EXECUTION COPY
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4 7/8% CONVERTIBLE
SUBORDINATED NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
Dated as of February 20, 1998
by and among
Oak Industries Inc.
and
Xxxxxxxxx, Xxxxxx and Xxxxxxxx Securities Corporation
Xxxxxx Brothers
Xxxxx and Company
This Registration Rights Agreement (this "Agreement") is made and entered
into as of February 20, 1998 by and among Oak Industries Inc., a Delaware
corporation (the "Company"), and Xxxxxxxxx, Lufkin and Xxxxxxxx
Securities Corporation, Xxxxxx Brothers Inc. and Xxxxx and Company (each
an "Initial Purchaser" and, collectively, the "Initial Purchasers"), each
of whom has agreed to purchase the Company's 4 7/8% Convertible
Subordinated Notes due 2008 (the "Notes") pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated February
20, 1998 (the "Purchase Agreement"), by and among the Company and the
Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Notes, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section
3 of the Purchase Agreement. Capitalized terms used herein and not
otherwise defined shall have the meaning assigned to them in the Indenture,
dated February 25, 1998, between the Company and State Street Bank, as
Trustee, relating to the Notes (the "Indenture").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in New York, New York or Boston,
Massachusetts are authorized or obligated by law or executive order to
close.
Certificated Securities: Definitive Securities, as defined in the
Indenture.
Closing Date: The date hereof.
Common Stock: Common Stock, $.01 par value per share, of the Company.
Commission: The Securities and Exchange Commission.
Effectiveness Deadline: As defined in Section 3(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exempt Resales: The transactions in which the Initial Purchasers propose
to sell the Notes to certain "qualified institutional buyers," as such term
is defined in Rule 144A under the Act, to certain "accredited investors,"
as such term is defined in Rule 501(a)(1), (2), (3), (5) and (7) of
Regulation D under the Act and pursuant to Regulation S under the Act.
Filing Deadline: As defined in Sections 3(a) hereof.
Holders: As defined in Section 2 hereof.
Notes: The up to $115,000,000 aggregate principal amount of 4_%
Convertible Subordinated Notes being issued pursuant to the Purchase
Agreement.
Notice and Means a Notice of Registration Statement and Selling
Questionnaire: Securityholder Questionnaire containing the
information specified in Item 507 or 508 of Regulation S-K, as applicable,
of the Act and such other information with respect to such Holder and the
intended distribution of Transfer Restricted Securities as may be required
to amend the Shelf Registration Statement or supplement the related
Prospectus.
Prospectus: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, all material incorporated by
reference into such Prospectus and any information previously omitted in
reliance upon Rule 430A of the Act.
Recommencement Date: As defined in Section 5(d) hereof.
Registration Default: As defined in Section 4 hereof.
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Shelf Registration As defined in Section 3 hereof.
Statement:
Special Counsel: Any special counsel to the holders of the Transfer
Restricted Securities, for which holders of the Transfer Restricted
Securities will be reimbursed pursuant to Section 6(b) hereof.
Suspension Notice: As defined in Section 5(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted The Notes and the shares of Common Stock into
Securities: which the Notes are convertible, upon original issuance
thereof, and at all times subsequent thereto, until, in the case of any
such Notes or shares of Common Stock, (a) the date on which such Notes or
shares of Common Stock have been disposed of in accordance with a Shelf
Registration Statement, (b) the date on which such Notes or shares of
Common Stock are distributed to the public pursuant to Rule 144 or are
saleable pursuant to Rule 144(k) (or similar provisions then in effect)
under the Act, (c) the date on which such Notes or shares of Common Stock
cease to be outstanding, or (d) the date on which such Notes or shares of
Common Stock have otherwise been transferred and new Notes or shares of
Common Stock not subject to transfer restrictions under the Securities Act
have been delivered by or on behalf of the Company in accordance with the
Indenture.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. SHELF REGISTRATION
(a) Shelf Registration. As soon as practicable after the Closing Date but
in no event no later than 90 days after the Closing Date (such 90th day,
the "Filing Deadline"), the Company shall file with the Commission a shelf
registration statement pursuant to Rule 415 under the Act (the "Shelf
Registration Statement"), relating to all Transfer Restricted Securities,
and shall use its reasonable best efforts to cause such Shelf Registration
Statement to become effective on or prior to 180 days after the Closing
Date (such 180th day, the "Effectiveness Deadline").
The Company shall use its reasonable best efforts to keep any Shelf
Registration Statement required by this Section 3(a) continuously
effective, supplemented and amended as required by and subject to the
provisions of Sections 5(a) and (b) hereof to the extent necessary to
ensure that it is available for sales of Transfer Restricted Securities by
the Holders thereof entitled to the benefit of this Section 3(a), and to
ensure that it conforms with the requirements of this Agreement, the Act
and the policies, rules and regulations of the Commission as announced from
time to time, for a period of at least two years following the date on
which such Shelf Registration Statement first became effective under the
Act, or such shorter period as will terminate upon the earlier of either
(a) when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant thereto and (b) when, in the
written opinion of independent counsel to the Company, all outstanding
Transfer Restricted Securities held by persons that are not affiliates of
the Company may be resold without registration under the Act pursuant to
Rule 144(k) under the Act or any successor provision thereto.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. The Company shall mail as soon as
practicable a Notice and Questionnaire to the holders of Transfer
Restricted Securities. No Holder may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company a Notice
and Questionnaire by the deadline set forth therein, which shall be at
least 28 calendar days from the date on which the Notice and Questionnaire
is first mailed to such Holders. After the Shelf Registration Statement is
declared effective, the Company shall, upon the request of any Holder that
is not then a selling Holder, promptly send a Notice and Questionnaire to
such holder. The Company shall not be required to take any action to name
such holder as a selling Holder in the Shelf Registration Statement or to
enable such holder to use the Prospectus forming a part thereof for resales
of Transfer Restricted Securities until such holder has returned a
completed and signed Notice and Questionnaire to the Company. In addition,
no Holder shall be entitled to liquidated damages pursuant to Section 4
hereof unless and until such Holder shall have provided a completed Notice
and Questionnaire. Each selling Holder agrees to promptly furnish
additional information as reasonably requested by the Company and as
required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 4. LIQUIDATED DAMAGES
If (i) the Shelf Registration Statement is not filed with the Commission on
or prior to the Filing Deadline, (ii) such Shelf Registration Statement has
not been declared effective by the Commission on or prior to the
Effectiveness Deadline, or (iii) such Shelf Registration Statement required
by this Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose
(without being succeeded immediately by a post-effective amendment to such
Shelf Registration Statement that is itself declared effective immediately
and available for effecting resales of Transfer Restricted Securities) for
a period of time which shall exceed 60 days in the aggregate during any 12-
month period (each such event referred to in clauses (i) through (iii), a
"Registration Default"), then the Company shall accrue liquidated damages
to each Holder for each week or portion thereof that the Registration
Default continues for the first 90-day period immediately following the
occurrence of such Registration Default, in an amount equal to $.05 per
week per $1,000 principal amount of Notes or, if applicable, in an amount
equal to $.05 per week per the number of shares of Common Stock
constituting Transfer Restricted Securities held by such Holder into which
each $1,000 of principal amount of Notes was converted (subject to
adjustment in the event of stock splits, stock recombinations, stock
dividends and the like). The rate of accrual of the liquidated damages
will increase by an additional $.05 per week per $1,000 principal amount of
Notes or, if applicable, in an amount equal to $.05 per week per the number
of shares of Common Stock constituting Transfer Restricted Securities into
which each $1,000 of principal amount of Notes was converted (subject to
adjustment as set forth above) for each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of liquidated
damages of $.50 per week per $1,000 principal amount of Notes or, if
applicable, an amount equal to $.50 per week per the number of shares of
Common Stock constituting Transfer Restricted Securities into which each
$1,000 of principal amount of Notes was converted (subject to adjustment as
set forth above); provided that the Company shall in no event be required
to pay liquidated damages for more than one Registration Default at any
given time. Notwithstanding anything to the contrary set forth herein, (1)
upon filing of the Shelf Registration Statement, in the case of (i) above,
(2) upon the effectiveness of this Shelf Registration Statement, in the
case of (ii) above, or (3) upon the filing of a post-effective amendment or
supplement to the Shelf Registration Statement that causes the Shelf
Registration Statement to again be declared effective or made usable, in
the case of (iii) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii), or
(iii), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the
Indenture, on semiannual payment dates that correspond to interest payment
dates for the Notes. All obligations of the Company set forth in the
preceding paragraph that are outstanding with respect to any Transfer
Restricted Security at the time such Notes and/or shares of Common Stock
cease to be Transfer Restricted Securities shall survive until such time as
all such obligations with respect to such Notes and/or shares of Common
Stock shall have been satisfied in full.
SECTION 5. REGISTRATION PROCEDURES
(a) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 5(b) below and shall use its reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution
thereof (as indicated in the information furnished to the Company pursuant
to Section 3(b) hereof), and pursuant thereto the Company will prepare and
file with the Commission a Shelf Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance
with the intended method or methods of distribution thereof (including,
without limitation, one or more underwritten offerings) within the time
periods and otherwise in accordance with the provisions hereof. The
Company shall not be permitted to include in the Shelf Registration
Statement any securities other than the Transfer Restricted Securities.
(b) General Provisions. In connection with any Shelf Registration
Statement and any related Prospectus required by this Agreement, the
Company shall:
(i) use its reasonable best efforts to keep such Shelf Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 of this Agreement. Upon
the occurrence of any event that would cause any such Shelf Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for resale
of Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to such
Shelf Registration Statement curing such defect, and, if Commission review
is required, use its reasonable best efforts to cause such amendment to be
declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement effective for the
applicable period set forth in Section 3 hereof, cause, subject to Section
5(d) hereof, the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act, and to comply fully with Rules 424, 430A and 462, as applicable,
under the Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all Transfer Restricted Securities
covered by such Shelf Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Shelf Registration Statement or
supplement to the Prospectus;
(iii) advise the selling Holders or their Special Counsel and
underwriters, if any, promptly and, if requested by such Persons, confirm
such advice in writing, (A) when the Prospectus or any Prospectus
supplement relating to such selling Holders or post-effective amendment has
been filed, and, with respect to any Shelf Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B)
of any request by the Commission for amendments to the Shelf Registration
Statement or amendments or supplements relating to such selling Holders to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Shelf Registration Statement under the Act or of the suspension by
any state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Shelf Registration Statement in order to
make the statements therein not misleading, or that requires the making of
any additions to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Shelf Registration Statement, or
any state securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use its reasonable best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time;
(iv) subject to Section 5(b)(i), if any fact or event contemplated by
Section 5(b)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Shelf Registration Statement
or related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to the Initial Purchasers, each selling Holder named in
any Shelf Registration Statement or Prospectus or Special Counsel to such
selling Holders and underwriters, if any, in connection with such sale
before filing with the Commission, copies of any Shelf Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Shelf Registration Statement or Prospectus, which
documents will be subject to the review and comment of such Persons in
connection with such sale, if any, for a period of at least two Business
Days, and the Company will not file any such Shelf Registration Statement
or Prospectus or any amendment or supplement to any such Shelf Registration
Statement or Prospectus to which such Persons shall reasonably object
within two Business Days after the receipt thereof;
(vi) make available at reasonable times for inspection by a
representative of the selling Holders and underwriters, if any, and any
attorney or accountant retained by such selling Holders, or underwriters,
if any, all relevant financial and other records and pertinent corporate
documents of the Company and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
selling Holder, underwriters, if any, attorney or accountant in connection
with such Shelf Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its effectiveness, in
each case as is customary for similar due diligence investigations;
provided, however, that any information that is designated in writing by
the Company, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such selling Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality; and provided
further that the foregoing inspection and information gathering shall, to
the greatest extent possible, be coordinated on behalf of the selling
Holders and the other parties entitled thereto by one counsel designated by
and on behalf of such selling Holders and other parties reasonably
acceptable to the Company.
(vii) if requested by the Initial Purchasers or underwriters, if any,
in connection with such sale, promptly include in any Shelf Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders or
underwriters, if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the Company is notified of the matters to be included
in such Prospectus supplement or post-effective amendment provided that the
Company shall not be required to take any actions under this clause that
are not, in the opinion of its counsel, in compliance with applicable law;
(viii) furnish to each selling Holder and each underwriter, if any,
without charge, at least one copy of the Shelf Registration Statement, as
first filed with the Commission, and of each amendment thereto, and upon
reasonable request of such selling Holder or underwriter, all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(ix) deliver to each selling Holder and each underwriter, if any,
without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each selling Holder and each underwriter, if any, in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(x) subject to Section 9, upon the request of any selling Holder or
underwriter, if any, enter into such agreements (including underwriting
agreements) and make such representations and warranties and take all such
other actions in connection therewith in each case as is customary in
underwritten public offerings in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any Shelf
Registration Statement contemplated by this Agreement as may be reasonably
requested by such Person in connection with any sale or resale pursuant to
any applicable Shelf Registration Statement and in such connection, the
Company shall:
(A) upon request of any selling Holder or underwriter, if any,
furnish (or in the case of paragraphs (2) and (3) below, use its reasonable
best efforts to cause to be furnished) to each selling Holder or
underwriter, if any, upon the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated such date, signed on behalf of the
Company by (x) the President or any Senior Vice President and (y) a
principal financial or accounting officer of the Company, confirming, as of
the date thereof, the matters set forth in paragraphs (a) through (d) of
Section 9 of the Purchase Agreement and such other similar matters as the
selling Holders may reasonably request;
(2) an opinion, dated the date effectiveness of the Shelf
Registration Statement, of counsel for the Company covering matters similar
to those set forth in Section 9(e) of the Purchase Agreement and such other
matters as the selling Holders may reasonably request, and in any event
including a statement to the effect that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company, and
have considered the matters required to be stated therein and the
statements contained therein, although such counsel has not independently
verified the accuracy, completeness or fairness of such statements; and
that such counsel advises that, on the basis of the foregoing (relying as
to materiality to the extent such counsel deems appropriate upon the
statements of officers and other representatives of the Company), no facts
came to such counsel's attention that caused such counsel to believe that
the Shelf Registration Statement, at the time such Shelf Registration
Statement or any post-effective amendment thereto became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus contained in such
Shelf Registration Statement, as of its date, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no responsibility for,
and has not independently verified, the accuracy, completeness or fairness
of the financial statements, notes and schedules and other financial data
included in any Registration Statement contemplated by this Agreement or
the related Prospectus; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement from the Company's
independent accountants, in the customary form and covering matters of the
type customarily covered in comfort letters to underwriters in connection
with underwritten offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 9(g) of the Purchase
Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by the selling Holders and underwriters, if any, to
evidence compliance with clause (A) above and with any customary conditions
contained in any agreement entered into by the Company pursuant to this
clause (xi);
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, underwriters, if any, and their
respective counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as such Persons may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action that would subject it to
the service of process in suits or to taxation in any jurisdiction where it
is not now so subject;
(xii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Securities in such denominations and such
names as the selling Holders may request at least two Business Days prior
to such sale of Transfer Restricted Securities;
(xiii) (i) list all Shares of Common Stock covered by such Shelf
Registration Statement on any securities exchange on which the Common Stock
is then listed or (ii) authorize for quotation on the National Association
of Securities Dealers Automated Quotation System ("NASDAQ") or the National
Market System of NASDAQ all Shares of Common Stock covered by such Shelf
Registration Statement if the Common Stock is then so authorized for
quotation.
(xiv) use its reasonable best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Shelf Registration Statement
to be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted Securities not
later than the effective date of a Shelf Registration Statement covering
such Transfer Restricted Securities and provide the Trustee under the
Indenture with printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with the Depository Trust Company;
(xvi) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xvii) cause the Indenture to be qualified under the TIA not later than
the effective date of the Shelf Registration Statement required by this
Agreement and, in connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA; and
execute and use its reasonable best efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner; and
(xviii) provide promptly to each Holder upon request each document filed
with the Commission pursuant to the requirements of Section 13 or Section
15(d) of the Exchange Act.
(d) Restrictions on Holders. Notwithstanding anything to the contrary in
this Section 5, but subject to compliance with Section 4, the Company may,
by delivering written notice to the Holders, prohibit offers and sales of
Transfer Restricted Securities pursuant to the Shelf Registration Statement
at any time if (A) (i) the Company is in possession of material non-public
information relating to the Company, (ii) the Company determines (based on
advice of counsel) that such prohibition is necessary to avoid a
requirement to disclose such material non-public information to the public
and (iii) the Company determines in good faith that public disclosure of
such material non-public information would not be in the best interests of
its stockholders or (B) (i) the Company has made a public announcement
relating to an acquisition or business combination transaction including
the Company and/or one or more of its subsidiaries that is material to the
Company and its subsidiaries taken as a whole and (ii) the Company
determines in good faith that (x) offers and sales of Transfer Restricted
Securities pursuant to the Shelf Registration Statement prior to the
consummation of such transaction (or such earlier date as the Company shall
determine) is not in the best interests of the Company and its stockholders
or (y) it would be impracticable at the time to obtain any financial
statements relating to such acquisition or business combination transaction
that would be required to be set forth in the Shelf Registration Statement;
provided, however, that upon (i) the public disclosure by the Company of
the material non-public information described in clause (A) of this
paragraph or (ii) the consummation, abandonment or termination of, or the
availability of the required financial statements with respect to a
transaction described in clause (B) of this paragraph, the suspension of
the use of the Shelf Registration Statement pursuant to this Section 5(d)
shall cease and the Company shall promptly comply with Section 5(c) hereof
and notify the Holders that dispositions of Transfer Restricted Securities
may be resumed.
SECTION 6. REGISTRATION EXPENSES
(a) Except as set forth in Section 9 all expenses incident to the
Company's performance of or compliance with this Agreement will be borne by
the Company, regardless of whether a Shelf Registration Statement required
by this Agreement becomes effective, including without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing certificates for the
Common Stock to be issued upon conversion of the Notes and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees
and disbursements of counsel for the Company and the Holders of Transfer
Restricted Securities (subject to clause (b) below); (v) all application
and filing fees in connection with listing the Common Stock on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit
and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with any Shelf Registration Statement required by this
Agreement, the Company will reimburse the Initial Purchasers and the
Holders selling Transfer Restricted Securities pursuant to the "Plan of
Distribution" contained in the Shelf Registration Statement, for the
reasonable fees and disbursements of not more than one counsel, who shall
be Xxxx and Xxxx LLP, unless another firm shall be chosen by the Holders of
a majority in principal amount (and number of shares, if applicable) of the
Transfer Restricted Securities for whose benefit such Shelf Registration
Statement is being prepared.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder, its
directors, its officers and each Person, if any, who controls such Holder
(within the meaning of Section 15 of the Act and Section 20 of the Exchange
Act)(each such person being sometimes referred to herein as an "Indemnified
Holder"), from and against any and all losses, claims, damages,
liabilities, judgments, (including without limitation, any reasonable legal
or other expenses incurred in connection with investigating or defending
any matter, including any action that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement
or alleged untrue statement of a material fact contained in any Shelf
Registration Statement, preliminary Prospectus or Prospectus (or any
amendment or supplement thereto) provided by the Company to any holder or
any prospective purchaser of registered Notes or registered shares of
Common Stock or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by an untrue statement or
omission or alleged untrue statement or omission that is based upon
information relating to any of the Holders furnished in writing to the
Company by any of the Holders, provided, however, that the indemnification
contained in this paragraph (a) with respect to the preliminary Prospectus
shall not inure to the benefit of any Indemnified Holder (or to the benefit
of any person controlling such Indemnified Holder) on account of any such
loss, claim, damage, judgment, liability or expense arising from the sale
of the Notes or registered shares of Common Stock by such Indemnified
Holder to any person if the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in the
preliminary Prospectus was corrected in the Prospectus and, due to the
wrongful actions or wrongful inaction of the Indemnified Holder, the
Indemnified Holder did not send or give in a timely manner, a copy of the
Prospectus to such person (as then amended or supplemented) if the Company
has previously furnished sufficient copies thereof to the Indemnified
Holder on a timely basis.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company and its directors and officers, and each person, if
any, who controls (within the meaning of Section 15 of the Act or Section
20 of the Exchange Act) the Company, to the same extent as the foregoing
indemnity from the Company to each of the Indemnified Holders, but only
with reference to information relating to such Indemnified Holder furnished
in writing to the Company by such Indemnified Holder expressly for use in
any Registration Statement (or any amendment thereto) or Prospectus (or any
supplement thereto). In no event shall any Indemnified Holder be liable or
responsible for any amount in excess of the amount by which the total
amount received by such Indemnified Holder with respect to its sale of
Transfer Restricted Securities pursuant to a Shelf Registration Statement
exceeds (i) the amount paid by such Indemnified Holder for such Transfer
Restricted Securities and (ii) the amount of any damages that such
Indemnified Holder has otherwise been required to pay to the Company
pursuant to this Section 7(b) by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying
person") in writing and the indemnifying party shall assume the defense of
such action, including the employment of counsel reasonably satisfactory to
the indemnified party and the payment of all reasonable fees and expenses
of such counsel, as incurred (except that in the case of any action in
respect of which indemnity may be sought pursuant to both Sections 7(a) and
7(b), an Indemnified Holder shall not be required to assume the defense of
such action pursuant to this Section 7(c), but may employ separate counsel
and participate in the defense thereof, but the fees and expenses of such
counsel, except as provided below, shall be at the expense of the
Indemnified Holder). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action
or employ counsel reasonably satisfactory to the indemnified party or (iii)
the named parties to any such action (including any impleaded parties)
include both the indemnified party and the indemnifying party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them (in which case
the indemnifying party shall not have the right to assume the defense of
such action on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one action or separate
but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by a majority of the Indemnified
Holders, in the case of the parties indemnified pursuant to Section 7(a),
and by the Company, in the case of parties indemnified pursuant to Section
7(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written
consent if the settlement is entered into more than twenty business days
after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the reasonable fees and expenses
of counsel (in any case where such fees and expenses are at the expense of
the indemnifying party) and, prior to the date of such settlement, the
indemnifying party shall have failed to comply with such reimbursement
request. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could
have been a party and indemnity or contribution may be or could have been
sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability on claims that are or could have been
the subject matter of such action 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 the indemnified party.
(d) To the extent that the indemnification provided for in this Section 7
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or judgments (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and the Holders, on the other hand, from
their sale of Transfer Restricted Securities or (ii) if the allocation
provided by clause 7(d)(i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause 7(d)(i) above but also the relative fault of the
Company on the one hand, and of the Indemnified Holder, on the other hand,
in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative fault of the Company, on
the one hand, and of the Indemnified Holder, on the other hand, shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, on the one hand, or by the Indemnified Holder, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and judgments referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section
7(a), any legal or other fees or expenses reasonably incurred by such party
in connection with investigating or defending any action or claim.
The Company and each Holder and underwriter, if any, agree that it would
not be just and equitable if contribution pursuant to this Section 7(d)
were determined by pro rata allocation (even if the Holders and
underwriter, if any, were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any matter,
including any action that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 7, no Holder or its related Indemnified Holders shall be required
to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of its
Transfer Restricted Securities pursuant to a Registration Statement exceeds
the sum of (A) the amount paid by such Holder for such Transfer Restricted
Securities plus (B) the amount of any damages which such Holder has
otherwise been required to pay to the Company pursuant to this Section 7 by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Holders' obligations to contribute pursuant to this Section 8(c) are
several in proportion to the respective principal amount of Transfer
Restricted Securities held by each of the Holders hereunder and not joint.
SECTION 8. RULE 144 and RULE 144A
The Company agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company
(i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to any Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144(d)(4)
under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or
15(d) of the Exchange Act, to make all filings required thereby in a timely
manner in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144.
SECTION 9. UNDERWRITTEN REGISTRATIONS
(a) If any of the Transfer Restricted 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 selected by the Holders of a majority in
principal amount (and number of shares, if applicable) of such Transfer
Restricted Securities included in such offering, subject to the consent of
the Company (which will not be unreasonably withheld or delayed).
Notwithstanding anything herein to the contrary, the Company shall not be
obligated to arrange for more than one underwritten offering during the
term hereof. No Holder may participate in any underwritten registration
hereunder unless such Holder (i) agrees to sell its Transfer Restricted
Securities on the basis reasonably provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements, (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements and (iii) at least 25% of
the outstanding Transfer Restricted Securities are included in such
underwritten offering.
(b) Each Holder agrees, if requested (pursuant to a timely written
notice) by the managing underwriters in an underwritten offering made
pursuant to a Shelf Registration Statement, not to effect any private sale
or distribution (including a sale pursuant to Rule 144(k) and Rule 144A,
but excluding non-public sales to any of its affiliates, officers,
directors, employees and controlling persons) of any of the Notes, in the
case of an underwritten offering of the Notes, or the Common Stock, in the
case of an underwritten offering of shares of Common Stock constituting
Transfer Restricted Securities, during the period beginning 10 days prior
to, and ending 90 days after, the closing date of such underwritten
offering.
The foregoing provisions of Section 9(b) shall not apply to any Holder if
such Holder is prevented by applicable statute or regulation from entering
into any such agreement.
(c) If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the underwriters,
their controlling persons and their respective officers, directors,
employees, representatives and agents, shall be entitled to indemnity
(substantially similar to the indemnity set forth in Section 7 of the
Agreement) from the Company and the Holders, which indemnity may be set
forth in an underwriting agreement.
(d) The selling Holders participating in any underwritten offering shall
be responsible for any expenses customarily borne by selling
securityholders, including underwriting discounts and commissions and fees
and expenses of counsel to the selling securityholders and shall reimburse
the Company for the fees and disbursements of its counsel, its independent
public accountants and any printing expenses incurred in connection with
such underwritten offerings.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 3 hereof may
result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers or any Holder may obtain
such relief as may be required to specifically enforce the Company's
obligations under Section 3 hereof. The Company further agrees to waive
the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Conflicting Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its
securities that is adverse to the rights granted to the Holders in this
Agreement or otherwise materially conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) No Piggybacks on Shelf Registration Statement. The Company shall not
grant to any of its security holders (other than the holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in any Shelf Registration Statement provided for in this
Agreement other than the Transfer Restricted Securities.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of
Section 4 hereof and this Section 10(d)(i), the Company has obtained the
written consent of Holders of all outstanding Transfer Restricted
Securities and (ii) in the case of all other provisions hereof, the Company
has obtained the written consent of Holders of a majority of the
outstanding principal amount (and shares, if applicable) of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates).
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company:
Oak Industries Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Ropes and Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, if telecopied; and on the next business
day, if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(g) 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 limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
that nothing herein shall be deemed to permit any assignment, transfer or
other disposition of Transfer Restricted Securities in violation of the
terms hereof or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Transfer Restricted Securities in
any manner, whether by operation of law or otherwise, such Transfer
Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities
such Person shall be conclusively deemed to have agreed to be bound by and
to perform all of the terms and provisions of this Agreement, including the
restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive the
benefits hereof.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
OAK INDUSTRIES INC.
By:
-----------------------------
Name:
Title:
XXXXXXXXX, XXXXXX and XXXXXXXX
SECURITIES CORPORATION
XXXXXX BROTHERS INC.
XXXXX and COMPANY
By: XXXXXXXXX, LUFKIN and XXXXXXXX
SECURITIES CORPORATION
By:
--------------------------------
Name:
Title:
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