reasonably required under the terms of
such underwriting arrangements.
Section 9. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder of any
of their respective obligations under this Agreement, each Holder or the
Company, in addition to being entitled to exercise all rights granted by law,
including, without limitation, recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each Holder
agree 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 agree that, in the event of any action for specific
performance in respect of such breach, they shall waive the defense that a
18
remedy at law would be adequate. This Section 9(a) shall not apply to any breach
for which Liquidated Damages have been specifically provided hereunder.
(b) No Inconsistent Agreements. The Company has not and shall not enter
into any agreement that is inconsistent with the rights granted to the Holders
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements. The Company is not
currently a party to any agreement granting any registration rights with respect
to any of its securities to any person which conflicts with the Company's
obligations hereunder or gives any other party the right to include any
securities in any Registration Statement filed pursuant hereto, except for such
rights and conflicts as have been irrevocably waived.
(c) No Adverse Action Affecting the Registrable Securities. The Company
will not take any action with respect to the Registrable Securities which would
adversely affect the ability of any of the Holders to include such Registrable
Securities in a registration undertaken pursuant to this Agreement.
(d) No Piggyback on Registrations. After the date hereof, the Company shall
not grant to any of its security holders (other than the Holders in such
capacity) the right to include any of its securities in any Shelf Registration
Statement.
(e) 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,
without the written consent of the Holders of a majority in interest of the
Registrable Securities, provided, however, that, for the purposes of this
Agreement, Registrable Securities that are owned, directly or indirectly, by
either the Company or an Affiliate of the Company are not deemed outstanding.
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 whose Registrable Securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by Holders of a majority in interest of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement,
provided, however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence. Each Holder of Registrable Securities
outstanding at the time of any such amendment, modification, supplement, waiver
or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 9(e), whether or
not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(f) Notices. All notices and other communications provided for herein or
permitted hereunder shall be made in writing by hand-delivery, courier
guaranteeing overnight delivery, certified first-class mail, return receipt
requested, or telecopy and shall be deemed given (i) when made, if made by hand
delivery, (ii) upon confirmation, if made by telecopier, (iii) one (1) Business
19
Day after being deposited with such courier, if made by overnight courier or
(iv) on the date indicated on the notice of receipt, if made by first-class
mail, to the parties as follows:
(i) if to a Holder, to the address of such Holder as it appears in the
Notice and Questionnaire, or, if not so specified, in the Common Stock or
Notes register of the Company, as applicable;
(ii) if to the Company to:
The Profit Recovery Group International, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 000 Xxxxx
Xxxxxxx, XX 00000-0000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Chief Financial Officer
(iii) If to the Initial Purchasers, to:
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Investment Banking Counsel
Telecopy No.: (000) 000-0000
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given, when delivered by hand, if personally delivered;
one Business Day after being timely delivered to a next-day air courier, upon
receipt by the Company after being deposited in the mail, postage prepaid, if
mailed; and when receipt is acknowledged by the recipient's telecopier machine,
if telecopied.
(g) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each existing and future Holder. The Company
may not assign its rights or obligations hereunder without the prior written
consent of the Holders of a majority in interest of the Registrable Securities,
other than by operation of law pursuant to a merger or consolidation to which
the Company is a party.
(h) Counterparts. This Agreement may be executed in any number of
counterparts by the parties hereto, 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 instrument.
20
(i) 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
CONFLICTS OF LAW.
(j) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction 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, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction, it being intended that all of the rights and privileges
of the parties shall be enforceable to the fullest extent permitted by law.
(k) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(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. Except as provided in the
Purchase 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 solely with respect to such registration rights.
(m) 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
3 hereof to the extent such damages accrue prior to the end of the Effectiveness
Period, each of which shall remain in effect in accordance with its terms.
21
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxx
--------------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Executive Officer
The foregoing Registration Rights
Agreement is hereby confirmed and
agreed to as of the date first written above:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Authorized Signatory
Acting on behalf of itself and the Initial Purchasers
22
Annex A
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of 4 3/4% Convertible Subordinated Notes
due 2006 (the "Notes") of The Profit Recovery Group International, Inc. ("PRG")
or common stock, without par value issued upon conversion of Notes (the "Common
Stock" and together with the Notes, the "Registrable Securities"), of PRG
understands that PRG has filed or intends to file with the Securities and
Exchange Commission (the "SEC") 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 November 26, 2001 between PRG and
the initial purchasers named therein. The Registration Rights Agreement is
available from PRG upon request at the address set forth below. All capitalized
terms not otherwise defined herein shall have the meanings 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 PRG 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, PRG 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 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 PRG 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 Item 3) pursuant to the Shelf
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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.
Pursuant to the Registration Rights Agreement, the undersigned has agreed
to indemnify and hold harmless the initial purchasers of the Registrable
Securities and each person, if any, who controls such initial purchasers within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and PRG, and
each person, if any, who controls PRG within the meaning of either such section,
against any and all loss, liability, claim, damage and expense arising in
connection with statements concerning the undersigned made in the Shelf
Registration Statement or the related prospectus in reliance upon the
information provided in this Notice and Questionnaire.
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The undersigned hereby provides the following information to PRG 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:
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(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) through which Registrable Securities listed in (3) below
are held:
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2. Address for Notices to Selling Securityholder:
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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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4. Beneficial ownership of PRG 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 PRG other than the
Registrable Securities listed above in Item (3).
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(a) Type and amount of other securities beneficially owned by the Selling
Securityholder:
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(b) CUSIP No(s). of such Registrable Securities beneficially owned:
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5. Relationship with PRG:
Except as set forth below, neither the undersigned nor any of its
affiliates, directors or principal equity holder (5% or more) has held any
position or office or has had any other material relationship with PRG (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, 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 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.
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State any exceptions here:
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Note:In no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior
agreement of PRG.
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), 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 provision.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons set
forth therein.
Pursuant to the Registration Rights Agreement, PRG has agreed under certain
circumstances to indemnify the Selling Securityholders against certain
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 PRG 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 Registrant Rights Agreement shall be made in writing at the address set
forth below.
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 PRG in connection with the preparation or amendment of the Shelf
Registration Statement and the related prospectus.
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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 duly authorized agent.
Beneficial Owner
By:
---------------------------------------------
Name:
Title:
Dated:_______________
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE
TO THE PROFIT RECOVERY GROUP INTERNATIONAL, INC. AT:
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 000 Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Chief Financial Office
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