EXHIBIT 4.5
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
DATED SEPTEMBER 19, 2003
BETWEEN
INVISION TECHNOLOGIES, INC.
AND
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and
entered into this 19th day of September, 2003, between InVision Technologies,
Inc., a Delaware corporation (the "COMPANY"), and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated (the "INITIAL PURCHASER").
This Agreement is made pursuant to that certain Purchase Agreement,
dated September 16, 2003, between the Company and the Initial Purchaser (the
"PURCHASE AGREEMENT"), which provides for the sale by the Company to the Initial
Purchaser of $100,000,000 aggregate principal amount of the Company's 3%
Convertible Senior Notes due 2023 (the "NOTES"), plus an additional $25,000,000
aggregate principal amount of Notes as to which the Initial Purchaser may
exercise its option set forth in Section 2(b) of the Purchase Agreement. In
order to induce the Initial Purchaser to enter into the Purchase Agreement and
in satisfaction of a condition to the Initial Purchaser's obligations
thereunder, the Company has agreed to provide the registration rights provided
for in this Agreement, pursuant to Section 5 of the Purchase Agreement. In
consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"CLOSING DATE" shall mean the Closing Time as defined in the Purchase
Agreement.
"COMMON STOCK" shall mean common stock of the Company and any other
shares of common stock as may constitute "Common Stock" for purposes of the
Indenture, including the Underlying Common Stock (as defined in the Indenture).
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors.
"DEPOSITARY" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that any such depositary
must have an address in The Borough of Manhattan, The City of New York.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
2.1(a) hereof.
"EFFECTIVENESS TARGET DATE" shall mean the one hundred eightieth
(180th) day after the Closing Date.
"EVENT DATE" shall have the meaning set forth in Section 2.4 hereof.
"FILING DATE" shall mean the ninetieth (90th) day after the Closing
Date.
"HOLDER" shall mean the Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture.
"INDENTURE" shall mean the Indenture relating to the Securities, dated
as of September 19, 2003, between the Company and U.S. Bank National
Association, as trustee, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms thereof.
"INITIAL PURCHASER" shall have the meaning set forth in the preamble to
this Agreement.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section 2.4
hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Securities outstanding; provided, that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or any of its affiliates (as such term is defined in Rule 405 under the
0000 Xxx) shall be disregarded in determining whether such consent or approval
was given by the Holders of such required percentage.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NOTES" shall have the meaning set forth in the preamble to this
Agreement.
"OFFERING MEMORANDUM" means that certain final Offering Memorandum of
the Company, dated September 16, 2003, relating to the sale of the Securities.
"PERSON" shall mean an individual, partnership, corporation, limited
liability company, joint venture, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and in each case including all
material incorporated or deemed to be incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
to this Agreement.
"QUESTIONNAIRE" shall have the meaning set forth in Section 2.1(d)
hereof.
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"REGISTRABLE SECURITIES" shall mean the Notes and the shares of Common
Stock into which the Notes are convertible, upon original issuance thereof, and
at all times subsequent thereto; provided, however, that any Securities shall
cease to be Registrable Securities when (i) a Registration Statement with
respect to such Securities shall have been declared effective under the 1933 Act
and such Securities shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities shall have been sold to the public pursuant to
Rule 144 (or any similar provision then in force, but not Rule 144A) under the
1933 Act, (iii) expiration of the holding period that would be applicable to
such Securities under Rule 144(k) under the 1933 Act were they not held by an
affiliate of the Company or (iv) such Securities shall have ceased to be
outstanding.
"REGISTRATION DEFAULT" shall have the meaning set forth in Section 2.4
hereof.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or NASD registration and filing
fees, including, if applicable, the fees and expenses of any "qualified
independent underwriters" (and its counsel) that is required to be retained by
any holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection with
compliance with state or other securities or blue sky laws and compliance with
the rules of the NASD (including reasonable fees and disbursements of counsel
for any underwriters or Holders in connection with qualification of any
Registrable Securities under state or other securities or blue sky laws and any
filing with and review by the NASD), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements, certificates
representing the Securities and other documents relating to the performance of
and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on any
securities exchange or exchanges or on any quotation system, (v) all rating
agency fees, (vi) all fees and disbursements relating to the qualification of
the Indenture under applicable securities laws, (vii) the fees and disbursements
of counsel for the Company and the fees and expenses of independent public
accountants for the Company or for any other Person, business or assets whose
financial statements are included in any Registration Statement or Prospectus,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, (viii) the fees and expenses
of the Trustee, any registrar, any depositary, any paying agent, any escrow
agent, any transfer agent or any custodian, in each case including their
respective counsel, (ix) the reasonable fees and expenses of the Initial
Purchaser in connection with the Shelf Registration, including the reasonable
fees and expenses of one counsel to the Initial Purchaser and to the Holders of
Registrable Securities, and (x) any fees and disbursements of the underwriters
customarily paid by issuers or sellers of securities and the fees and expenses
of any special experts retained by the Company in connection with any
Registration Statement, but excluding underwriting discounts and commissions and
any transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company pursuant to the provisions of Section 2 of this Agreement that covers
all of the Registrable Securities held by
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Holders that have provided the information required pursuant to the terms of
Section 2.1(d) hereof on an appropriate form under Rule 415 under the 1933 Act,
or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated or deemed to be incorporated by reference therein.
"SEC" shall mean the United States Securities and Exchange Commission
or any successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"SECURITIES" shall mean the Notes and the shares of Common Stock into
which the Notes are convertible, upon original issuance thereof, and at all
times subsequent thereto.
"SHELF REGISTRATION" shall have the meaning set forth in Section 2.1(a)
hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"TRUSTEE" shall mean the trustee with respect to the Securities under
the Indenture.
"UNDERWRITERS" or "UNDERWRITERS" shall have the meaning set forth in
Section 4(a) hereof.
For purposes of this Agreement, (i) all references in this Agreement to
any Registration Statement or Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the SEC pursuant
to its Electronic Data Gathering, Analysis and Retrieval system; (ii) all
references in this Agreement to financial statements and schedules and other
information which is "contained", "included" or "stated" in any Registration
Statement or Prospectus (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is incorporated or deemed to be incorporated by reference in
such Registration Statement or Prospectus, as the case may be; and (iii) all
references in this Agreement to amendments or supplements to any Registration
Statement or Prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated or deemed to be incorporated
by reference in such Registration Statement or Prospectus, as the case may be.
2. Registration Under the 1933 Act.
2.1 Shelf Registration.
(a) As promptly as practicable, but no later than the
Filing Date, the Company shall file with the SEC, a Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415 under the 1933
Act covering all of the Registrable Securities held by Holders that have
provided the information pursuant to the terms of Section 2.1(d) hereof (the
"SHELF REGISTRATION"). The Shelf Registration shall be on Form S-3 under the
1933 Act or another appropriate form permitting registration of such Registrable
Securities for resale by the Holders in
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the manner or manners reasonably designated by them (including, without
limitation, one or more underwritten offerings). The Company shall use its
reasonable best efforts to cause the Registration Statement to be declared
effective by the SEC as promptly as practicable, but no later than the
Effectiveness Target Date, and to keep the Registration Statement continuously
effective, supplemented and amended, as required in order to permit the
Prospectus forming a part thereof to be useable by the Holders until the
earliest of (i) two years after the last date of issuance of the Notes, (ii) the
date when the Holders are able to sell all of their Securities immediately
without restriction pursuant to the volume limitation provisions of Rule 144
under the 1933 Act or otherwise, or (iii) all of the Registrable Securities
covered by the Registration Statement have been sold pursuant to the
Registration Statement (the "EFFECTIVENESS PERIOD").
(b) Notwithstanding any other provisions hereof, the
Company shall use its reasonable best efforts to ensure that (i) any
Registration Statement and any amendment thereto and any Prospectus forming a
part thereof and any supplements thereto complies in all material respects with
the 1933 Act, (ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any Prospectus forming a
part of any Registration Statement and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) The Company shall not permit any securities other
than Registrable Securities to be included in the Registration Statement. The
Company further agrees, if necessary, to supplement or amend the Registration
Statement, as required by Section 3(b) below.
(d) Notwithstanding any other provision hereof, no
Holder of Registrable Securities may include any of its Registrable Securities
in the Registration Statement pursuant to this Agreement unless the Holder
furnishes to the Company a completed questionnaire in the form attached as Annex
A to the Offering Memorandum (the "QUESTIONNAIRE") and such other information in
writing as the Company may reasonably request in writing for use in connection
with the Registration Statement or Prospectus included therein and in any
application to be filed with or under state securities laws. Before the
effectiveness of the Registration Statement and no later than the 20th business
day after receipt of the notice by a Holder from the Company of the filing of
the Registration Statement (which notice shall include the Questionnaire and any
other reasonable information requested by the Company for use in connection with
the Registration Statement), each such Holder of Registrable Securities must
furnish the completed Questionnaire and such other information, if any, to the
Company in writing and the Company will include the information from the
completed Questionnaire and such other information, if any, in the Registration
Statement in a manner so that upon effectiveness the Holders will be permitted
to deliver the Prospectus to purchasers of the Holder's Securities. From and
after the date that the Registration Statement is first declared effective, upon
receipt of a completed Questionnaire and such other information, if any, the
Company will, as promptly as practicable but in any event within 5 business days
of receipt, file any amendments or supplements to the Registration Statement
necessary for the relevant Holders to be
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named as selling securityholders in the Prospectus contained therein to be
permitted to deliver the Prospectus to purchasers of the Holder's Securities
(subject to the Company's right to suspend the Registration Statement as
described in Sections 3(e)(iii), 3(e)(v) and 3(e)(vi) below). Holders that do
not deliver a completed written Questionnaire and such other information, if
any, in a timely manner, as provided for in this Section 2.1(d), will not be
named as selling securityholders in the Prospectus. Each Holder as to which the
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make information
previously furnished to the Company by the Holder not materially misleading.
2.2 Expenses. The Company shall pay all Registration Expenses
in connection with the Shelf Registration and any Registration Statement. Each
Holder shall pay all fees and disbursements of its counsel (other than as set
forth in the preceding sentence or in the definition of Registration Expenses)
and all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Registration Statement.
2.3 Effectiveness.
The Registration Statement shall not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of Registrable
Securities pursuant to the Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement shall be deemed not to
have been effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
2.4 Liquidated Damages. The Company and the Initial Purchaser
agree that the Holders of Registrable Securities will suffer damages if the
Company fails to fulfill its obligations under Section 2.1 hereof and that it
would not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company agrees to pay liquidated damages on the Registrable
Securities ("LIQUIDATED DAMAGES") under the circumstances and to the extent as
set forth below. In the event that (a) the Registration Statement has not been
filed with the SEC on or prior to the Filing Date, (b) the Registration
Statement is not declared effective by the SEC on or prior to the Effectiveness
Target Date, (c) the Registration Statement has been declared effective by the
SEC and such Registration Statement ceases to be effective or usable at any time
during the Effectiveness Period for any reason without being succeeded within
five business days by a post-effective amendment to such Registration Statement
or a report filed with the SEC pursuant to the 1934 Act that cures such failure
or (d) the Company suspends the use of any Prospectus related to the
Registration Statement for a period exceeding forty-five (45) days in any
consecutive three-month period or exceeding an aggregate of ninety (90) days in
any consecutive twelve-month period (each such event referred to in clauses (a)
through (d) above, a "REGISTRATION DEFAULT"), then the interest rate borne by
the Notes shall be increased as Liquidated Damages (x) by one-quarter of one
percent (0.25%) per annum upon the occurrence of such Registration Default up to
and including the ninetieth (90th) day following such Registration Default and
(y) by one half of one percent (0.50%)
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from and after the ninety-first (91st) day following the occurrence of such
Registration Default, provided that the aggregate increase in such interest rate
will in no event exceed one half of one percent (0.50%) per annum. Upon the cure
of such Registration Default, the accrual of Liquidated Damages will cease and
the interest rate will revert to the original rate so long as no other
Registration Default shall have occurred and shall be continuing at such time;
provided, however, that, if after any such reduction in interest rate, one or
more Registration Defaults shall again occur, the interest rate shall again be
increased pursuant to the foregoing provisions. A Registration Default under
clause (a) above shall be cured on the date that the Shelf Registration is filed
with the SEC; a Registration Default under clause (b) above shall be cured on
the date that the Shelf Registration is declared effective by the SEC; a
Registration Default under clause (c) above shall be cured on the date the Shelf
Registration is declared effective or useable; and a Registration Default under
clause (d) above shall be cured on the date the Prospectus is declared useable
by the Company. In the event of a Registration Default, the Company shall pay
Liquidated Damages to (x) the holders of Notes and (y) the holders of Common
Stock issued upon conversion of Notes in proportion to the principal amount of
such Notes converted.
The Company shall notify the Trustee within three business
days after each and every date on which a Registration Default occurs (an "EVENT
DATE"). Liquidated Damages shall be paid by the Company to the Holders of Notes
by depositing with the Trustee, in trust, for the benefit of the Holders of
Notes, on or before the applicable semiannual interest payment date, immediately
available funds in sums sufficient to pay the Liquidated Damages then due. Such
Liquidated Damages due shall be payable on each interest payment date to the
record Holder of Securities entitled to receive the interest payment to be paid
on such date as set forth in the Indenture. Liquidated Damages in respect of
Common Stock issued upon conversion of Notes shall be payable by the Company to
the holders of Common Stock issued upon conversion of such Notes concurrently
with the payment of Liquidated Damages to the holders of Notes. Each obligation
to pay Liquidated Damages shall be deemed to accrue from and including the day
following the applicable Event Date.
3. Registration Procedures.
In connection with the obligations of the Company with respect
to the Shelf Registration and the Registration Statement pursuant to Section 2
hereof, the Company shall:
(a) prepare and file with the SEC a Registration
Statement within the period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company, (ii) shall
be available for the sale of the Registrable Securities by the selling Holders
thereof, and (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by reference all
financial statements required by the SEC to be filed therewith or incorporated
by reference therein, and use its reasonable best efforts to cause such
Registration Statement to become effective and remain effective in accordance
with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be necessary
under applicable law to keep such
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Registration Statement effective for the applicable period; cause each
Prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision then in
force) under the 1933 Act; and comply with the provisions of the 1933 Act and
the 1934 Act with respect to the disposition of all securities covered by a
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof;
(c) (i) notify each Holder of Registrable Securities,
as promptly as practicable, but in any event no less than five business days
prior to filing, that a Registration Statement with respect to the Registrable
Securities is being filed (which notice shall include the Questionnaire and any
other reasonable information requests referenced in Section 2.1(d)) and advising
such Holders that the distribution of Registrable Securities will be made in
accordance with the method elected by the Majority Holders subject to Section
2.1(a) above; (ii) furnish to each Holder of Registrable Securities, to counsel
for the Holders, to counsel for the Initial Purchaser and to each underwriter of
an underwritten offering of Registrable Securities, if any, without charge, as
many copies of the Prospectus included therein, including each preliminary
Prospectus (in the event of an underwritten offering), and any amendment or
supplement thereto in order to facilitate the public sale or other disposition
of the Registrable Securities; and (iii) subject to any notice by the Company in
accordance with Section 3(h) of the existence of any fact of the kind described
in Sections 3(e)(iii), 3(e)(v) and 3(e)(vi) hereof, the Company hereby consents
to the use of the Prospectus, including each preliminary Prospectus (in the
event of an underwritten offering), that is contained in a Registration
Statement declared effective by the SEC, or any amendment or supplement thereto
by each of the Holders and underwriters of Registrable Securities in connection
with the offering and sale of the Registrable Securities covered by any
Prospectus that is contained in a Registration Statement declared effective by
the SEC or any amendment or supplement thereto;
(d) use its reasonable best efforts to register or
qualify (or establish an exemption from such registration or qualification for)
the Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request, to cooperate with the Holders
and the underwriters of any Registrable Securities in connection with any
filings required to be made with the NASD, to keep each such registration or
qualification effective during the period such Registration Statement is
required to be effective, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company shall not
be required to (i) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d) or (ii) take any action which would subject it to general
service of process or taxation in any such jurisdiction if it is not then so
subject;
(e) notify each Holder of Registrable Securities as
promptly as reasonably practicable and, if requested by such Holder, confirm
such advice in writing as promptly as reasonably practicable (i) when a
Registration Statement has become effective and when any post-
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effective amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for post- effective
amendments or supplements to a Registration Statement or Prospectus or for
additional information after a Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to such offering cease to be true and correct in all
material respects, (v) of the happening of any event or the discovery of any
facts during the period a Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus untrue
in any material respect or which constitutes an omission to state a material
fact in such Registration Statement or Prospectus or which requires the making
of any changes in such Registration Statement or Prospectus in order to make the
statements therein not misleading, (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vii) of any reasonable
determination by the Company that a post-effective amendment to a Registration
Statement would be appropriate;
(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a Registration Statement
as soon as practicable and provide notice as promptly as reasonably practicable
to each Holder of the withdrawal of any such order;
(g) 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 cause such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in such names
as the selling Holders or the underwriters, if any, may reasonably request in
writing at least three business days prior to the closing of any sale of
Registrable Securities;
(h) upon the occurrence of any event or the discovery
of any facts, each as contemplated by Sections 3(e)(iii), 3(e)(v) and 3(e)(vi)
hereof, as promptly as practicable after the occurrence of such an event, use
its reasonable best efforts to prepare a supplement or post-effective amendment
to a Registration Statement or 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 Securities, such Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Company agrees to
notify each Holder to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission. At such time as such public
disclosure is otherwise made or the Company determines that such disclosure is
not necessary, in each case to correct any misstatement of a material fact or to
include any omitted material fact, the Company
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agrees promptly to notify each Holder of such determination and to furnish each
Holder such number of copies of the Prospectus, as amended or supplemented, as
such Holder may reasonably request;
(i) a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or a Prospectus after the
initial filing of a Registration Statement, provide copies of such document to
the Initial Purchaser on behalf of such Holders if requested by the Initial
Purchaser; and make representatives of the Company as shall be reasonably
requested by the Holders of Registrable Securities, or the Initial Purchaser on
behalf of such Holders, available for discussion of such document;
(j) obtain CUSIP numbers for all Registrable
Securities not later than the effective date of a Registration Statement, and
provide the Trustee with printed certificates for the Registrable Securities in
a form eligible for deposit with the Depositary;
(k) cause the Indenture to be qualified under the TIA
in connection with the registration of the Registrable Securities, (ii)
cooperate with the Trustee and the Holders to effect such changes, if any, to
the Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute, and use its reasonable
best efforts to cause the Trustee to execute, all documents as may be required
to effect such changes, if any, and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so qualified in a timely
manner;
(l) subject to Section 2.1(a), enter into agreements
(including underwriting agreements) and take all other customary and appropriate
actions 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 whether or not the registration is an underwritten
registration:
(i) make such representations and
warranties to the Holders of such Registrable Securities and the underwriters,
if any, in form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be reasonably requested by
such Holders and underwriters;
(ii) in connection with any underwritten
offering hereunder, seek to obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters, if any, and the Holders
of a majority in principal amount of the Registrable Securities being sold)
addressed to each selling Holder (where reasonably possible) and the
underwriters, if any, covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings and such other
matters as may be reasonably requested by such Holders and underwriters;
(iii) in connection with any underwritten
offering hereunder, seek to obtain "comfort letters" and updates thereof with
respect to such Registration Statement and the Prospectus included therein, all
amendments and supplements thereto and all documents
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incorporated or deemed to be incorporated by reference therein from the
Company's independent certified public accountants and (where reasonably
practicable) from the independent certified public accountants for any other
Person or any business or assets whose financial statements are, or are required
to be, included or incorporated by reference in the Registration Statement or
Prospectus, each addressed to the underwriters, if any, and (where reasonably
practicable) to have such letter addressed to the selling Holders of Registrable
Securities, such letters to be in customary form and covering matters of the
type customarily covered in "comfort letters" to underwriters in connection with
similar underwritten offerings;
(iv) if an underwriting agreement is
entered into, cause the same to set forth indemnification and contribution
provisions and procedures substantially equivalent to the indemnification and
contribution provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be indemnified pursuant to
Section 4 hereof or, at the request of any underwriters, in the form customarily
provided to such underwriters in similar types of transactions; and
(v) deliver such other documents and
certificates as may be reasonably requested and as are customarily delivered in
similar offerings to the Holders of a majority in principal amount of the
Registrable Securities being sold and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and, if appropriate, each post-effective amendment thereto) and (ii) each
closing under any underwriting or similar agreement as and to the extent
required thereunder;
(m) if reasonably requested in writing in connection
with a disposition of Registrable Securities pursuant to a Registration
Statement, make reasonably available for inspection during normal business hours
by representatives of the Holders of the Registrable Securities and any
underwriters participating in any disposition pursuant to a Registration
Statement and any counsel or accountant retained by such Holders or
underwriters, all relevant financial and other records, documents and properties
of the Company reasonably requested by any such Persons, and cause the
appropriate officers, directors, employees, and any other agents of the Company
to make all information reasonably requested by any such representative,
underwriter, special counsel or accountant in connection with a Registration
Statement reasonably available for inspection during normal business hours, and
make such representatives of the Company reasonably available for discussion
during normal business hours of such documents as shall be reasonably requested
by the Initial Purchaser; provided, however, that such persons shall first agree
in writing with the Company that any information that is reasonably designated
by the Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons and shall be used solely
for the purposes of exercising rights under this Agreement, unless (i)
disclosure of such information is required by court or administrative order or
is necessary to respond to inquiries of regulatory authorities; provided,
however, that such persons shall as promptly as reasonably practicable, provide
written notice to the Company of any request by any such regulatory authority
for any such confidential information of the Company in order to allow the
Company a reasonable
-11-
amount of time to seek an appropriate protective order to prevent the disclosure
of such information, (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 or otherwise obligated to
keep such information confidential.
(n) a reasonable time prior to filing any
Registration Statement, any Prospectus forming a part thereof, any amendment to
such Registration Statement or amendment or supplement to such Prospectus (other
than supplements that do nothing more than name one or more Holders and provide
information with respect thereto), provide copies of such document upon request
to the Initial Purchaser, to the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any, and, to counsel for the Initial
Purchaser or underwriters, and make such changes in any such document prior to
the filing thereof as the Initial Purchaser or the underwriter or underwriters,
or any of their respective counsel may reasonably request in writing within five
business days after the delivery of such copies by the Company; cause the
representatives of the Company to be available for discussion of such documents
during normal business hours as shall be reasonably requested by the Initial
Purchaser on behalf of the Holders or any underwriter or any of their respective
counsel; and shall not at any time make any filing of any such document of which
the Initial Purchaser on behalf of the Holders, their counsel or any underwriter
or their counsel shall not have previously been advised and furnished a copy or
to which the Majority Holders, the Initial Purchaser on behalf of the Holders,
their counsel or any underwriter or their counsel shall reasonably object within
a reasonable time period;
(o) use its reasonable best efforts to cause all
Registrable Securities to be listed on any securities exchange or inter-dealer
quotation system such as NASDAQ on which similar debt or equity securities
issued by the Company are then listed, if any;
(p) use its commercially reasonable efforts to cause
the Registrable Securities to be rated with the appropriate rating agencies, if
reasonably requested by the Majority Holders or by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any,
unless the Registrable Securities are already so rated;
(q) otherwise comply with all applicable rules and
regulations of the SEC and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering at least twelve (12)
months which shall satisfy the provisions of Section 11(a) of the 1933 Act and
Rule 158 thereunder; and
(r) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence investigation
by any underwriter and its counsel (including any "qualified independent
underwriter" that is required to be retained in accordance with the rules and
regulations of the NASD);
-12-
The Company may (as a condition to such Holder's participation in the
Shelf Registration) require each Holder of Registrable Securities to furnish to
the Company such information regarding such Holder and the proposed distribution
by such Holder of such Registrable Securities as the Company may from time to
time reasonably request in writing. Each Holder further agrees promptly to
furnish to the Company in writing all information required to be disclosed in
order to make the information previously furnished to the Company by such Holder
not misleading, any other information regarding such Holder and the distribution
of such Registrable Securities as may be required to be disclosed in the
Registration Statement under applicable law or pursuant to SEC comments and any
information otherwise required by the Company to comply with applicable law or
regulations. Each Holder further agrees, following termination of the
Effectiveness Period, to notify the Company, within ten business days of a
request, of the amount of Registrable Securities sold pursuant to the
Registration Statement and, in the absence of a response, the Company may assume
that all of the Holder's Registrable Securities were so sold.
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event or the discovery of any facts, each of the kind
described in Sections 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until receipt by such Holder of (i) the copies of the
supplemented or amended Prospectus contemplated by Section 3(h) hereof or (ii)
written notice from the Company that the Shelf Registration is once again
effective or that no supplement or amendment is required. If so directed by the
Company, such Holder will deliver to the Company (at the Company's expense) all
copies in such Holder's possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. Nothing in this paragraph shall
prevent the accrual of Liquidated Damages on any Securities.
If any of the Registrable Securities covered by any Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
offering and shall be reasonably acceptable to the Company. No Holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements, (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements and (c) provides the Company with the information required in
Section 2.1(d) above.
4. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
the Initial Purchaser, each Holder, each Person who participates as an
underwriter (each, an "UNDERWRITER" or an "UNDERWRITER") and each Person, if
any, who controls the Initial Purchaser, Holder or Underwriter within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
-13-
(i) against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto) pursuant to
which Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or any omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or any omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to Section
4(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense
whatsoever, as incurred (including the reasonable fees and disbursements of
counsel chosen by any indemnified party), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of the Initial Purchaser, any Holder or Underwriter (or any person who
expressly controls the Initial Purchaser, Holder or Underwriter) expressly for
use in a Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto) provided further that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense if
the Holder fails to deliver at or prior to the written confirmation of sale, the
most recent Prospectus, as amended or supplemented, and such Prospectus, as
amended or supplemented, would have corrected such untrue statement or omission
or alleged untrue statement or omission of a material fact and the delivery
thereof was required by law.
(b) Each Holder, severally but not jointly, agrees to
indemnify and hold harmless the Company, the Initial Purchaser, each Underwriter
and the other selling Holders, and each of their respective directors and
officers, and each Person, if any, who controls the Company, the Initial
Purchaser, any Underwriter or any other selling Holder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 4(a) hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
-14-
Registration Statement (or any amendment thereto) or any Prospectus included
therein (or any amendment or supplement thereto) in reliance upon and in
conformity with written information with respect to such Holder furnished to the
Company by or on behalf of such Holder or any other person who controls such
Holder expressly for use in the Registration Statement (or any amendment
thereto) or such Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder shall be liable for any claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Registration Statement.
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure so to notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 4 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 4(a)(ii) effected without
its written consent if (i) such settlement is entered into more than forty-five
(45) days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at least thirty (30) days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this
Section 4 is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred
-15-
by such indemnified party, as incurred, in such proportion as is appropriate to
reflect the relative fault of the indemnifying party or parties on the one hand
and of the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or parties on the one
hand and the indemnified party or parties on the other hand shall be determined
by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by such indemnifying party or parties or
such indemnified party or parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(f) The Company, the Holders and the Initial
Purchaser agree that it would not be just or equitable if contribution pursuant
to this Section 4 were determined by pro rata allocation or by any other method
of allocation that does not take account of the equitable considerations
referred to in paragraph (e) above. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 4 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 4, the Initial Purchaser
or any Holder or Underwriter shall not be required to contribute any amount in
excess of the amount by which the total price at which Registrable Securities
sold by it pursuant to a Registration Statement were offered exceeds the amount
of any damages that the Initial Purchaser, Holder or Underwriter has otherwise
been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls the
Initial Purchaser, Holder or Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Initial Purchaser or such Holder or Underwriter, as the case
may be, and each director of the Company, each officer of the Company who signed
the Registration Statement and each Person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The respective
obligations of the Initial Purchaser, Holders, and Underwriters to contribute
pursuant to this Section 4 are several in proportion to the principal amount of
Securities sold by them pursuant to a Registration Statement and not joint.
The indemnity and contribution provisions contained in this Section 4
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation
-16-
made by or on behalf of the Initial Purchaser or any Holder or Underwriter or
any Person controlling the Initial Purchaser, or any Holder or Underwriter, or
by or on behalf of the Company, its officers, or directors or any Person
controlling the Company and (iii) any sale of Registrable Securities pursuant to
a Registration Statement.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long or the Company is
subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the
Company covenants that it will file the reports required to be filed by it under
the 1933 Act and Section 13(a) or 15(d) of the 1934 Act. If the Company ceases
to be subject to the reporting requirements of Section 13 or 15 of the 1934 Act,
it will upon the request of any Holder or beneficial owner of Registrable
Securities (a) make publicly available such information (including, without
limitation, the information specified in Rule 144A(d)(4) under the 0000 Xxx) as
is necessary to permit sales pursuant to Rule 144 under the 1933 Act, (b)
deliver or cause to be delivered, promptly following a request by any Holder or
beneficial owner of Registrable Securities or any prospective purchaser or
transferee designated by such Holder or beneficial owner, such information
(including, without limitation, the information specified in Rule 144A(d)(4)
under the 0000 Xxx) as is necessary to permit sales pursuant to Rule 144A under
the 1933 Act and it will take such further action as any Holder or beneficial
owner of Registrable Securities may reasonably request, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time or (iii) any similar rules or regulations hereafter
adopted by the SEC. Upon the request of any Holder or beneficial owner of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
5.2 No Inconsistent Agreements. The Company has not entered
into nor will the Company on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not for the
term of this Agreement and will not in any way conflict with and are not and
will not be inconsistent with the rights granted to the holders of any of the
Company's other issued and outstanding securities under any other agreements
entered into by the Company or any of its subsidiaries.
5.3 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 at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure. 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
-17-
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 pursuant to such Registration Statement; 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. Each
Holder of Registrable Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall be bound by any
such amendment, modification, supplement, waiver or consent effected pursuant to
this Section 5.3, whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
5.4 Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telecopier or any courier guaranteeing overnight delivery (a)
if to a Holder (other than the Initial Purchaser), at the most current address
set forth on the records of the registrar under the Indenture, (b) if to the
Initial Purchaser, at the most current address given by the Initial Purchaser to
the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchaser with a copy to Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxx, (c) if to the Company, initially
at the Company's address set forth in the Purchase Agreement with a copy to
Fenwick & West LLP, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, 00000,
Attention: Xxxxxx Xxxxxxxx, and thereafter at such other address of which notice
is given in accordance with the provisions of this Section 5.4, and (d) if to
any Underwriter, at the most current address given by such Underwriter to the
Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the applicable
underwriting agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged, if telecopied; and on the next business day if timely delivered to
an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
5.5 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, that (a) 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 acquires Registrable
Securities from a Holder and (b) nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in violation
of the terms hereof or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities, such Person
-18-
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement, and such
person shall be entitled to receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchaser (even if
the Initial Purchaser is not a Holder of Registrable Securities) shall be third
party beneficiaries of the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
5.7 Restrictions on Resales Until the expiration of two years
after the original issuance of the Securities, the Company will not, and will
cause its "affiliates" (as such terms is defined in Rule 144(a)(1) under the
0000 Xxx) not to, resell any Securities which are "restricted securities" (or
such term is defined under Rule 144(a)(3) under the 0000 Xxx) that have been
reacquired by any of them and shall immediately upon any purchase of any such
Securities submit such Securities to the Trustee for cancellation.
5.8 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.9 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
5.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
ITS PRINCIPLES OF CONFLICTS OF LAWS.
5.11 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.
-19-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INVISION TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------------
Xxxxxx Xxxxxxxx, Ph.D.
President and Chief Executive Officer
By: /s/ Xxxx Xxxxxxxxxx
-------------------------------------------------
Xxxx Xxxxxxxxxx
Senior Vice President and Chief Financial Officer
Confirmed and accepted as of the
date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx Xxxxxx
-----------------------------
Authorized Signatory
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