Exhibit 4.17
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 4, 2003
BETWEEN
XXXXXX SCIENTIFIC INTERNATIONAL INC.
AND
DEUTSCHE BANK SECURITIES INC.
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 4th day of November, 2003, among Xxxxxx Scientific
International Inc., a Delaware corporation (the "Company"), and Deutsche Bank
Securities Inc. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated
October 21, 2003, between the Company and the Initial Purchaser (the "Purchase
Agreement"), which provides for, among other things, the sale by the Company to
the Initial Purchaser of an aggregate of $150 million principal amount of the
Company's 8% Senior Subordinated Notes due 2013 (the "Securities"). In order to
induce the Initial Purchaser to enter into the Purchase Agreement, the Company
has agreed to provide to the Initial Purchaser and its direct and indirect
transferees the registration rights set forth in this Agreement. The execution
of this Agreement is a condition to the closing under 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.
"1934 Act" shall mean the Securities Exchange Act of l934, as amended
from time to time.
"Affiliated Market Maker" shall mean the Initial Purchaser who is
required to by applicable law to deliver a prospectus in connection with
sales or market making activities with respect to the Exchange Securities.
"Closing Date" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" see the preamble hereto and shall also include the Company's
successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in The City of
New York.
"Effectiveness Period" see Section 2.2(b).
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2.1
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits thereto
and all documents incorporated by reference therein.
"Exchange Period" see Section 2.1 hereof.
"Exchange Securities" shall mean the 8% Senior Subordinated Notes due
2013 to be issued by the Company under the Indenture containing terms
identical to the Securities in all material respects (except that (i)
interest thereon shall accrue from the last date on which interest was paid
on the Securities or, if no such interest has been paid, from the Closing
Date and (ii) the transfer restrictions thereon shall be eliminated), to be
offered to Holders of Securities in exchange for Registrable Securities
pursuant to the Exchange Offer.
"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 and each Participating Broker-Dealer that holds
Exchange Securities for so long as such Participating Broker-Dealer is
required to deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of August 20, 2003, between the Company and X. X. Xxxxxx Trust Company,
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" see the preamble hereto.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding (as defined in the Indenture)
Registrable Securities; 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 and other obligors on
the Securities or any Affiliate (as defined in the Indenture) of the
Company shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage amount.
"Participating Broker-Dealer" shall mean Deutsche Bank Securities Inc.
and any other broker-dealer that holds Registrable Securities acquired for
its own account as a result of market making activities in the Securities
and that will be the beneficial owner (as defined in Rule 13d-3 under the
0000 Xxx) of Exchange Securities to be received by such broker-dealer in
the Exchange Offer.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Private Exchange" see Section 2.1 hereof.
"Private Exchange Securities" see Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" see the preamble hereto.
"Registration Default" see Section 2.5.
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"Registrable Securities" shall mean the Securities and, if issued, the
Private Exchange Securities; provided, however, the Securities and, if
issued, the Private Exchange Securities shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such
Securities or Private Exchange Securities for the exchange or resale
thereof, as the case may be, shall have been declared effective under the
1933 Act and such Securities or Private Exchange Securities, as the case
may be, shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities or Private Exchange Securities, as the case
may be, have been sold to the public pursuant to Rule l44 (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii) such
Securities or Private Exchange Securities, as the case may be, shall have
ceased to be Outstanding (as defined in the Indenture) or (iv) with respect
to the Securities, the Exchange Offer is consummated (except in the case of
Securities purchased from the Company and continued to be held by the
Initial Purchaser and except with respect to any Securities as to which
clause (iv) of Section 2.2 is applicable).
"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 or National Association of Securities
Dealers, Inc. (the "NASD") registration and filing fees, including, if
applicable, the reasonable fees and expenses of any "qualified independent
underwriter" (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 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 blue sky
qualification of any of the Exchange Securities or Registrable Securities
and any filings with 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 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, (v) all rating agency fees, (vi)
the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company, including the expenses of
any special audits or "cold comfort" letters required by or incident to
such performance and compliance, (vii) the fees and expenses of the
Trustee, and any exchange agent or custodian, (viii) the reasonable fees
and expenses of the Initial Purchaser in connection with the Exchange
Offer, except for legal expenses which are separately provided for in
clause (ix) hereof, (ix) the reasonable fees, disbursements and expenses of
Xxxxxx Xxxxxx & Xxxxxxx LLP (or such other counsel in lieu thereof
reasonably satisfactory to the Majority Holders and the Company) as special
counsel to the Initial Purchaser in the Exchange Offer and as special
counsel representing the Holders of Registrable Securities and (x) any fees
and disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the reasonable fees and expenses of
any special experts retained by the Company in connection with any
Registration Statement, but excluding underwriting discounts and
commissions and 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 which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, 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.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
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"Securities" see the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof.
"Shelf Registration Event" see Section 2.2 hereof.
"Shelf Registration Event Date" see Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2.2 of this
Agreement which covers all of the Registrable Securities or all of the
Private Exchange Securities 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 by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from time
to time.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the 1933 Act.
2.1. Exchange Offer. To the extent not prohibited by any applicable
law or interpretation of the staff of the SEC, the Company shall, for the
benefit of the Holders, at the Company's cost, use its best efforts to (A)
prepare and, as soon as practicable but not later than 120 days following the
Closing Date, file with the SEC an Exchange Offer Registration Statement on an
appropriate form under the 1933 Act with respect to a proposed Exchange Offer
and the issuance and delivery to the Holders, in exchange for the Registrable
Securities, a like principal amount of Exchange Securities (other than Private
Exchange Securities), (B) cause the Exchange Offer Registration Statement to be
declared effective under the 1933 Act within 240 days of the Closing Date, (C)
keep the Exchange Offer Registration Statement effective until the closing of
the Exchange Offer and (D) cause the Exchange Offer to be consummated not later
than 270 days following the Closing Date. Upon the effectiveness of the Exchange
Offer Registration Statement, the Company shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each Holder
eligible and electing to exchange Registrable Securities for Exchange Securities
(assuming that such Holder (a) is not an affiliate of the Company within the
meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering
Registrable Securities acquired directly from the Company for its own account,
(c) acquired the Exchange Securities in the ordinary course of such Holder's
business and (d) has no arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing the Exchange
Securities) to transfer such Exchange Securities from and after their receipt
without any limitations or restrictions under the 1933 Act and under state
securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(a) mail as promptly as practicable to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period of not
less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange Offer;
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(d) permit Holders to withdraw tendered Registrable Securities at any
time prior to 5:00 p.m. (New York City Time), on the last business day of
the Exchange Period, by sending to the institution specified in the notice,
a telegram, telex, facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Registrable Securities delivered
for exchange, and a statement that such Holder is withdrawing his election
to have such Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered will
remain outstanding and continue to accrue interest, but will not retain any
rights under this Agreement (except in the case of the Initial Purchaser
and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
If the Initial Purchaser determines upon the advice of its outside
counsel that it is not eligible to participate in the Exchange Offer with
respect to the exchange of Securities constituting any portion of an unsold
allotment in the initial distribution, as soon as practicable upon receipt by
the Company of a written request from the Initial Purchaser, the Company shall,
simultaneously with the delivery of the Exchange Securities in the Exchange
Offer, issue and deliver to the Initial Purchaser in exchange (the "Private
Exchange") for the Securities held by the Initial Purchaser, a like principal
amount of debt securities of the Company on a senior subordinated basis, that
are identical (except that such securities shall bear appropriate transfer
restrictions) to the Exchange Securities (the "Private Exchange Securities").
The Exchange Securities and the Private Exchange Securities shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture and which, in either case, has been qualified under
the TIA, or is exempt from such qualification and shall provide that the
Exchange Securities shall not be subject to the transfer restrictions set forth
in the Indenture but that the Private Exchange Securities shall be subject to
such transfer restrictions. The Indenture or such indenture shall provide that
the Exchange Securities, the Private Exchange Securities and the Securities
shall vote and consent together on all matters as one class and that none of the
Exchange Securities, the Private Exchange Securities or the Securities will have
the right to vote or consent as a separate class on any matter. The Private
Exchange Securities shall be of the same series as and the Company will seek to
cause the CUSIP Service Bureau to issue the same CUSIP numbers for the Private
Exchange Securities as for the Exchange Securities issued pursuant to the
Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Registrable Securities duly tendered
and not validly withdrawn pursuant to the Exchange Offer or the
Private Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by
the Company; and
(iii) issue, and cause the Trustee promptly to authenticate and
deliver Exchange Securities or Private Exchange Securities, as the
case may be, to each Holder of Registrable Securities so accepted for
exchange in a principal amount equal to the principal amount of the
Registrable Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security will
accrue from the last date on which interest was paid on the Registrable
Securities surrendered in exchange therefor or, if no interest has been paid on
the Registrable Securities, from the date of original issuance. The Exchange
Offer and the Private Exchange shall not be subject to any conditions, other
than (i) that the Exchange Offer or the Private Exchange, or the making of any
exchange by a Holder, does not violate applicable
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law or any applicable interpretation of the staff of the SEC, (ii) the due
tendering of Registrable Securities in accordance with the Exchange Offer and
the Private Exchange, (iii) that each Holder of Registrable Securities exchanged
in the Exchange Offer shall have represented that it is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act or, if it is an
affiliate, that such holder will comply with the registration and prospectus
delivery requirements of the 1933 Act to the extent applicable, that all
Exchange Securities to be received by it shall be acquired in the ordinary
course of its business and that at the time of the consummation of the Exchange
Offer it shall have no arrangement or understanding with any person to
participate in the distribution (within the meaning of the 0000 Xxx) of the
Exchange Securities and shall have made such other representations as may be
customary or reasonably necessary under applicable SEC rules, regulations or
interpretations to render the use of Form S-4 or other appropriate form under
the 1933 Act available and (iv) that no action or proceeding shall have been
instituted or threatened in any court or by or before any governmental agency
with respect to the Exchange Offer or the Private Exchange which, in the
Company's judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer or the Private Exchange. The Company
shall inform the Initial Purchaser of the names and addresses of the Holders to
whom the Exchange Offer is made, and the Initial Purchaser shall have the right
to contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2.1, the provisions of this Agreement shall continue to apply, modified
as necessary, solely with respect to Registrable Securities that are Private
Exchange Securities, Registrable Securities of the type described in clause (iv)
of Section 2.2 and Exchange Securities held by Participating Broker-Dealers, and
the Company shall have no further obligation to register Registrable Securities
(other than Private Exchange Securities and Securities of the type described in
clause (iv) of Section 2.2) pursuant to Section 2.2 of this Agreement.
2.2. Shelf Registration. In the event that (i) because of any changes
in law, SEC rules or regulations or applicable interpretations thereof by the
staff of the SEC, the Company reasonably determines that it is not permitted to
effect the Exchange Offer as contemplated by Section 2.1 hereof, (ii) the
Exchange Offer Registration Statement is not declared effective within 240 days
following the original issue of the Registrable Securities or the Exchange Offer
is not consummated within 270 days after the original issue of the Registrable
Securities, (iii) upon the request of the Initial Purchaser with respect to any
Registrable Securities which it acquired directly from the Company and, with
respect to other Registrable Securities held by it, if the Initial Purchaser is
not permitted, in the opinion of counsel to the Initial Purchaser, pursuant to
applicable law or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities that are freely
tradeable without restriction under the 1933 Act and applicable blue sky or
state securities laws or (iv) if a Holder is not permitted by applicable law to
participate in the Exchange Offer based upon advice of counsel to the effect
that such Holder may not be legally able to participate in the Exchange Offer or
does not receive fully tradeable Exchange Securities pursuant to the Exchange
Offer (any of the events specified in (i)-(iv) being a "Shelf Registration
Event" and the date of occurrence thereof, the "Shelf Registration Event Date"),
then the Company shall, at its cost:
(a) Cause to be filed as promptly as practicable after the occurrence
of such Shelf Registration Event Date, and thereafter shall use its best
efforts to cause to be declared effective as promptly as practicable but no
later than 240 days after the original issue of the Registrable Securities
(or, in the case of a request by the Initial Purchaser, within 30 days of
such request, which shall be no earlier than 120 days after the Closing
Date), a Shelf Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance with
the methods of distribution elected by the Majority Holders participating
in the Shelf Registration and set forth in such Shelf Registration
Statement.
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(b) Use its best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years (or one year in
the case of a request solely by the Initial Purchaser) from the date the
Shelf Registration Statement is declared effective by the SEC, or for such
shorter period that will terminate when all Registrable Securities covered
by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding or otherwise to be
Registrable Securities (the "Effectiveness Period"); provided, however,
that the Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit dealers to
comply with the applicable prospectus delivery requirements of Rule 174
under the 1933 Act and as otherwise provided herein.
(c) Notwithstanding any other provisions hereof, use its best efforts
to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf 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 part of any Shelf Registration
Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), 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 light of the circumstances under which they were
made, not misleading.
The Company shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Company
further agrees, if necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(b) below, and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
2.3. Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all expenses of its counsel (other than to the extent a Registration
Expense), underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
2.4. Effectiveness. An Exchange Offer Registration Statement pursuant
to Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will 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 a Shelf
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 will be deemed not to have become effective during the
period of such interference, until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume.
2.5. Liquidated Damages. In the event that (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 120th
calendar day following the date of original issue of the Securities, (b) the
Exchange Offer Registration Statement has not been declared effective on or
prior to the 240th calendar day following the date of original issue of the
Securities or (c) the Exchange Offer is not consummated on or prior to the 270th
calendar day following the date of original issue of the Securities or a Shelf
Registration Statement is not declared effective on or prior to the 240th
calendar day following the date of original issue of the Securities (or, if a
Shelf Registration Statement is required to be filed because of the request of
the Initial Purchaser, 30 days following the request by the Initial Purchaser
that the Company file the Shelf Registration Statement) (each such event
referred to in
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clauses (a) through (c) above, a "Registration Default"), the Company will pay
liquidated damages to each Holder of Registrable Securities as to which such
Registration Default applies, during the period of such Registration Default, in
an amount equal to $0.192 per week per $1,000 amount of such Registrable
Securities held by such Holder until the applicable Registration Statement is
filed or declared effective, the Exchange Offer is consummated or the Shelf
Registration Statement again becomes effective, as the case may be. All accrued
liquidated damages shall be paid to Holders in the same manner as interest
payments on the Securities on semi-annual payment dates which correspond to
interest payment dates for the Securities. Following the cure of all
Registration Defaults, the accrual of liquidated damages will cease.
3. Registration Procedures.
In connection with the obligations of the Company with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) prepare and file with the SEC a Registration Statement, within the
relevant time period specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the Company, (ii) shall,
in the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders named therein and by any
Affiliated Market Maker, (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 (iv) shall comply
in all respects with the requirements of Regulation S-T under the 1933 Act,
and use its 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 each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; and cause each Prospectus to be supplemented if so
determined by the Company or requested by the SEC, 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, the 1934 Act and the rules and
regulations thereunder applicable to them with respect to the disposition
of all securities covered by each Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities and each Affiliate Market Maker, at least five
business days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and advising such
Holders that the distribution of Registrable Securities will be made in
accordance with the method selected by the Majority Holders participating
in the Shelf Registration; (ii) furnish to each Holder of Registrable
Securities and each Affiliated Market Maker and to each underwriter of an
underwritten offering of Registrable Securities, if any, without charge, as
many copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto and such other documents as such Holder
or Affiliated Market Maker or underwriter may reasonably request, including
financial statements and schedules and, if so requested, all exhibits in
order to facilitate the public sale or other disposition of the Registrable
Securities; and (iii) hereby consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto and by each Affiliated Market Maker in connection with
sales or market making activities;
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(d) in the case of a Shelf Registration, to register or qualify 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 by the time the
applicable Registration Statement is declared effective by the SEC, and do
any and all other acts and things which may be reasonably necessary or
advisable to enable each 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 where it is
not then so subject;
(e) notify promptly each Holder of Registrable Securities under a
Shelf Registration, each Affiliated Market Maker and any Participating
Broker-Dealer who has notified the Company that it is utilizing the
Exchange Offer Registration Statement as provided in paragraph (f) below
and, if requested by such Holder or Affiliated Market Maker or
Participating Broker-Dealer, confirm such advice in writing promptly (i)
when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii) of
any request by the SEC or any state securities authority for post-effective
amendments and supplements to a Registration Statement and Prospectus or
for additional information after the 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) in
the case of a Shelf Registration, 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 the 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 Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect 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 or the
Exchange Securities, as the case may be, for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose and (vii)
of any determination by the Company that a post-effective amendment to such
Registration Statement would be appropriate;
(f) (A) the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution" which section shall be reasonably acceptable to
Deutsche Bank Securities Inc. on behalf of the Participating
Broker-Dealers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with respect to
the potential "underwriter" status of any broker-dealer that holds
Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities and that will be the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities to be received by such broker-dealer in the Exchange
Offer, whether such positions or policies have been publicly disseminated
by the staff of the SEC or such positions or policies, in the reasonable
judgment of the Initial Purchaser and its counsel, represent the prevailing
views of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory underwriter and
must deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities, (ii) furnish to
each Participating Broker-Dealer who has delivered to the Company the
notice referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Reg-
-9-
istration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such Participating Broker-Dealer may
reasonably request, (iii) hereby consent to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any amendment
or supplement thereto, by any person subject to the prospectus delivery
requirements of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Securities covered by
the Prospectus or any amendment or supplement thereto, for a period not to
exceed 180 days, and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate
in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable Securities
acquired for its own account as a result of market-making activities or
other trading activities, it will deliver a prospectus meeting the
requirements of the Securities Act of 1933 in connection with any resale of
Exchange Securities received in respect of such Registrable Securities
pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer
will not be deemed to admit that it is an underwriter within the meaning of
the 1933 Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Company agrees, if requested by the Initial Purchaser, to deliver to the
Initial Purchaser on behalf of the Participating Broker-Dealers upon
consummation of the Exchange Offer (i) an opinion of counsel or opinions of
counsel in form and substance reasonably satisfactory to the Initial
Purchaser covering the matters customarily covered in underwritten
offerings and such other matters as may be reasonably requested (it being
agreed that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in
Section 5(c) of the Purchase Agreement and such other certifications as are
customarily delivered in a public offering of debt securities and (iii) as
well as upon effectiveness of the Exchange Offer Registration Statement, a
comfort letter or comfort letters, in customary form if permitted by
Statement on Auditing Standards No. 72 of the American Institute of
Certified Public Accountants (or if such a comfort letter is not permitted,
an agreed upon procedures letter in customary form) from the Company's
independent certified public accountants (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
are, or are required to be, included in the Registration Statement);
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchaser and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any comment
letters received from the SEC or any other request by the SEC or any state
securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities and each Affiliated Market Maker included within the
coverage of such Shelf Registration Statement, and each underwriter, if
any, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including financial
statements
-10-
and schedules (without documents incorporated therein by reference and all
exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least two business days
prior to the closing of any sale of Registrable Securities pursuant to such
Shelf Registration Statement;
(k) in the case of a Shelf Registration, upon the occurrence of any
circumstance contemplated by Sections 3(e)(v) and 3(e)(vi) hereof as
promptly as practicable after the occurrence of such event, use its best
efforts to prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities or Participating Broker-Dealers or Affiliated Market Makers,
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 to
make the statements therein, in light of the circumstances under which they
were made, not misleading or will remain so qualified. 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 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;
(l) in the case of a Shelf Registration, a reasonable time prior to
the filing of any Registration Statement, any Prospectus, any amendment to
a Registration Statement or supplement to a Prospectus or any document
which is to be incorporated by reference into a Registration Statement or
Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Initial Purchaser on behalf of such Holders and to
each Affiliated Market Maker; 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, or Affiliated Market
Makers available for discussion of such document;
(m) obtain a CUSIP number for all Exchange Securities, Private
Exchange Securities or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Securities, Private
Exchange Securities or Registrable Securities, as the case may be, in a
form eligible for deposit with the Depositary; the Company will use
commercially reasonable best efforts (including, without limitation, if
necessary, delaying the consummation of the Exchange Offer to a date later
than March 1, 2004) to cause the Exchange Securities to have the same CUSIP
number as the Company's outstanding $150 million 8% Senior Subordinated
Notes due 2013 originally issued under the Indenture;
(n) (i) cause the Indenture or an indenture to be qualified under the
TIA in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, (ii) cooperate with the Trustee
and the Holders to effect such changes 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 best efforts to cause the 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 SEC to enable the
Indenture or an indenture to be so qualified in a timely manner;
-11-
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions as are reasonably requested 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, if
requested by (x) the Initial Purchaser, in the case where the Initial
Purchaser holds Securities acquired by it as part of its initial
distribution and (y) other Holders of Securities covered thereby:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, as are
customarily made by issuers to underwriters in similar underwritten
offerings;
(ii) 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 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 (it being agreed that the matters to be covered by
such opinion may be subject to customary qualifications and
exceptions);
(iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants (and, if necessary,
any other independent certified public accountants of any subsidiary
of the Company or of any business acquired by the Company for which
financial statements are, or are required to be, included in the
Registration Statement) addressed to the underwriters, with copies to
each of the selling Holders of Registrable Securities, such letters to
be in customary form and covering matters of the type customarily
covered in "cold comfort" letters to underwriters in connection with
similar underwritten offerings in accordance with Statement on
Auditing Standards No. 72 of the American Institute of Certified
Public Accountants;
(iv) enter into a securities sales agreement with the Holders and
an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall
be in form, substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same
to set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth
in Section 4 hereof with respect to the underwriters and all other
parties to be indemnified pursuant to said Section or, at the request
of any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and
(vi) deliver such 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 each closing under any underwriting or similar
agreement or as and to the extent required thereunder.
(p) in the case of a Shelf Registration or if a Prospectus is required
to be delivered by any Participating Broker-Dealer in the case of an
Exchange Offer, make reasonably available for
-12-
inspection by representatives of the Holders of the Registrable Securities,
any underwriters participating in any disposition pursuant to a Shelf
Registration Statement, any Participating Broker-Dealer and any counsel or
accountant retained by any of the foregoing (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records")
reasonably necessary to enable such persons to exercise any applicable due
diligence responsibilities, and cause the respective officers, directors,
employees, and any other agents of the Company to supply all information
reasonably requested by any such representative, underwriter, special
counsel or accountant in connection with a Registration Statement, and make
such representatives of the Company available for discussion of such
documents as shall be reasonably requested by the Initial Purchaser;
provided, however, that the foregoing inspection and information gathering
shall be coordinated on behalf of the parties other than the Initial
Purchaser, by one counsel designated by the holders of a Majority of the
Registrable Securities. Records which the Company determines, in good
faith, to be confidential and any records which it notifies the Inspectors
are confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement or is otherwise
required by law, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or is
necessary in connection with any action, suit or proceeding or (iii) the
information in such Records has been made generally available to the
public. Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to agree in writing that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such is made
generally available to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to
further agree in writing that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company at its expense to undertake appropriate
action to prevent disclosure of the Records deemed confidential;
(q) (i) in the case of an Exchange Offer Registration Statement a
reasonable time prior to the filing of any Exchange Offer Registration
Statement, any Prospectus forming a part thereof, any amendment to an
Exchange Offer Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Initial Purchaser or
counsel to the Holders of Registrable Securities and make such changes in
any such document prior to the filing thereof as the Initial Purchaser to
counsel to the Holders of Registrable Securities and may reasonably request
and, except as otherwise required by applicable law, nor file any such
document in a form to which the Initial Purchaser on behalf of the Holders
of Registrable Securities and counsel to Holders of Registrable Securities
shall not have previously been advised and furnished a copy of or to which
the Initial Purchaser on behalf of the Holders of Registrable Securities
shall reasonably object and make the representatives of the Company
available for discussion of such documents as shall be reasonably requested
by the Initial Purchaser, and
(ii) in the case of a Shelf Registration, a reasonable time prior
to filing any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Securities, to the Initial Purchaser, to counsel on
behalf of the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any, make such changes
in any such document prior to the filing thereof as the Initial Purchaser,
the counsel to the Holders or the underwriter or underwriters reasonably
request and not file any such document in a form to which the Majority
Holders, the Initial Purchaser on behalf of the Holders of the Registrable
Securities, counsel to the Holders of Registrable Securities or any
underwriter shall reasonably object, and make the representatives of the
Company avail-
-13-
able for discussion of such document as shall be reasonably requested by
the Holders of Registrable Securities, the Initial Purchaser on behalf of
such Holders, or any underwriter;
(r) in the case of a Shelf Registration, use its best efforts to cause
all Registrable Securities to be listed on any securities exchange on which
similar debt securities issued by the Company are then listed if requested
by the Majority Holders, or if requested by the underwriter or underwriters
of an underwritten offering of Registrable Securities, if any;
(s) in the case of a Shelf Registration, use its best efforts to cause
the Registrable Securities to be rerated by the appropriate rating
agencies, if so requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;
(t) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make
available to its security holders an earning statement satisfying the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder (or any
similar rule promulgated under the 0000 Xxx) no later than the end of any
12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the first fiscal
quarter of the Company after the effective date of a Registration
Statement, which statement shall cover said 12-month periods;
(u) cooperate and assist in any filings required to be made with the
NASD and, in the case of a Shelf Registration, 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); and
(v) upon consummation of an Exchange Offer or a Private Exchange, if
requested by the Trustee, obtain a customary opinion of counsel to the
Company addressed to the Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer or Private
Exchange, and which includes an opinion that (i) the Company has duly
authorized, executed and delivered the Exchange Securities and/or Private
Exchange Securities, as applicable and the related indenture, and (ii) each
of the Exchange Securities and related indenture constitute a legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its respective terms (in each case with customary
exceptions).
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 the Holder and the proposed distribution
by such Holder of such Registrable Securities for inclusion in any Shelf
Registration Statement or Prospectus included therein as the Company may from
time to time reasonably request in writing. The Company shall have no obligation
to register under the 1933 Act the Registrable Securities of a seller who so
fails to furnish such information within a reasonable time after receiving such
request. Each Holder as to which any Shelf Registration is being effected agrees
to furnish to the Company all information with respect to such Holder necessary
to make the information previously furnished to the Company by such Holder not
materially misleading.
In the case of a Shelf Registration Statement, each Holder and each
Affiliated Market Maker agrees that, upon receipt of any notice from the Company
of the occurrence of a circumstance contemplated by Sections 3(e)(v) and
3(e)(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Person's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the
-14-
Company, such Holder will deliver to the Company (at its expense) all copies in
such Person's possession of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
If any of the Registrable Securities covered by any Shelf 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 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 and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
4. Indemnification; Contribution.
(a) In connection with any Registration Statement, the Company agrees
to indemnify and hold harmless the Initial Purchaser, each Holder, each
Participating Broker-Dealer, each person who participates as an underwriter (any
such person being an "Underwriter") and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto) pursuant to which
Exchange Securities or Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided, that (subject to Section
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 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 the indemnity agreement of this Section 4 shall not
apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to the
Company by the 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 the Company shall not be liable to
any such Holder, Participating Broker-Dealer or controlling person, with re-
-15-
spect to any untrue statement or alleged untrue statement or omission or alleged
omission in any preliminary Prospectus to the extent that any such loss,
liability, claim, damage or expense of any Holder, Participating Broker-Dealer
or controlling person results from the fact that such Holder or Participating
Broker-Dealer sold Securities to a person to whom there was not sent or given,
at or prior to the written confirmation of such sale, a copy of the final
Prospectus as then amended or supplemented if the Company had previously
furnished copies thereof to such Holder or Participating Broker-Dealer and the
loss, liability, claim, damage or expense of such Holder, Participating
Broker-Dealer or controlling person results from an untrue statement or omission
of a material fact contained in the preliminary Prospectus which was corrected
in the final Prospectus. Any amounts advanced by the Company to an indemnified
party pursuant to this Section 4 as a result of such losses shall be returned to
the Company if it shall be finally determined by such a court in a judgment not
subject to appeal or final review that such indemnified party was not entitled
to indemnification by the Company.
(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, each
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 Shelf 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 such Holder
expressly for use in the Shelf 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 Shelf 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 the indemnity agreement of this Section 4.
An indemnifying party may participate at its own expense in the defense of such
action. If an indemnifying party so elects within a reasonable time after
receipt of such notice, an indemnifying party, severally or jointly with any
other indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably acceptable to the indemnified
parties defendant (or target of) in such action, provided, however, that if (i)
representation of such indemnified party by the same counsel would present a
conflict of interest or (ii) the actual or potential defendants in, or targets
of, any such action include both the indemnified party and the indemnifying
party and any such indemnified party reasonably determines that there may be
legal defenses available to such indemnified party which are different from or
in addition to those available to such indemnifying party, then in the case of
clauses (i) or (ii) of this Section 4(c) such indemnifying party and counsel for
each indemnifying party or parties shall not be entitled to assume such defense.
If an indemnifying party is not entitled to assume the defense of such action as
a result of the proviso to the preceding sentence, counsel for each indemnified
party or parties shall be entitled to conduct the defense of such indemnified
party or parties. If an indemnifying party assumes the defense of such action,
in accordance with and as permitted by the provisions of this paragraph, such
indemnifying parties shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action.
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 writ-
-16-
ten 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 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 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.
Notwithstanding the immediately preceding 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, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 4(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case 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 by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand, and the Holders
and the Initial Purchaser on the other hand, in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the Holders and
the Initial Purchaser on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Holders or the Initial Purchaser and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchaser agree that it would
not be just and equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 4(e). The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
4(e) 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(e), the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price at which the Securities
-17-
sold by it were offered exceeds the amount of any damages which the Initial
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4(e), each Person, if any, who controls
the Initial Purchaser or a Holder 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 Holder, and each director of the Company 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.
5. Additional Agreements with Respect to Affiliated Market Makers.
5.1. From and after the effectiveness of any Registration Statement,
the Company shall, for so long as any Securities, Exchange Securities or Private
Exchange Securities are outstanding and any Affiliated Market Maker is required
by applicable law in the judgment of counsel to the Initial Purchaser, after
consultation with counsel to the Company to deliver a prospectus in connection
with sales or market making activities, periodically amend each Registration
Statement or amend each Prospectus covering Securities, Exchange Securities or
Private Exchange Securities to reflect the occurrence of any fact or information
becoming known to the Company that should be set forth in an amendment to any
such Registration Statement or in a supplement to any such Prospectus so that
each such Prospectus, when delivered by an Affiliated Market Maker to a
purchaser in connection with sales or market marking activities of such
Affiliated Market Maker, will comply with applicable law.
5.2. Prior to filing any amendment to any such Registration Statement
or any supplement to any such Prospectus, the Company shall furnish a reasonable
period of time prior to the proposed filing thereof to each Affiliated Market
Maker and their counsel copies of all such documents proposed to be filed, which
documents shall be subject to review. The Company shall provide to each
Affiliated Market Maker and such counsel such reasonable number of copies of
each filed amendment or supplement as shall be requested and hereby consents to
the use of such Prospectus or any amendment or supplement thereto by each
Affiliated Market Maker in connection with sales or market making activities
with respect to the Securities, Exchange Securities or Private Exchange
Securities.
5.3. In connection with any such sales or market making activities as
contemplated by this Section 5, the Company agrees to indemnify each Affiliated
Market Maker, and if applicable to contribute to such Affiliated Market Maker
and such Affiliated Market Maker agrees to indemnify the Company, and if
applicable to contribute to the Company, in each case in a manner substantially
identical to that specified in Section 4 hereof.
5.4. In the case of a Registration Statement, each Affiliated Market
Maker agrees that, upon receipt of any notice from the Company of the occurrence
of a circumstance contemplated by the following:
(i) 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 requires the making of any changes
in such Registration Statement or Prospectus in order to make the
statements therein not misleading; or
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(ii) the receipt by the Company of any notification with respect
to the suspension of the qualification of the Exchange Securities, for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, such Affiliated Market Maker will forthwith discontinue
disposition of such Exchange Securities, pursuant to a Registration
Statement until such Person's receipt of the copies of the supplemented or
amended Prospectus in accordance with the following:
(iii) that as promptly as practicable after the occurrence of an
event contemplated by (i) and (ii) of this Section 5.4, the Company shall
use its best efforts to prepare a supplement or post-effective amendment to
the Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Exchange 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 to
make the statements therein, in light of the circumstances under which they
are made, not misleading or will remain so qualified.
Further, if so directed by the Company, such Affiliated Market Maker
will deliver to the Company (at its expense) all copies in such Person's
possession of the Prospectus covering such Exchange Securities current at the
time of receipt of such notice.
6. Miscellaneous.
6.1. Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act and any
Registrable Securities remain outstanding, the Company 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 and the rules and regulations adopted by the SEC thereunder. If the
Company ceases to be so required to file such reports, the Company covenants
that it will upon the request of any Holder of Registrable Securities (a) make
publicly available such information as is necessary to permit sales pursuant to
Rule 144 under the 1933 Act, (b) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under the 1933
Act and it will take such further action as any Holder 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 of Registrable Securities, the Company will deliver to such Holder
a written statement as to whether it has complied with such requirements.
6.2. No Inconsistent Agreements. The Company has not entered into and
the Company will not 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 in any way conflict with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
6.3. 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.
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6.4. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6.4, which address initially shall be the address set forth in Section
12 of the Purchase Agreement with respect to the Initial Purchaser; and (b) if
to the Company, initially at the Company's address set forth in Section 12 of
the Purchase Agreement, and thereafter at such other address of which notice is
given in accordance with the provisions of this Section 6.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; 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 under the
Indenture, at the address specified in such Indenture.
6.5. Successor 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 nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms 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 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.
6.6. Third Party Beneficiaries. The Initial Purchaser (even if the
Initial Purchaser is not a Holder of Registrable Securities) shall be a third
party beneficiary to 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.
6.7. Specific Enforcement. Without limiting the remedies available to
the Initial Purchaser and the Holders, the Company acknowledges that any failure
by the Company to comply with its obligations under Section 2.1 through 2.4
hereof may result in material irreparable injury to the Initial Purchaser or the
Holders for which there is no adequate remedy at law, that it would not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchaser or any Holder may obtain such relief
as may be required to specifically enforce the Company's obligations under
Section 2.1 through 2.4 hereof.
6.8. 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.
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6.9. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
6.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
6.11. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXX SCIENTIFIC INTERNATIONAL INC.
By:
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Name:
Title:
Confirmed and accepted as of the date first above written:
DEUTSCHE BANK SECURITIES INC.
By:
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Name:
Title:
By:
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Name:
Title:
