EXHIBIT 4.5
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of October 16, 2001
By and Among
ALARIS MEDICAL SYSTEMS, INC.,
as Issuer,
and
UBS WARBURG LLC and BEAR, XXXXXXX & CO. INC.,
as Initial Purchasers
11-5/8% Senior Secured Notes due 2006
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TABLE OF CONTENTS
Page
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1. Definitions..........................................................1
2. Exchange Offer.......................................................4
3. Shelf Registration...................................................7
4. Liquidated Damages...................................................8
5. Registration Procedures.............................................10
6. Registration Expenses...............................................18
7. Indemnification.....................................................19
8. Rules 144 and 144A..................................................22
9. Underwritten Registrations..........................................22
10. Miscellaneous.......................................................23
(a) No Inconsistent Agreements....................................23
(b) Adjustments Affecting Registrable Notes.......................23
(c) Amendments and Waivers........................................23
(d) Notices.......................................................23
(e) Successors and Assigns........................................25
(f) Counterparts..................................................25
(g) Headings......................................................25
(h) Governing Law.................................................25
(i) Severability..................................................25
(j) Securities Held by the Issuer or Its Affiliates...............25
(k) Third-Party Beneficiaries.....................................25
(l) Attorneys' Fees...............................................25
(m) Entire Agreement..............................................26
SIGNATURES...............................................................S-1
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REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this "AGREEMENT") is
dated as of October 16, 2001, by and between ALARIS MEDICAL SYSTEMS,
INC., a Delaware corporation (the "ISSUER"), on the one hand, and UBS
WARBURG LLC and BEAR, XXXXXXX & CO. INC. (the "INITIAL PURCHASERS"), on
the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of October 11, 2001, by and among the Issuer and the Initial
Purchasers (the "PURCHASE AGREEMENT"), relating to the offering of $170,000,000
aggregate principal amount of the Issuer's 11-5/8% Senior Secured Notes due 2006
(the "NOTES"). The execution and delivery of this Agreement is a condition to
the Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"ACTION" shall have the meaning set forth in Section 7(c)
hereof.
"AGREEMENT" shall have the meaning set forth in the first
introductory paragraph hereto.
"APPLICABLE PERIOD" shall have the meaning set forth in Section 2(b)
hereof.
"BOARD OF DIRECTORS" shall have the meaning set forth in Section 5
hereof.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"COMMISSION" shall mean the Securities and Exchange Commission.
"DAY" shall mean a calendar day.
"DAMAGES PAYMENT DATE" shall have the meaning set forth in Section
4(b) hereof.
"DELAY PERIOD" shall have the meaning set forth in Section 5 hereof.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
3(b) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" shall have the meaning set forth in Section 2(a)
hereof.
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"EXCHANGE OFFER" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning set
forth in Section 2(a) hereof.
"HOLDER" shall mean any holder of a Registrable Note or Registrable
Notes.
"INDENTURE" shall mean the Indenture, dated as of October 16, 2001,
by and between the Issuer and The Bank of
New York as trustee, pursuant to which
the Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the first
introductory paragraph hereof.
"INSPECTORS" shall have the meaning set forth in Section 5(n)
hereof.
"ISSUE DATE" shall mean October 16, 2001, the date of original
issuance of the Notes.
"ISSUER" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Issuer's permitted successors and
assigns.
"LEGAL HOLIDAY" shall mean a Saturday, a Sunday or a day on which
banking institutions in
New York,
New York are required by law, regulation or
executive order to remain closed.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section
4(a) hereof.
"LOSSES" shall have the meaning set forth in Section 7(a) hereof.
"NASD" shall have the meaning set forth in Section 5(s) hereof.
"NOTES" shall have the meaning set forth in the second introductory
paragraph hereto.
"PARTICIPANT" shall have the meaning set forth in Section 7(a)
hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 2(b) hereof.
"PERSON" shall mean an individual, corporation, partnership, joint
venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"PRIVATE EXCHANGE" shall have the meaning set forth in Section 2(b)
hereof.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in Section
2(b) hereof.
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"PROSPECTUS" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any 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 prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"PURCHASE AGREEMENT" shall have the meaning set forth in the second
introductory paragraph hereof.
"RECORDS" shall have the meaning set forth in Section 5(n) hereof.
"REGISTRABLE NOTES" shall mean each Note upon its original issuance
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(iv) hereof is applicable upon original issuance and at all times subsequent
thereto and each Private Exchange Note upon original issuance thereof and at all
times subsequent thereto, in each case until (i) a Registration Statement (other
than, with respect to any Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Note,
Exchange Note or Private Exchange Note has been declared effective by the
Commission and such Note, Exchange Note or such Private Exchange Note, as the
case may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for
an Exchange Note or Exchange Notes that may be resold without restriction under
state and federal securities laws, (iii) such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding for purposes of the
Indenture or (iv) such Note, Exchange Note or Private Exchange Note has been
sold in compliance with Rule 144 or is salable pursuant to Rule 144(k).
"REGISTRATION DEFAULT" shall have the meaning set forth in Section
4(a) hereof.
"REGISTRATION STATEMENT" shall mean any appropriate registration
statement of the Issuer covering any of the Registrable Notes filed with the
Commission under the Securities Act, and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"REQUESTING PARTICIPATING BROKER-DEALER" shall have the meaning set
forth in Section 2(b) hereof.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the Commission providing for
offers and sales of securities made in compliance therewith resulting in offers
and sales by subsequent Holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
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"RULE 144A" shall mean Rule 144A promulgated under the Securities
Act, as such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the Commission.
"RULE 415" shall mean Rule 415 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"SHELF FILING EVENT" shall have the meaning set forth in Section
2(c) hereof.
"SHELF REGISTRATION" shall have the meaning set forth in Section
3(a) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a Registration Statement
filed in connection with a Shelf Registration.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"TRUSTEE" shall mean the trustee under the Indenture and the trustee
(if any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
"UNDERWRITTEN REGISTRATION" OR "UNDERWRITTEN OFFERING" shall mean a
registration in which securities of the Issuer is sold to an underwriter for
reoffering to the public.
Section 2. EXCHANGE OFFER
(a) The Issuer shall (i) file a Registration Statement (the
"EXCHANGE OFFER REGISTRATION STATEMENT") within 75 days after the Issue Date
with the Commission on an appropriate registration form with respect to a
registered offer (the "EXCHANGE OFFER") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes (the "EXCHANGE
NOTES") that are identical in all material respects to the Notes (except that
the Exchange Notes shall not contain terms with respect to transfer restrictions
or Liquidated Damages upon a Registration Default), (ii) use its reasonable best
efforts to cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act within 150 days after the Issue Date and
(iii) use its reasonable best efforts to consummate the Exchange Offer within
180 days after the Issue Date. Upon the Exchange Offer Registration Statement
being declared effective by the Commission, the Issuer will offer the Exchange
Notes in exchange for surrender of the Notes. The Issuer shall keep the Exchange
Offer open for not less than 30 days (or longer if required by applicable law)
after the date notice of the Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be required
to represent to the Issuer in writing that (i) any Exchange Notes to be received
by it will be acquired in the ordinary course of its business, (ii) it has no
arrangement or understanding with any Person to participate in the
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distribution (within the meaning of the Securities Act) of the Exchange Notes
in violation of the provisions of the Securities Act, (iii) it is not an
affiliate (as defined in Rule 405 under the Securities Act) of the Issuer or,
if it is an affiliate, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, it is not engaged in, and does not intend
to engage in, a distribution of Exchange Notes, (v) if such Holder is a
broker-dealer (a "PARTICIPATING BROKER-DEALER") that will receive Exchange
Notes for its own account in exchange for Notes that were acquired as a
result of market-making or other trading activities, it will deliver a
prospectus in connection with any resale of such Exchange Notes and (vi) such
Holder has full power and authority to transfer the Notes in exchange for the
Exchange Notes and that the Issuer will acquire good and unencumbered title
thereto free and clear of any liens, restrictions, charges or encumbrances
and not subject to any adverse claims.
(b) The Issuer and the Initial Purchasers acknowledge that the
staff of the Commission has taken the position that any Participating
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Securities Act and must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Notes (other than
a resale of an unsold allotment from the original offering of the Notes).
The Issuer and the Initial Purchasers also acknowledge that the
staff of the Commission has taken the position that if the Prospectus contained
in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "REQUESTING PARTICIPATING BROKER-DEALER"), the Issuer agrees to
use its reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective for a period of at least 180 days after the
date on which the Exchange Registration Statement is declared effective, or such
longer period if extended pursuant to the last paragraph of Section 5 hereof
(such period, the "APPLICABLE PERIOD"), or such earlier date as all Requesting
Participating Broker-Dealers shall have notified the Issuer in writing that such
Requesting Participating Broker-Dealers have resold all Exchange Notes acquired
in the Exchange Offer. The Issuer shall include a plan of distribution in such
Exchange Offer Registration Statement that meets the requirements set forth in
the preceding paragraph.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers or any Holder, as the case may be, holds any Notes acquired by it
that have, or that are reasonably likely to be determined to have, the status of
an unsold allotment in an initial distribution, or if any Holder is not entitled
to participate in the Exchange Offer, the Issuer upon the request of the Initial
Purchasers or any such Holder, as the case may be, shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchasers or any such Holder, as the case may be, in exchange (the
"PRIVATE EXCHANGE") for such Notes held by the Initial Purchasers or any such
Holder, as the case may be, a like principal amount of notes (the "PRIVATE
EXCHANGE NOTES") of the Issuer that
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are identical in all material respects to the Exchange Notes except that the
Private Exchange Notes may be subject to restrictions on transfer and bear a
legend to such effect. The Private Exchange Notes shall be issued pursuant to
the same indenture as the Exchange Notes and bear the same CUSIP number as
the Exchange Notes.
For each Note surrendered in the Exchange Offer, the Holder will
receive an Exchange Note having a principal amount equal to that of the
surrendered Note. Interest on each Exchange Note and Private Exchange Note
issued pursuant to the Exchange Offer and in the Private Exchange will accrue
from the last interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on the Notes,
from the Issue Date.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the Issuer shall have no further registration obligations other than
the Issuer's continuing registration obligations with respect to (i) Private
Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and
(iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2
applies.
In connection with the Exchange Offer, the Issuer shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of
New York;
(3) permit Holders to withdraw tendered Notes at any time prior to
the close of business,
New York time, on the last Business Day on which
the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuer shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn by the Holders pursuant to the Exchange Offer and the Private
Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for
cancelation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
such Holder of Notes, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Registrable Notes of such
Holder so accepted for exchange.
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The Exchange Offer and the Private Exchange shall not be subject
to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any
applicable interpretation of the staff of the Commission, (ii) no action or
proceeding shall have been instituted or threatened in any court or by any
governmental agency which might materially impair the ability of the Issuer
to proceed with the Exchange Offer or the Private Exchange, and no material
adverse development shall have occurred in any existing action or proceeding
with respect to the Issuer and (iii) all governmental approvals shall have
been obtained, which approvals the Issuer deems necessary for the
consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture (in either case, with such changes as are necessary to comply
with any requirements of the Commission to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA and shall provide that (a) the Exchange Notes shall not be subject to the
transfer restrictions set forth in the Indenture and (b) the Private Exchange
Notes shall be subject to the transfer restrictions set forth in the Indenture.
The Indenture or such other indenture shall provide that when a vote or consent
of the Holders is required, the Exchange Notes, the Private Exchange Notes and
the Notes shall vote and consent together on all matters as one class and that
none of the Exchange Notes, the Private Exchange Notes or the Notes will have
the right to vote or consent as a separate class on any matter.
(c) In the event that (i) applicable law or interpretations of the
staff of the Commission do not permit the Issuer to effect the Exchange Offer,
(ii) for any reason the Exchange Offer is not consummated within 180 days of the
Issue Date, (iii) any Holder, is prohibited by law or the applicable
interpretations of the staff of the Commission from participating in the
Exchange Offer, (iv) in the case of any Holder that participates in the Exchange
Offer, such Holder does not receive Exchange Notes on the date of the exchange
that may be sold without restriction under state and federal securities laws
(other than due solely to the status of such Holder as an affiliate of the
Issuer within the meaning of the Securities Act) or (v) any Initial Purchaser so
requests with respect to Notes or Private Exchange Notes that have, or that are
reasonably likely to be determined to have, the status of unsold allotments in
an initial distribution (each such event referred to in clauses (i) through (v)
of this sentence, a "SHELF FILING EVENT"), then the Issuer shall file a Shelf
Registration pursuant to Section 3 hereof.
Section 3. SHELF REGISTRATION
If at any time a Shelf Filing Event shall occur, then:
(a) SHELF REGISTRATION. The Issuer shall file with the Commission
a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Notes not exchanged in the
Exchange Offer, Private Exchange Notes and Exchange Notes as to which Section
2(c)(iv) is applicable (the "SHELF REGISTRATION"). The Issuer shall file with
the Commission the Shelf Registration as promptly as practicable and in any
event, on or prior to 30 days after a Shelf Filing Event has occurred. The Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in the manner or
manners designated by them (including, without limitation, one or more
underwritten offerings).
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The Issuer shall not permit any securities other than the Registrable Notes
to be included in the Shelf Registration.
(b) The Issuer shall use its reasonable best efforts (x) to cause
the Shelf Registration to be declared effective under the Securities Act on or
prior to 90 days after a Shelf Filing Event has occurred and (y) to keep the
Shelf Registration continuously effective under the Securities Act for the
period ending on the date which is two years from the Issue Date, subject to
extension pursuant to the penultimate paragraph of Section 5 hereof (the
"EFFECTIVENESS PERIOD"), or such shorter period ending when all Registrable
Notes covered by the Shelf Registration have been sold in the manner set forth
and as contemplated in the Shelf Registration; PROVIDED, HOWEVER, that (i) the
Effectiveness Period in respect of the Shelf Registration shall be extended to
the extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as otherwise
provided herein and (ii) the Issuer may suspend the effectiveness of the Shelf
Registration Statement by written notice to the Holders solely as a result of
the filing of a post-effective amendment to the Shelf Registration Statement to
incorporate annual audited financial information with respect to the Issuer
where such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related Prospectus.
(c) SUPPLEMENTS AND AMENDMENTS. The Issuer agrees to supplement or
make amendments to the Shelf Registration Statement as and when required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, or if reasonably requested by the
Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter of such Registrable
Notes.
Section 4. LIQUIDATED DAMAGES
(a) The Issuer and the Initial Purchasers agree that the Holders
will suffer damages if the Issuer fails to fulfill its obligations under Section
2 or Section 3 hereof and that it would not be feasible to ascertain the extent
of such damages with precision. Accordingly, the Issuer agrees that if:
(i) the Exchange Offer Registration Statement is not filed with
the Commission on or prior to the 75th day following the Issue Date or, if
that day is not a Business Day, the then next day that is a Business Day,
(ii) the Exchange Offer Registration Statement is not declared
effective on or prior to the 150th day following the Issue Date or, if that
day is not a Business Day, then the next day that is a Business Day,
(iii) the Exchange Offer is not consummated on or prior to the
180th day following the Issue Date, or, if that day is not a Business Day,
then the next day that is a Business Day; or
(iv) the Shelf Registration Statement is required to be filed but
is not filed or declared effective within the time periods set forth herein
or is declared effective by such date
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but thereafter ceases to be effective or usable prior to the expiration
of the Effectiveness Period, except if the Shelf Registration ceases to be
effective or usable as specifically permitted by the penultimate paragraph
of Section 5 hereof
(each such event referred to in clauses (i) through (iv) a "REGISTRATION
DEFAULT"), liquidated damages in the form of additional cash interest
("LIQUIDATED DAMAGES") will accrue on the affected Notes and the affected
Exchange Notes, as applicable as follows: (1) in the case of clause (i) above,
from the first Business Day after the 75th day after the Issue Date until but
excluding the date of the Exchange Offer Registration Statement is filed
whereupon such Registration Default shall be deemed to have been cured; (2) in
the case of clause (ii) above, from the first Business Day after the 150th day
after the Issue Date until but excluding the date the Exchange Offer
Registration Statement is declared effective by the Commission whereupon such
Registration Default shall be deemed to have been cured; and (3) in the case of
clause (iii) above, from the first Business Day after the 180th day after the
Issue Date until but excluding the date the Exchange Offer is consummated
whereupon such Registration Default shall be deemed to have been cured. The rate
of Liquidated Damages will be 0.25% per annum for the first 90-day period
immediately following the occurrence of a Registration Default, increasing by an
additional 0.25% per annum with respect to each subsequent 90-day period up to a
maximum amount of additional interest of 1.00% per annum, from and including the
date on which any such Registration Default shall occur to, but excluding, the
earlier of (1) the date on which all Registration Defaults have been cured or
(2) the date on which all the Notes and Exchange Notes otherwise become freely
transferable by Holders other than affiliates of the Issuer without further
registration under the Securities Act. Upon submission to the Commission of the
Exchange Offer Registration Statement, the effectiveness of the Exchange Offer
Registration Statement or the consummation of the Exchange Offer, as applicable,
the interest rate borne on the affected Notes or the affected Exchange Notes
will be reduced by the full amount of any such increase to the extent the
increase related to the failure of such event to have occurred. If, after the
cure of all Registration Defaults then in effect, there is a subsequent
Registration Default, the rate of Liquidated Damages for such subsequent
Registration Default shall initially be 0.25% regardless of the rate in effect
with respect to any prior Registration Default at the time of cure of such prior
Registration Default.
Notwithstanding the foregoing, (1) the amount of Liquidated Damages
payable shall not increase because more than one Registration Default has
occurred and is pending and (2) a Holder of Notes or Exchange Notes who is not
entitled to the benefits of the Shelf Registration Statement (I.E., such Holder
has not elected to include information) shall not be entitled to Liquidated
Damages with respect to a Registration Default that pertains to the Shelf
Registration Statement.
(b) So long as Notes remain outstanding, the Issuer shall notify
the Trustee within five Business Days after each and every date on which an
event occurs in respect of which Liquidated Damages is required to be paid. Any
amounts of Liquidated Damages due pursuant to clauses (a)(i), (a)(ii), (a)(iii)
or (a)(iv) of this Section 4 will be payable in cash semi-annually on each June
1 and December 1 (each a "DAMAGES PAYMENT DATE"), commencing with the first such
date occurring after any such Liquidated Damages commence to accrue, to Holders
to whom regular interest is payable on such Damages Payment Date with respect to
Notes that are Registrable Notes. The amount of Liquidated Damages for
Registrable Notes will be determined by multiplying the applicable rate of
Liquidated Damages by the aggregate principal amount of all such Registrable
Notes outstanding on the
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Damages Payment Date following such Registration Default in the case of the
first such payment of Liquidated Damages with respect to a Registration
Default (and thereafter at the next succeeding Damages Payment Date until the
cure of such Registration Default), multiplied by a fraction, the numerator
of which is the number of days such Liquidated Damages rate was applicable
during such period (determined on the basis of a 360-day year comprised of
twelve 30-day months and, in the case of a partial month, the actual number
of days elapsed), and the denominator of which is 360.
Section 5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuer shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuer hereunder, the Issuer shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3 hereof,
and use its reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
PROVIDED, HOWEVER, that if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Issuer shall furnish to and afford the Holders of
the Registrable Notes covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, its counsel and the
managing underwriters, if any, a reasonable opportunity to review copies
of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed (in each case at least five Business Days prior to such filing). The
Issuer shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto if the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement, or any such Participating Broker-Dealer, as the
case may be, its counsel, or the managing underwriters, if any, shall
reasonably object on a timely basis.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be; cause
the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; and comply with the provisions of the Securities Act and
the Exchange Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale of
any securities being sold by a Participating Broker-Dealer covered by any
such Prospectus, in each case, in accordance with the in-
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tended methods of distribution set forth in such Registration Statement or
Prospectus, as so amended.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto from
whom the Issuer has received written notice that such Broker-Dealer will
be a Participating Broker-Dealer in the applicable Exchange Offer, notify
the selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, as promptly as possible, and, if requested by any
such Person, confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective amendment,
when the same has become effective under the Securities Act (including in
such notice a written statement that any Holder may, upon request, obtain,
at the sole expense of the Issuer, one conformed copy of such Registration
Statement or post-effective amendment including financial statements and
schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus
or the initiation of any proceedings for that purpose, (iii) if at any
time when a Prospectus is required by the Securities Act to be delivered
in connection with sales of the Registrable Notes or resales of Exchange
Notes by Participating Broker-Dealers the representations and warranties
of the Issuer contained in any agreement (including any underwriting
agreement) contemplated by Section 5(m)(i) hereof cease to be true and
correct in all material respects, (iv) of the receipt by the Issuer of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known to the Issuer that makes any statement
made in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus,
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 Issuer's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use its reasonable best
efforts
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to prevent the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of
a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange Notes, as
the case may be, for sale in any jurisdiction, and, if any such order is
issued, to use its reasonable best efforts to obtain the withdrawal of any
such order at the earliest practicable moment.
(e) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period and if requested by the
managing underwriter or underwriters (if any), the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement or any Participating Broker-Dealer, as the case may
be, (i) promptly incorporate in such Registration Statement or Prospectus
a prospectus supplement or post-effective amendment such information as
the managing underwriter or underwriters (if any), such Holders or any
Participating Broker-Dealer, as the case may be (based upon advice of
counsel), determine is reasonably necessary to be included therein and
(ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Issuer has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; PROVIDED, HOWEVER, that the Issuer
shall not be required to take any action hereunder that would, in the
written opinion of counsel to the Issuer, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, who so requests, its respective counsel and each managing
underwriter, if any, and a single counsel for such underwriters, at the
sole expense of the Issuer, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment
thereto, including financial statements and schedules, and, if requested,
all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, its respective counsel, and the underwriters, if any, and
a single counsel for such underwriters, at the sole expense of the Issuer,
as many copies of the Prospectus or Prospectuses (including each form of
preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Issuer
hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable
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Notes or each such Participating Broker-Dealer, as the case may be, and
the underwriters or agents, if any, and dealers (if any), in connection
with the offering and sale of the Registrable Notes covered by, or the
sale by Participating Broker-Dealers of the Exchange Notes pursuant to,
such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or Exchange
Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use its reasonable best
efforts to register or qualify, and to cooperate with the selling Holders
of Registrable Notes or each such Participating Broker-Dealer, as the case
may be, the managing underwriter or underwriters, if any, and its
respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Notes or Exchange Notes, as the case may be, for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States
as any selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters reasonably request; PROVIDED, HOWEVER, that
where Exchange Notes or Registrable Notes are offered other than through
an underwritten offering, the Issuer agrees to use its reasonable best
efforts to cause the Issuer's counsel to perform Blue Sky investigations
and file registrations and qualifications required to be filed pursuant to
this Section 5(h); 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 reasonably necessary or advisable to enable the disposition in
such jurisdictions of such Exchange Notes or Registrable Notes covered by
the applicable Registration Statement; PROVIDED, HOWEVER, that the Issuer
shall not be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that
would subject it to general service of process in any such jurisdiction
where it is not then so subject or (C) subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company and enable
such Registrable Notes to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or selling
Holders may request at least five Business Days prior to any sale of such
Registrable Notes or Exchange Notes.
(j) Use its reasonable best efforts to cause the Registrable Notes
or Exchange Notes covered by any Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be reasonably necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Notes or Exchange Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which case
the Issuer will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals.
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(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, upon the occurrence of
any event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) and the penultimate
paragraph of this Section 5) file with the Commission, at the sole expense
of the Issuer, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference,
or file any other required document so that, as thereafter delivered to
the purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(m) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Notes and take all such other actions as are reasonably
requested by the managing underwriter or underwriters in order to expedite
or facilitate the registration or the disposition of such Registrable
Notes and, in such connection, (i) make such representations and
warranties to, and covenants with, the underwriters with respect to the
business of the Issuer and its subsidiaries, as then conducted (including
any acquired business, properties or entity, if applicable), and the
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings of
debt securities similar to the Notes, and confirm the same in writing if
and when requested; (ii) use its reasonable best efforts to obtain the
written opinions of counsel to the Issuer and written updates thereof in
form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
managing underwriter or underwriters; (iii) use its reasonable best
efforts to obtain "cold comfort" letters and updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Issuer (and, if necessary, any other independent certified public
accountants of any subsidiary of the Issuer or of any business acquired by
the Issuer for which financial statements and financial data are, or are
required to be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, 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)
if an underwriting agreement is
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entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 hereof (or
such other provisions and procedures acceptable to Holders of a majority
in aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section; PROVIDED that the Issuer shall not be required to provide
indemnification to any underwriter selected in accordance with the
provisions of Section 9 hereof with respect to information relating to
such underwriter furnished in writing to the Issuer by or on behalf of
such underwriter expressly for inclusion in such Registration Statement.
The above shall be done at each closing under such underwriting agreement,
or as and to the extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold or
each such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and
any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "INSPECTORS"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Issuer and
its subsidiaries (collectively, the "RECORDS") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Issuer and its subsidiaries to supply all information reasonably requested
by any such Inspector in connection with such Registration Statement and
Prospectus. Each Inspector shall agree in writing that it will keep the
Records confidential and that it will not disclose, or use in connection
with any market transactions in violation of any applicable securities
laws, any Records that the Issuer determines, in good faith, to be
confidential and that it notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such Registration Statement
or Prospectus, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is necessary or advisable in the opinion of
counsel for an Inspector in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, relating to, or involving
this Agreement or the Purchase Agreement, or any transactions contemplated
hereby or thereby or arising hereunder or thereunder, or (iv) the
information in such Records has been made generally available to the
public; PROVIDED, HOWEVER, that (i) each Inspector shall agree to use
reasonable best efforts to provide notice to the Issuer of the potential
disclosure of any information by such Inspector pursuant to clause (i),
(ii) or (iii) of this sentence to permit the Issuer to obtain a protective
order (or waive the provisions of this paragraph (n)) and (ii) each such
Inspector shall take such actions as are reasonably necessary to protect
the confidentiality of such information (if practicable) to the extent
such action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of the Holder or any Inspector.
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(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof to be qualified under the
TIA not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such indenture
and the Holders of the Registrable Notes or Exchange Notes, as applicable,
to effect such changes to such 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 such trustee to
execute, all documents as 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.
(p) Comply with all applicable rules and regulations of the
Commission and make generally available to the Issuer's securityholders
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) (i) commencing at the end of any fiscal quarter
in which Registrable Notes or Exchange Notes 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 Issuer after the effective date of a
Registration Statement, which statements shall cover said 12-month periods
consistent with the requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of the
Exchange Offer or a Private Exchange, use its reasonable best efforts to
obtain an opinion of counsel to the Issuer, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the
Private Exchange, as the case may be, that the Exchange Notes or Private
Exchange Notes, as the case may be, and the related indenture constitute
legal, valid and binding obligations of the Issuer, enforceable against
the Issuer in accordance with its respective terms, subject to customary
exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuer (or to such other Person as directed by the Issuer) in exchange for
the Exchange Notes or the Private Exchange Notes, as the case may be,
xxxx, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be; PROVIDED that in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
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(t) Use its reasonable best efforts to take all other steps
reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration
Statement contemplated hereby.
The Issuer may require each seller of Registrable Notes or Exchange
Notes as to which any registration is being effected to furnish to the Issuer
such information regarding such seller and the distribution of such Registrable
Notes or Exchange Notes as the Issuer may, from time to time, reasonably
request. The Issuer may exclude from such registration the Registrable Notes of
any seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request and in the event of such an
exclusion, the Issuer shall have no further obligation under this Agreement
(including, without limitation, the obligations under Section 4) with respect to
such seller or any subsequent Holder of such Registrable Notes. Each seller as
to which any Shelf Registration is being effected agrees to furnish promptly to
the Issuer all information required to be disclosed in order to make any
information previously furnished to the Issuer by such seller not materially
misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Issuer, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Issuer, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the applicable Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
that, upon actual receipt of any notice from the Issuer (x) of the happening of
any event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or
5(c)(v) hereof, or (y) that the Board of Directors of the Issuer (the "BOARD OF
DIRECTORS") has resolved that the Issuer has a BONA FIDE business purpose for
doing so, then the Issuer may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration, in all cases, for a period (a
"DELAY PERIOD") expiring upon the earlier to occur of (i) in the case of the
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing by the Issuer that the use
of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto or (ii) in the case of the immediately
preceding clause (y), the date which is the earlier of (A) the date on which
such business purpose ceases to interfere with the Issuer's obligations to file
or maintain the effectiveness of any such Registration Statement pursuant to
this Agreement or (B) 60 days after the Issuer notifies the Holders of such good
faith determination. There shall not be more than 60 days of Delay Periods
during any 12-month period. Each of the Effectiveness Period and the Applicable
Period, if applicable, shall be extended by the
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number of days during any Delay Period. Any Delay Period will not alter the
obligations of the Issuer to pay Liquidated Damages under the circumstances
set forth in Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of such Notes or Exchange Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be.
Section 6. REGISTRATION EXPENSES
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuer shall be borne by the Issuer, whether or not
the Exchange Offer Registration Statement or the Shelf Registration is filed or
becomes effective or the Exchange Offer is consummated, including, without
limitation, (i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of an Exchange Offer, or (y) as provided in Section 5(h) hereof, in the
case of a Shelf Registration or in the case of Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or in respect of Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, as the
case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuer and reasonable fees and disbursements of
one special counsel for all of the sellers of Registrable Notes (exclusive of
any counsel retained pursuant to Section 7 hereof), (v) fees and disbursements
of all independent certified public accountants referred to in Section 5(m)(iii)
hereof (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Issuer desires such insurance, (vii)
fees and expenses of all other Persons retained by the Issuer, (viii) internal
expenses of the Issuer (including, without limitation, all salaries and expenses
of officers and employees of the Issuer performing legal or accounting duties),
(ix) the expense of any annual audit, (x) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, and the obtaining of a rating of the securities, in each case, if
applicable, and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, indentures
and any other documents necessary in order to comply with this Agreement.
Notwithstanding the foregoing or anything to the contrary, each Holder
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shall pay all underwriting discounts and commissions of any underwriters with
respect to any Registrable Notes sold by or on behalf of it.
Section 7. INDEMNIFICATION
(a) The Issuer agrees to indemnify and hold harmless each Holder
of Registrable Notes and each Participating Broker-Dealer selling Exchange Notes
during the Applicable Period, each Person, if any, who controls any such Person
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, the agents, employees, officers and directors of each Holder and
each such Participating Broker-Dealer and the agents, employees, officers and
directors of any such controlling Person (each, a "PARTICIPANT") from and
against any and all losses, liabilities, claims, damages and expenses whatsoever
(including, but not limited to, reasonable attorneys' fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all reasonable amounts paid in settlement of any claim or litigation)
(collectively, "LOSSES") to which they or any of them may become subject under
the Securities Act, the Exchange Act or otherwise insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Issuer shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by, 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, in the case of the
Prospectus, in the light of the circumstances under which they were made, not
misleading, PROVIDED, HOWEVER, that the foregoing indemnity shall not be
available to any Participant insofar as such Losses arise out of or are based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission relating to such Participant made therein in reliance upon and
in conformity with written information furnished to the Issuer in writing by or
on behalf of such Participant expressly for use therein, and (ii) that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Participant from whom the Person asserting such Losses
purchased Registrable Notes if (x) it is established in the related proceeding
that such Participant failed to send or give a copy of the Prospectus (as
amended or supplemented if such amendment or supplement was furnished to such
Participant prior to the written confirmation of such sale) to such Person with
or prior to the written confirmation of such sale, if required by applicable
law, and (y) the untrue statement or omission or alleged untrue statement or
omission was completely corrected in the Prospectus (as amended or supplemented
if amended or supplemented as aforesaid) and such Prospectus does not contain
any other untrue statement or omission or alleged untrue statement or omission
that was the subject matter of the related proceeding. This indemnity agreement
will be in addition to any liability that the Issuer may otherwise have,
including, but not limited to, liability under this Agreement. Any amount
advanced by the Issuer to an indemnified party pursuant to this Section 7 as a
result of such Losses shall be returned to the Issuer if it shall be finally
judicially determined that such indemnified party was not entitled to
indemnification (including such advances) by the Issuer.
(b) Each Participant agrees to indemnify and hold harmless the
Issuer, each Person, if any, who controls the Issuer within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, and each
of its agents, employees, officers and directors and the agents, employ-
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ees, officers and directors of any such controlling Person from and against
any Losses to which they or any of them may become subject under the
Securities Act, the Exchange Act or otherwise insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) or Prospectus (as amended
or supplemented if the Issuer shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by, 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, in the case of the Prospectus, in the light of the circumstances
under which they were made, not misleading, in each case to the extent, but
only to the extent, that any such Loss arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information relating to such
Participant furnished in writing to the Issuer by or on behalf of such
Participant expressly for use therein. Any amount advanced by a Participant
to an indemnified party pursuant to this Section 7 as a result of such Losses
shall be returned to such Participant if it shall be finally judicially
determined that such indemnified party was not entitled to indemnification
(including such advances) by such Participant.
(c) Promptly after receipt by an indemnified party under
subsection 7(a) or 7(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "ACTION"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, that there may be
defenses available to it or them that are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such reasonable fees and expenses of counsel shall be borne by the indemnifying
parties. In no event shall the indemnifying party be liable for the fees and
expenses of more than one counsel (together with appropriate local counsel) at
any time for all indemnified parties in connection with any one action or
separate but substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any
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claim or action effected without its written consent, which consent may not
be unreasonably withheld. 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 paragraph (a) or (b) of this Section 7, then 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 business days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 45 days prior notice of its intention to settle. 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 on claims that are the subject matter of
such proceeding.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in this Section 7 is for any reason
held to be unavailable from the indemnifying party, or is insufficient to
hold harmless a party indemnified under this Section 7, each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such aggregate Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by each indemnifying
party, on the one hand, and each indemnified party, on the other hand, from
the sale of the Notes to the Initial Purchasers or the resale of the
Registrable Notes by such Holder, as applicable, or (ii) if such allocation
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 each indemnified party, on the one hand, and each
indemnifying party, on the other hand, in connection with the statements or
omissions that resulted in such Losses, as well as any other relevant
equitable considerations. The relative benefits received by the Issuer, on
the one hand, and each Participant, on the other hand, shall be deemed to be
in the same proportion as (x) the total proceeds from the sale of the Notes
to the Initial Purchasers (net of discounts and commissions but before
deducting expenses) received by the Issuer are to (y) the total discount
received by such Participant in connection with the sale of the Registrable
Notes. The relative fault of the parties 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 Issuer or such Participant and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission or alleged statement or
omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the total discount received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) 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 misrepresen-
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tation. For purposes of this Section 7 each Person, if any, who controls any
Participant within the meaning of Section 15 of the Act or Section 20(a) of
the Exchange Act and each director, officer, employee and agent of such
Participant shall have the same rights to contribution as such Participant,
and each Person, if any, who controls the Issuer within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and each director,
officer, employee and agent of the Issuer shall have the same rights to
contribution as the Issuer. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action against such party in
respect of which a claim for contribution may be made against another party
or parties under this Section 7, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any obligation it or they may have under this Section 7 or
otherwise, except to the extent that it has been prejudiced in any material
respect by such failure; PROVIDED, HOWEVER, that no additional notice shall
be required with respect to any action for which notice has been given under
this Section 7 for purposes of indemnification. Anything in this section to
the contrary notwithstanding, no party shall be liable for contribution with
respect to any action or claim settled without its written consent, PROVIDED,
HOWEVER, that such written consent was not unreasonably withheld.
Section 8. RULES 144 AND 144A
The Issuer covenants that it will file the reports required, if any,
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the Commission thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Issuer is not required to file such reports, it will, upon
the request of any Holder or beneficial owner of Registrable Notes, make
available such information necessary to permit sales pursuant to Rule 144A under
the Securities Act. The Issuer further covenants that for so long as any
Registrable Notes remain outstanding it will take such further action as any
Holder of Registrable Notes may reasonably request from time to time to enable
such Holder to sell Registrable Notes without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144(k) and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the Commission.
Section 9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Notes covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Issuer.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
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Section 10. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Issuer has not, as of the date
hereof, and shall not have, after the date of this Agreement, entered into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuer's other
issued and outstanding securities under any such agreements. The Issuer has not
entered and will not enter into any agreement with respect to any of its
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE NOTES. The Issuer shall not,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given except pursuant to a written
agreement duly signed and delivered by (I) the Issuer and (II)(A) the Holders of
not less than a majority in aggregate principal amount of the then outstanding
Registrable Notes and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; PROVIDED, HOWEVER, that Section 7 and this Section
10(c) may not be amended, modified or supplemented except pursuant to a written
agreement duly signed and delivered by the Issuer and each Holder and each
Participating Broker-Dealer (including any Person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement) affected by any such
amendment, modification, supplement or waiver. 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 Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) NOTICES. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, next-day
air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
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(ii) if to the Issuer, at the address as follows:
ALARIS Medical Systems, Inc.
00000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
With a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxx Xxxxx Xxxxx, Esq.
(iii) if to the Initial Purchasers, at the address as follows:
UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Syndicate Department
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, 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 and in the manner specified in such Indenture.
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(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; PROVIDED, HOWEVER,
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign holds Registrable Notes. Each Holder agrees to be bound and comply with
the terms and provisions of this Agreement by its acceptance of the Registrable
Notes.
(f) 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.
(g) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) 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 WHOLLY WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
(i) SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It 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 that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) SECURITIES HELD BY THE ISSUER OR ITS AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuer or any of its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) THIRD-PARTY BENEFICIARIES. Holders and beneficial owners of
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(l) ATTORNEYS' FEES. As between the parties to this Agreement, 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 successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its costs and expenses and any other available remedy.
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(m) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuer on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
ALARIS MEDICAL SYSTEMS, INC.
By: /s/ XXXXXX X. XXXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: VP and General Counsel
UBS WARBURG LLC
BEAR, XXXXXXX & CO. INC.
By: UBS WARBURG LLC
By: /s/ XXXXXXX XXXXXXXXX
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
By: /s/ XXXXXXX XXXXX
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
