EXHIBIT 4.4
[CONFORMED COPY]
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of July 8, 1996, by and among MedImmune,
Inc., a Delaware corporation (the "Company") and Xxxxxx Xxxxxxx &
Co. Incorporated (the "Initial Purchaser") pursuant to the
Placement Agreement, dated as of July 8, 1996 (the "Placement
Agreement"), between the Company and the Initial Purchaser. In
order to induce the Initial Purchaser to enter into the Placement
Agreement the Company has agreed to provide the registration
rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Placement
Agreement.
The Company agrees with the Initial Purchaser, (i) for its
benefit as Initial Purchaser and (ii) for the benefit of the
holders from time to time of the Notes (including the Initial
Purchaser) and the holders from time to time of the Common Stock
issued upon conversion of the Notes (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the
Placement Agreement. As used in this Agreement, the following
terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any
specified person, (i) any other person directly or indirectly
controlling or controlled by, or under direct or indirect common
control with, such specified person or (ii) any officer or
director of such other person. For purposes of this definition,
the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a person
means the possession, direct or indirect, of the power (whether
or not exercised) to direct or cause the direction of the
management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise.
Business Day: Each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking
institutions in The City of New York are authorized or obligated
by law or executive order to close.
Common Stock: The shares of common stock, $.01 par
value per share, of the Company and any other shares of common
stock as may constitute "Common Stock" for purposes of the
Indenture, in each case, as issuable or issued upon conversion of
the Notes.
Damages Accrual Period: See Section 2(e) hereof.
Damages Payment Date: Each of the semi-annual interest
payment dates provided in the Indenture.
Deferral Period: See Section 2(d) hereof.
Effectiveness Period: The period commencing with the
date hereof and ending on the date that all Registrable
Securities have ceased to be Registrable Securities.
Event: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of July 8, 1996,
between the Company and Norwest Bank Minnesota, National
Association, as Trustee, pursuant to which the Notes are being
issued, as amended or supplemented from time to time in
accordance with the terms hereof.
Initial Purchaser: Xxxxxx Xxxxxxx & Co. Incorporated.
Initial Shelf Registration: See Section 2(a) hereof.
Liquidated Damages: See Section 2(e) hereof.
Losses: See Section 6 hereof.
Managing Underwriters: The investment banking firm or
firms that shall manage or co-manage an Underwritten Offering.
Notes: The 7% Convertible Subordinated Notes due 2003
of the Company being issued and sold pursuant to the Placement
Agreement and the Indenture.
Notice Holder: See Section 2(d)(i) hereof.
Placement Agreement: See the first paragraph of this
Agreement.
Prospectus: The prospectus included in any
Registration Statement (including, without limitation, a
prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement
in reliance upon Rule 430A promulgated under the Securities Act),
as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by
reference in such Prospectus.
Record Holder: (i) with respect to any Damages Payment
Date relating to any Note as to which any such Liquidated Damages
have accrued, the registered holder of such Note on the record
date with respect to the interest payment date under the
Indenture on which such Damages Payment Date shall occur and (ii)
with respect to any Damages Payment Date relating to any Common
Stock as to which any such Liquidated Damages have accrued, the
registered holder of such Common Stock 15 days prior to the next
succeeding Damages Payment Date.
Registrable Securities: (A) The Common Stock of the
Company into which the Notes are convertible or converted,
whether or not such Notes have been converted, and at all times
subsequent thereto, and any Common Stock issued with respect
thereto upon any stock dividend, split or similar event until, in
the case of any such Common Stock, (i) it is effectively
registered under the Securities Act and disposed of in accordance
with the Registration Statement covering it, (ii) it is saleable
by the holder thereof pursuant to Rule 144(k) or (iii) it is sold
to the public pursuant to Rule 144, and, as a result of the event
or circumstance described in any of the foregoing clauses (i)
through (iii), the legends with respect to transfer restrictions
required under the Indenture (other than any such legends
required solely as the consequence of the fact that such Common
Stock (or the Notes, upon the conversion of which, such Common
Stock was issued or is issuable) is owned by, or was previously
owned by, the Company or an Affiliate of the Company) are removed
or removable in accordance with the terms of the Indenture; (B)
the Notes, until, in the case of any such Note, (i) it is
converted into shares of Common Stock in accordance with the
terms of the Indenture, (ii) it is effectively registered under
the Securities Act and disposed of in accordance with the
Registration Statement covering it, (iii) it is saleable by the
holder thereof pursuant to Rule 144(k) or (iv) it is sold to the
public pursuant to Rule 144, and, as a result of the event or
circumstance described in any of the foregoing clauses (ii)
through (iv), the legends with respect to transfer restrictions
required under the Indenture (other than any such legends
required solely as the consequence of the fact that such Note is
owned by, or was previously owned by, the Company or an Affiliate
of the Company) are removed or removable in accordance with the
terms of the Indenture.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of
the Company which covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as
amended, and the rules and regulations promulgated by the SEC
thereunder.
Selling Period: See Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Xxxxx Xxxx & Xxxxxxxx or such
successor counsel as shall be specified by the Holders of a
majority of the Registrable Securities, the fees and expenses of
which will be paid by the Company pursuant to Section 5 hereof.
Subsequent Shelf Registration: See Section 2(b)
hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Shelf Registration.
(a) Shelf Registration. The Company shall prepare and
file with the SEC, as soon as practicable but in any event on or
prior to the date ninety (90) days following the latest date of
original issuance of the Notes (the "Filing Date"), a
Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration") registering the resale from time to time by
Holders thereof of all of the Registrable Securities (the
"Initial Shelf Registration"). The Initial Shelf Registration
shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by the
Holders in the manner or manners designated by them (including,
without limitation, one or more Underwritten Offerings). The
Company shall use its reasonable efforts to cause the Initial
Shelf Registration to be declared effective under the Securities
Act as soon as practicable and to keep the Initial Shelf
Registration continuously effective under the Securities Act
until the earlier of the expiration of the Effectiveness Period
or the date a Subsequent Shelf Registration, as defined below,
covering all of the Registrable Securities has been declared
effective under the Securities Act.
(b) If the Initial Shelf Registration or any
Subsequent Shelf Registration, as defined below, ceases to be
effective for any reason as a result of the issuance of a stop
order by the SEC at any time during the Effectiveness Period, the
Company shall use its reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and
in any event shall within thirty (30) days of such cessation of
effectiveness amend the Shelf Registration in a manner reasonably
expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration
covering all of the Registrable Securities (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the
Company shall use its reasonable efforts to cause the Subsequent
Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Registration
Statement continuously effective until the end of the
Effectiveness Period.
(c) The Company shall supplement and amend the Shelf
Registration if required by the rules, regulations or
instructions applicable to the registration form used by the
Company for such Shelf Registration, if required by the
Securities Act, or if reasonably requested by the Initial
Purchaser or by the Trustee on behalf of a majority of the
Holders of the Registrable Securities covered by such
Registration Statement or by any Managing Underwriter of such
Registrable Securities in the event of an Underwritten Offering
of the Registrable Securities.
(d) Each Holder of Registrable Securities agrees that
if such Holder wishes to sell its Registrable Securities pursuant
to a Shelf Registration and related Prospectus, it will do so
only in accordance with this Section 2(d). Each Holder of
Registrable Securities agrees to give written notice to the
Company at least three Business Days prior to any intended
distribution of Registrable Securities under the Shelf
Registration, which notice shall specify the date on which such
Holder intends to begin such distribution and any information
with respect to such Holder and the intended distribution of
Registrable Securities by such Holder as may be required to amend
the Registration Statement or supplement the related Prospectus
with respect to such intended distribution of Registrable
Securities by such Holder (the "Requisite Information"). In the
event the Holder fails to provide the Requisite Information in
its initial notice of its intention to distribute the Registrable
Securities pursuant to the Registration Statement, the Company
will promptly request such Holder to provide such Requisite
Information. As soon as practicable after the date such notice
is provided, and in any event within two Business Days after such
date, the Company shall either:
(i) (A) If necessary, prepare and file with the
Commission a posteffective amendment to the Shelf Registration or
a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or
file any other required document so that such Registration
Statement will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and so
that, as thereafter delivered to purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; (B) provide each Notice Holder
(as defined below) copies of any documents filed pursuant to
Section 2(d)(i)(A); and (C) inform each Notice Holder that the
Company has complied with its obligations in Section 2(d)(i)(A)
(or that, if the Company has filed a post-effective amendment to
the Shelf Registration which has not yet been declared effective,
the Company will notify the Notice Holder to that effect, will
use its reasonable efforts to secure the effectiveness of such
post-effective amendment and will immediately notify the Notice
Holder when the amendment has become effective); each Holder who
has given notice of intention to distribute such Holder's
Registrable Securities in accordance with Section 2(d) hereof (a
"Notice Holder") will sell all or any of such Registrable
Securities pursuant to the Shelf Registration and related
Prospectus only during the 45-day period commencing with the date
on which the Company gives notice, pursuant to Section
2(d)(i)(C), that the Registration Statement and Prospectus may be
used for such purpose (such 45-day period is referred to as a
"Selling Period"). The Notice Holders will not sell any
Registrable Securities pursuant to such Registration Statement or
Prospectus after such Selling Period without giving a new notice
of intention to sell pursuant to Section 2(d) hereof and
receiving a further notice from the Company pursuant to Section
2(d)(i)(C) hereof.
(ii) in the event (A) of the happening of any
event of the kind described in Section 3(c)(ii), 3(c)(iii),
3(c)(iv), 3(c)(v), or 3(c)(vi) hereof or (B) that, in the
judgment of the Company, it is advisable to suspend use of the
Prospectus for a discrete period of time due to pending material
corporate developments or similar material events that have not
yet been publicly disclosed and as to which the Company believes
public disclosure will be prejudicial to the Company, the Company
shall deliver a certificate in writing, signed by an authorized
executive officer of the Company, to the Notice Holders, the
Special Counsel and the Managing Underwriters, if any, to the
effect of the foregoing and, upon receipt of such certificate,
each such Notice Holder's Selling Period will not commence until
such Notice Holder's receipt of copies of the supplemented or
amended Prospectus provided for in Section 2(d)(i)(A) hereof, or
until it is advised in writing by the Company that the Prospectus
may be used and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus. The Company will use its
reasonable efforts to ensure that the use of the Prospectus may
be resumed, and the Selling Period will commence, as soon as
practicable and, in the case of a pending development or event
referred to in Section 2(d)(ii)(B) hereof, as soon as the earlier
of (x) public disclosure of such pending material corporate
development or similar material event or (y) in the judgment of
the Company, public disclosure of such material corporate
development or similar material event would not be prejudicial to
the Company. Notwithstanding the foregoing, the Company shall
not under any circumstances be entitled to exercise its right
under this Section 2(d)(ii) to defer the commencement of a
Selling Period except as follows: the Company may defer the
commencement of a Selling Period in accordance with this Section
2(d)(ii) for a period not to exceed 30 days in any three-month
period, or not to exceed an aggregate of 60 days in any 12-month
period, and the period in which a Selling Period is suspended
shall not exceed fifteen (15) days unless the Company shall
deliver to such Notice Holders a second notice to the effect set
forth above, which shall have the effect of extending the period
during which such Selling Period is deferred by up to an
additional fifteen (15) days, or such shorter period of time as
is specified in such second notice. In no event shall the
Company be permitted to extend the period during which such
Selling Period is deferred (a "Deferral Period") beyond such
thirty (30) day period from and after the date a Notice Holder
provides notice to the Company in accordance with this Section
2(d) of its intention to distribute Registrable Securities.
(e) The parties hereto agree that the Holders of
Registrable Securities will suffer damages, and that it would not
be feasible to ascertain the extent of such damages with
precision, if (i) the Initial Shelf Registration has not been
filed on or prior to the Filing Date, (ii) prior to the end of
the Effectiveness Period, the SEC shall have issued a stop order
suspending the effectiveness of the Shelf Registration or
proceedings have been initiated with respect to the Shelf
Registration under Section 8(d) or 8(e) of the Securities Act,
(iii) the aggregate number of days in any one Deferral Period
exceeds the periods permitted pursuant to Section 2(d)(ii) hereof
or (iv) the number of Deferral Periods exceeds the number
permitted pursuant to Section 2(d)(ii) hereof (each of the events
of a type described in any of the foregoing clauses (i) through
(iv) are individually referred to herein as an "Event," and the
Filing Date in the case of clause (i), the date on which the
effectiveness of the Shelf Registration has been suspended or
proceedings with respect to the Shelf Registration under Section
8(d) or 8(e) of the Securities Act have been commenced in the
case of clause (ii), the date on which the duration of a Deferral
Period exceeds the periods permitted by Section 2(d)(ii) hereof
in the case of clause (iii), and the date of the commencement of
a Deferral Period that causes the limit on the number of Deferral
Periods under Section 2(d)(ii) hereof to be exceeded in the case
of clause (iv), being referred to herein as an "Event Date").
Events shall be deemed to continue until the date of the
termination of such Event, which shall be the following dates
with respect to the respective types of Events: the date the
Initial Registration Statement is filed in the case of an Event
of the type described in clause (i), the date that all stop
orders suspending effectiveness of the Shelf Registration have
been removed and the proceedings initiated with respect to the
Shelf Registration under Section 8(d) or 8(e) of the Securities
Act have terminated, as the case may be, in the case of Events of
the types described in clause (ii), termination of the Deferral
Period which caused the aggregate number of days in any one
Deferral Period to exceed the number permitted by Section
2(d)(ii) to be exceeded in the case of Events of the type
described in clause (iii), and termination of the Deferral Period
the commencement of which caused the number of Deferral Periods
permitted by Section 2(d)(ii) to be exceeded in the case of
Events of the type described in clause (iv).
Accordingly, upon the occurrence of any Event and until such
time as there are no Events which have occurred and are
continuing (a "Damages Accrual Period"), commencing on the Event
Date on which such Damages Accrual Period began, the Company
agrees to pay, as liquidated damages, and not as a penalty, an
additional amount (the "Liquidated Damages"): (A)(i) to each
holder of a Note that is a Notice Holder, accruing at a rate
equal to one-half of one percent per annum (50 basis points) on
the aggregate principal amount of Notes held by such Notice
Holder and (ii) to each holder of Common Stock that is a Notice
Holder, accruing at a rate equal to one-half of one percent per
annum (50 basis points) calculated on an amount equal to the
product of (x) the then-applicable Conversion Price (as defined
in the Indenture), times (y) the number of shares of Common Stock
held by such holder; and (B) if the Damages Accrual Period
continues for a period in excess of thirty (30) days from the
Event Date, from and after the end of such thirty (30) days until
such time as there are no Events which have occurred and are
continuing, (i) to each holder of a Note (whether or not a Notice
Holder), accruing at a rate equal to one-half of one percent per
annum (50 basis points) on the aggregate principal amount of
Notes held by such holder and (ii) to each holder of Common Stock
(whether or not a Notice Holder), accruing at a rate equal to
one-half of one percent per annum (50 basis points) calculated on
an amount equal to the product of (x) the then applicable
Conversion Price (as defined in the Indenture), times (y) the
number of shares of Common Stock held by such holder.
Notwithstanding the foregoing, no Liquidated Damages shall accrue
under clause (A) for the preceding sentence during any period for
which Liquidated Damages accrue under clause (B) of the preceding
sentence or as to any Registrable Securities from and after the
expiration of the Effectiveness Period. The rate of accrual of
the Liquidated Damages with respect to any period shall not
exceed the rate provided for in this paragraph notwithstanding
the occurrence of multiple concurrent Events.
The Company shall pay the Liquidated Damages due on any
Notes or Common Stock by depositing with the Trustee under the
Indenture, in trust, for the benefit of the holders of Notes or
Common Stock or Notice Holders, as the case may be, entitled
thereto, at least one Business Day prior to the applicable
Damages Payment Date, sums sufficient to pay the Liquidated
Damages accrued or accruing since the last preceding Damages
Payment Date through such Damages Payment Date. The Liquidated
Damages shall be paid by the Company to the Record Holders on
each Damages Payment Date by wire transfer of immediately avail
able funds to the accounts specified by them or by mailing checks
to their registered addresses as they appear in the Note register
(as defined in the Indenture), in the case of the Notes, and in
the register of the Company for the Common Stock, in the case of
the Common Stock, if no such accounts have been specified on or
before the Damage Payment Date; provided, however, that any
Liquidated Damages accrued with respect to any Note or portion
thereof called for redemption on a redemption date, redeemed or
repurchased in connection with a Fundamental Change (as defined
in the Indenture) on a repurchase date, or converted into 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 Note 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 (or promptly
following the conversion date, in the case of conversion of a
Note). The Trustee shall be entitled, on behalf of the holders
of Notes, holders of Common Stock and Notice Holders, to seek any
available remedy for the enforcement of this Agreement, including
for the payment of such Liquidated Damages. Notwithstanding the
foregoing, the parties agree that the sole damages payable for a
violation of the terms of this Agreement with respect to which
Liquidated Damages are expressly provided shall be such
Liquidated Damages. Nothing shall preclude a Notice Holder or
Holder of Registrable Securities from pursuing or obtaining
specific performance or other equitable relief with respect to
this Agreement, in addition to the payment of Liquidated Damages.
All of the Company's obligations set forth in this Section
2(e) which are outstanding with respect to any Registrable
Securities at the time such security ceases to be a Registrable
Security shall survive until such time as all such obligations
with respect to such security have been satisfied in full
(notwithstanding termination of the Agreement pursuant to Section
8(o)).
The parties hereto agree that the Liquidated Damages
provided for in this Section 2(e) constitute a reasonable
estimate of the damages that may be incurred by Holders of
Registrable Securities (other than the Initial Purchaser) by
reason of the failure of the Shelf Registration to be filed or
declared effective or unavailable (absolutely or as a practical
matter) for effecting resales of Registrable Securities, as the
case may be, in accordance with the provisions hereof.
3. Registration Procedures. In connection with the
Company's registration obligations under Section 2 hereof, the
Company shall effect such registrations to permit the sale of the
Registrable Securities in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Company
shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration
Statement or Registration Statements on any appropriate form
under the Securities Act available for the sale of the
Registrable Securities by the Holders thereof in accordance with
the intended method or methods of distribution thereof, and use
its reasonable efforts to cause each such Registration Statement
to become effective and remain effective as provided herein;
provided, that before filing any such Registration Statement or
Prospectus or any amendments or supplements thereto (other than
documents that would be incorporated or deemed to be incorporated
therein by reference and that the Company is required by
applicable securities laws or stock exchange requirements to
file) the Company shall furnish to the Initial Purchaser, the
Special Counsel and the Managing Underwriters of such offering,
if any, copies of all such documents proposed to be filed, which
documents will be subject to the review of the Initial Purchaser,
the Special Counsel and such Managing Underwriters, and the
Company shall not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto
(other than such documents which, upon filing, would be
incorporated or deemed to be incorporated by reference therein
and that the Company is required by applicable securities laws or
stock exchange requirements to file) to which the Holders of a
majority of the Registrable Securities covered by such
Registration Statement, the Initial Purchaser or the Special
Counsel shall reasonably object in writing within two full
Business Days.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously
effective for the applicable period specified in Section 2; cause
the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such Registration Statement and Prospectus during the
applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration
Statement as so amended or such Prospectus as so supplemented.
(c) Notify the Notice Holders, the Initial Purchaser,
the Special Counsel and the Managing Underwriters, if any,
promptly, and (if requested by any such person) confirm such
notice in writing, (i) when a Prospectus, any Prospectus
supplement, a Registration Statement or a post-effective
amendment to a Registration Statement has been filed with the
SEC, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective,
(ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (v) of the existence of any fact or
happening of any event which makes any statement of a material
fact in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference untrue or which would require the making of any changes
in the Registration Statement or Prospectus in order that, in the
case of the Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be
appropriate.
(d) Use its reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the
earliest possible moment.
(e) If reasonably requested by the Initial Purchaser
or the Managing Underwriters, if any, or the Holders of a
majority of the Registrable Securities being sold, (i) promptly
incorporate in a Prospectus supplement or post-effective
amendment to a Registration Statement such information as the
Initial Purchaser, the Special Counsel, the Managing
Underwriters, if any, or such Holders, in connection with any
offering of Registrable Securities, agree should be included
therein as required by applicable law, and (ii) make all required
filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, that the
Company shall not be required to take any actions under this
Section 3(e) that are not, in the reasonable opinion of counsel
for the Company, in compliance with applicable law.
(f) Furnish to each selling Holder, the Special
Counsel and the Initial Purchaser, and each Managing Underwriter,
if any, without charge, at least one conformed copy of the
Registration Statement or Statements and any amendment thereto,
including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits (unless requested in writing by such
selling Holder, counsel, the Initial Purchaser or underwriter).
(g) Deliver to each selling Holder, the Special
Counsel and the Initial Purchaser and each Managing Underwriter,
if any, in connection with any offering of Registrable
Securities, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement
thereto as such persons may reasonably request; and the Company
hereby consents to the use of such Prospectus or each amendment
or supplement thereto by each of the selling Holders of
Registrable Securities and the underwriters, if any, in
connection with any offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable
Securities, to register or qualify or cooperate with the selling
Holders, the Managing Underwriters, if any, and the Special
Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as
any selling Holder or Managing 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 or advisable to enable
the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement;
provided, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it is not then
so qualified or (ii) take any action that would subject it to
general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities
within the United States, except as may be required solely as a
consequence of the nature of such selling Holder, in which case
the Company will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such
approvals, as may be necessary to enable the selling Holder or
Holders thereof or the Managing Underwriters, if any, to
consummate the disposition of such Registrable Securities.
(j) During any Selling Period (other than during a
Deferral Period), immediately upon the existence of any fact or
the occurrence of any event as a result of which a Registration
Statement shall contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or a
Prospectus shall contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
promptly prepare and file (subject to the proviso in Section
3(a)) a post-effective amendment to each Registration Statement
or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required
document (such as a Current Report on Form 8-K) that would be
incorporated by reference into the Registration Statement so that
the Registration Statement shall not contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and so that the Prospectus will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder,
and, in the case of a post-effective amendment to a Registration
Statement, use its reasonable efforts to cause it to become
effective as soon as practicable.
(k) Enter into such agreements (including, in the
event of an Underwritten Offering, an underwriting agreement in
form, scope and substance as is customary in Underwritten
Offerings) and take all such other actions in connection
therewith (including, in the event of an Underwritten Offering,
those reasonably requested by the Managing Underwriters, if any,
or the Holders of a majority of the Registrable Securities being
sold) in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, whether or not an
underwriting agreement is entered into, and if the registration
is an underwritten registration, (i) make such representations
and warranties, subject to the Company's ability to do so, to the
Holders of such Registrable Securities and the underwriters with
respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each
case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the
same if and when requested; (ii) use its reasonable efforts 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,
Special Counsel and the Holders of a majority of the Registrable
Securities being sold) addressed to each of the underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such Special Counsel and Managing
Underwriters; (iii) use its reasonable efforts to obtain "cold
comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary,
any other certified public accountants of any business acquired
or to be acquired by the Company for which financial statements
and financial data are, or are required to be, included in the
Registration Statement), addressed to each of the Managing
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
(iv) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority of the Registrable
Securities being sold, the Special Counsel and the Managing
Underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company. The above shall be done at each closing under such
underwriting or similar agreement as and to the extent required
thereunder.
(l) If requested in connection with a disposition of
Registrable Securities pursuant to a Registration Statement, make
available for inspection by a representative of the Holders of
Registrable Securities being sold, any Managing Underwriter
participating in any disposition of Registrable Securities, if
any, and any attorney or accountant retained by such selling
Holders or underwriter, financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries, and cause the executive officers, directors and
employees of the Company and its subsidiaries to supply all
information reasonably requested by any such representative,
Managing Underwriter, attorney or accountant in connection with
such disposition; subject to reasonable assurances by each such
person that such information will only be used in connection with
matters relating to such Registration Statement; provided,
however, that such persons shall first agree in writing with the
Company that any information that is reasonably and in good faith
designated by the Company in writing as confidential at the time
of delivery of such information shall be kept confidential by
such persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure
of such information is required by law (including any disclosure
requirements pursuant to Federal securities laws in connection
with the filing of any Registration Statement or the use of any
prospectus referred to in this Agreement), (iii) such information
becomes generally available to the public other than as a result
of a disclosure or failure to safeguard by any such 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.
(m) Comply with all applicable rules and regulations
of the SEC and make generally available to its securityholders
earning statements (which need not be audited) satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar 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 of the Company commencing
after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(n) Cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such
names as such Holders may request.
(o) Provide the Trustee under the Indenture and the
transfer agent for the Common Stock with printed certificates for
the Registrable Securities which are in a form eligible for
deposit with The Depository Trust Company.
(p) Cause the Common Stock covered by the Registration
Statement to be listed on each securities exchange or quoted on
each automated quotation system on which any of the Company's
"Common Stock," as that term is defined in the Indenture, is then
listed or quoted) no later than the date the Registration
Statement is declared effective and, in connection therewith, to
the extent applicable, to make such filings under the Exchange
Act (e.g., the filing of a Registration Statement on Form 8-A)
and to have such filings declared effective thereunder.
(q) Cooperate and assist in any filings required to be
made with the National Association of Securities Dealers, Inc.
4. Holder's Obligations. Each Holder agrees, by
acquisition of the Notes and Registrable Securities, that no
Holder of Registrable Securities shall be entitled to sell any of
such Registrable Securities pursuant to a Registration Statement
or to receive a Prospectus relating thereto, unless such Holder
has furnished the Company with the notice required pursuant to
Section 2(d) hereof and such other information regarding such
Holder and the distribution of such Registrable Securities as may
be required to be included in the Registration Statement or the
Prospectus or as the Company may from time to time reasonably
request. The Company may exclude from such registration the
Registrable Securities of any Holder who does not furnish such
information provided above for so long as such information is not
so furnished. Each Holder of Registrable Securities as to which
any Registration Statement is being effected agrees promptly to
furnish to the Company all information required to be disclosed
in order to make the information previously furnished to the
Company by such Holder not misleading. Any sale of any
Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection
with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact
relating to such Holder or its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any
material fact relating to such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in light of
the circumstances under which they were made, not misleading.
5. Registration Expenses. All fees and expenses incident
to the Company's performance of or compliance with this Agreement
shall be borne by the Company whether or not any of the
Registration Statements become effective. Such fees and expenses
shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (x)
with respect to filings required to be made with the SEC or the
National Association of Securities Dealers, Inc. and (y) relating
to compliance with federal securities or Blue Sky laws
(including, without limitation, fees and disbursements of Special
Counsel in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as
the Managing Underwriters, if any, or Holders of a majority of
the Registrable Securities being sold may designate)), (ii)
printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form
eligible for deposit with The Depository Trust Company and of
printing prospectuses if the printing of prospectuses is
requested by the Special Counsel or the Holders of a majority of
the Registrable Securities included in any Registration
Statement), (iii) the reasonable fees and disbursements of the
Trustee and its counsel and of the registrar and transfer agent
for the Common Stock, (iv) messenger, telephone and delivery
expenses relating to the performance of the Company's obligations
hereunder, (v) reasonable fees and disbursements of counsel for
the Company and the Special Counsel in connection with the Shelf
Registration (provided that the Company shall not be liable for
the fees and expenses of more than one separate firm, in addition
to counsel for the Company, for all parties participating in any
transaction hereunder), (vi) fees and disbursements of all
independent certified public accountants referred to in Section
3(k)(iii) hereof (including the expenses of any special audit and
"cold comfort" letters required by or incident to such
performance) and (vii) Securities Act liability insurance, to the
extent obtained by the Company in its sole discretion. 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
any annual audit, the fees and expenses incurred in connection
with the listing of the securities to be registered on any
securities exchange on which similar securities issued by the
Company are then listed and the fees and expenses of any person,
including special experts, retained by the Company.
Notwithstanding the provisions of this Section 5, each seller of
Registrable Securities shall pay all selling expenses and all
registration expenses to the extent that the Company is
prohibited by applicable Blue Sky laws from paying for or on
behalf of such seller of Registrable Securities.
6. Indemnification.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless the Initial Purchaser, each Holder
and each person, if any, who controls the Initial Purchaser or
any Holder (within the meaning of either Section 15 of the
Securities Act or Section 20(a) of the Exchange Act) from and
against all losses, liabilities, damages and expenses (including,
without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such
action or claim) (collectively, "Losses"), arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such Losses arise out
of or are based upon the information relating to the Initial
Purchaser or any Holder furnished to the Company in writing by
the Initial Purchaser or such Holder expressly for use therein;
provided, that the Company shall not be liable to any Holder of
Registrable Securities (or any person controlling such Holder) to
the extent that any such Losses arise out of or are based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if either
(A)(i) such Holder failed to send or deliver a copy of the
Prospectus with or prior to the delivery of written confirmation
of the sale by such Holder to the person asserting the claims
from which such Losses arise and (ii) the Prospectus would have
corrected such untrue statement or alleged untrue statement or
such omission or alleged omission, or (B)(x) such untrue
statement or alleged untrue statement, omission or alleged
omission is corrected in an amendment or supplement to the
Prospectus and (y) having previously been furnished by or on
behalf of the Company with copies of the Prospectus as so amended
or supplemented, such Holder thereafter fails to deliver such
Prospectus as so amended or supplemented, with or prior to the
delivery of written confirmation of the sale of a Registrable
Security to the person asserting the claim from which such Losses
arise. The Company shall also indemnify each underwriter and
each person who controls such person (within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) to the same extent and with the same limitations as provided
above with respect to the indemnification of the Initial
Purchaser or the Holders of Registrable Securities.
(b) Indemnification by Holder of Registrable
Securities. Each Holder agrees, and such agreement shall be
evidenced by the Holder delivering the notice described in
Section 2(d) hereof, severally and not jointly to indemnify and
hold harmless the Initial Purchaser, the other selling Holders,
the Company, its directors, its officers who sign a Registration
Statement, and each person, if any, who controls the Company, the
Initial Purchaser and any other selling Holder (within the
meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act), from and against all losses arising out of
or based upon any untrue statement of a material fact contained
in any Registration Statement, Prospectus or preliminary
prospectus or arising out of or based upon any omission of a
material fact required to be stated therein or necessary to make
the statements therein not misleading, to the extent, but only to
the extent, that such untrue statement or omission is contained
in any information relating to such Holder so furnished in
writing by such Holder to the Company expressly for use in such
Registration Statement or Prospectus. In no event shall the
liability of any selling Holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the
proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity
may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any
such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the
Initial Purchaser and all persons, if any, who control the
Initial Purchaser within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (b) the fees
and expenses of more than one separate firm (in addition to any
local counsel) for all Holders and all persons, if any, who
control any Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and (c) the
fees and expenses of more than one separate firm (in addition to
any local counsel) for the Company, its directors, its officers
who sign a Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section,
and that all such fees and expenses shall be reimbursed as they
are incurred. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company.
In such case involving the Initial Purchaser and persons who
control the Initial Purchaser, such firm shall be designated in
writing by Xxxxxx Xxxxxxx & Co. Incorporated. In such case
involving the Holders and such persons who control Holders, such
firm shall be designated in writing by the Holders of the
majority of Registrable Securities sold pursuant to the
Registration Statement. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be
a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel
as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party, shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release
of such indemnified party from all liability or claims that are
the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for
in this Section 6 is unavailable to an indemnified party under
Section 6(a) or 6(b) hereof in respect of any Losses or is
insufficient to hold such indemnified party harmless, then each
applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such Losses, (i) in such
proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and
the indemnified party or parties on the other hand or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above
but also the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the initial placement
(before deducting expenses) of the Notes pursuant to the
Placement Agreement. Benefits received by the Initial Purchaser
shall be deemed to be equal to the total purchase discounts and
commissions received by it pursuant to the Placement Agreement
and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Notes registered under the
Securities Act. Benefits received by any underwriter shall be
deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus
forming a part of the Registration Statement which resulted in
such Losses. The relative fault of the Holders on the one hand
and the Company on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Holders or by the Company and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this paragraph
are several in proportion to the respective number of Registrable
Securities they have sold pursuant to a Registration Statement,
and not joint.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were
determined by pro rata allocation or by any other method or
allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as
a result of the Losses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding this Section
6(d), an indemnifying party that is a selling Holder of
Registrable Securities shall not be required to contribute any
amount in excess of the amount by which the total price at which
the Registrable Securities sold by such indemnifying party and
distributed to the public were offered to the public exceeds the
amount of any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement
obligations of the Company hereunder shall be in addition to any
liability the Company may otherwise have hereunder, under the
Placement Agreement or otherwise. The provisions of this Section
6 shall survive so long as Registrable Securities remain
outstanding, notwithstanding any transfer of the Registrable
Securities by any Holder or any termination of this Agreement.
The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Initial Purchaser, any
Holder or any person controlling any Holder, or the Company, its
officers or directors or any person controlling the Company and
(iii) the sale of any Registrable Securities by any Holder.
7. Information Requirements.
(a) The Company shall file the reports required to be
filed by it under the Securities Act and the Exchange Act, and if
at any time the Company is not required to file such reports, it
will, upon the request of any Holder of Registrable Securities,
make publicly available other information so long as necessary to
permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act. The Company further covenants that it will
cooperate with any Holder of Registrable Securities and take such
further reasonable action as any Holder of Registrable Securities
may reasonably request (including, without limitation making such
reasonable representations as any such Holder may reasonably
request), all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions
provided by Rule 144 and Rule 144A under the Securities Act.
Upon the request of any Holder of Registrable Securities, the
Company shall deliver to such Holder a written statement as to
whether it has complied with such filing requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company to register any of its securities
under any section of the Exchange Act.
(b) The Company shall file the reports required to be
filed by it under the Exchange Act and shall comply with all
other requirements set forth in the instructions to Form S-3 in
order to allow the Company to be eligible to file registration
statements on Form S-3.
8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company
of its obligations under this Agreement, each Holder of
Registrable Securities, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this
Agreement; provided that the sole damages payable for a violation
of the terms of this Agreement for which Liquidated Damages are
expressly provided pursuant to Section 2(e) hereof shall be such
Liquidated Damages. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it
shall waive the defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not,
as of the date hereof and shall not, on or after the date of this
Agreement, enter into any agreement with respect to its
securities which conflicts with the rights granted to the Holders
of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with
the rights granted to the holders of the Company's securities
under any other agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless
the Company has obtained the written consent of Holders of a
majority of the then outstanding Common Stock constituting
Registrable Securities (with Holders of Notes deemed to be the
Holders, for purposes of this Section, of the number of
outstanding shares of Common Stock into which such Notes are
convertible). Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant
to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders; provided, that
the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing and
shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier or (iii) one
business day after being deposited with a reputable next-day
courier, postage prepaid, to the parties as follows:
(x) if to a Holder of Registrable Securities, at
the most current address given by such Holder to the Company
in accordance with the provisions of Section 8(e);
(y) if to the Company, to:
MedImmune, Inc.
00 Xxxx Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy No.: (000) 000-0000
(Confidential)
with a copy to:
Xxxxx Xxxxxxxxxx
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
and
(z) if to the Special Counsel to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy No: (000) 000-0000
or to such other address as such person may have furnished to the
other persons identified in this Section 8(d) in writing in
accordance herewith.
(e) Owner of Registrable Securities. The Company will
maintain, or will cause its registrar and transfer agent to
maintain, a register with respect to the Registrable Securities
in which all transfers of Registrable Securities of which the
Company has received notice will be recorded. The Company may
deem and treat the person in whose name Registrable Securities
are registered in such register of the Company as the owner
thereof for all purposes, including without limitation, the
giving of notices under this Agreement.
(f) Approval of Holders. Whenever the consent or
approval of Holders of a specified percentage of Registrable
Securities is required hereunder, (i) Holders of Notes shall be
deemed to be Holders, for such purposes, of the number of
outstanding shares of Common Stock into which such Notes are
convertible and (ii) Registrable Securities held by the Company
or its affiliates (as such term is defined in Rule 405 under the
Securities Act) (other than the Initial Purchaser or subsequent
Holders of Registrable Securities if such subsequent Holders are
deemed to be such affiliates solely by reason of their holdings
of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the
Holders of such required percentage.
(g) Successors and Assigns. Any person who purchases
any Registrable Securities from an Initial Purchaser shall be
deemed, for purposes of this Agreement, to be an assignee of such
Initial Purchaser. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the
parties and shall inure to the benefit of and be binding upon
each Holder of any Registrable Securities.
(h) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be original and all of which taken together shall constitute one
and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE
OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by
such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such which
may be hereafter declared invalid, illegal, void or
unenforceable.
(l) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and is
intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of
the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable
Securities. Except as provided in the Placement Agreement, there
are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein, with respect to the
registration rights granted by the Company with respect to the
Registrable Securities. This Agreement supersedes all prior
agreements and understandings among the parties with respect to
such registration rights.
(m) Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement, or where any
provision hereof is validly asserted as a defense, the prevailing
party, as determined by the court, shall be entitled to recover
reasonable attorneys' fees in addition to any other available
remedy.
(n) Further Assurances. Each of the parties hereto
shall use all reasonable efforts to take, or cause to be taken,
all appropriate action, do or cause to be done all things
reasonably necessary, proper or advisable under applicable law,
and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the
other documents contemplated hereby and consummate and make
effective the transactions contemplated hereby.
(o) Termination. This Agreement and the obligations
of the parties hereunder shall terminate upon the end of the
Effectiveness Period, except for any liabilities or obligations
under Sections 4, 5 or 6 hereof and the obligations to make
payments of and provide for Liquidated Damages under Section 2(e)
hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in
accordance with their terms.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
MEDIMMUNE, INC.
By: /s/Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: President and
Chief Operating Officer
Accepted as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/Xxxxxxx Keoderitz
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
