Exhibit 4.2
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 19, 2007
BETWEEN
SPSS INC.
AND
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into this 19th day
of March, 2007 between SPSS Inc., a Delaware corporation (the "Company") and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated as of
March 13, 2007, between the Company and the Initial Purchaser (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial Purchaser
of an aggregate of $125,000,000 aggregate principal amount ($150,000,000
principal amount if the Initial Purchaser exercises its overallotment option in
full) of the Company's 2.50% Convertible Subordinated Notes due 2012 (the
"Notes" and together with the shares of common stock of the Company into which
the Notes are convertible, the "Securities"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement. The execution of
this Agreement is a condition to the closing under the 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.
"1939 Act" shall mean the Trust Indenture Act of 1939, as amended from time
to time.
"Additional Interest" shall have the meaning set forth in Section 2.4
herein.
"Agreement" shall mean this Registration Rights Agreement as it may be
amended, modified or supplemented from time to time in accordance with the terms
thereof.
"Closing Date" shall mean the Closing Time as defined in the Purchase
Agreement.
"Common Stock" shall mean any shares of common stock, $0.01 par value, of
the Company and any other shares of common stock as may constitute "Common
Stock" for purposes of the Indenture.
"Company" shall have the meaning set forth in the preamble 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" shall have the meaning set forth in Section 2.1(b)
herein.
"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 owners, beneficial or otherwise, of Registrable
Securities under the Indenture.
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"Indenture" shall mean the Indenture relating to the Notes, dated as of the
date hereof, between the Company and LaSalle 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.
"Issuer Free Writing Prospectus" shall have the meaning set forth in
Section 2.1(f) herein.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding 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 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.
"Offering Memorandum" means that certain offering memorandum dated March
13, 2007 relating to the issuance of the Notes.
"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.
"Prospectus" shall mean the prospectus included in a Shelf 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 materials incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Questionnaire" shall have the meaning set forth in Section 2.1(d) herein.
"Registrable Securities" shall mean all or any of the Notes issued from
time to time under the Indenture, and the shares of Common Stock issuable upon
conversion of such Notes; provided, however, that any such Securities shall
cease to be Registrable Securities upon the earliest to occur of (i) a Shelf
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 Shelf Registration Statement, (ii) such Securities have been
sold to the public pursuant to Rule 144 or may be sold or transferred pursuant
to Rule 144(k) (or any similar provision then in force, but not Rule 144A) under
the 1933 Act, or (iii) such Securities shall have ceased to be outstanding.
"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 National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees, including,
if applicable, the 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 a single counsel for any underwriters in connection
with blue sky qualification of any of the Registrable Securities and any filings
with the NASD), (iii) all expenses of the Company in preparing or assisting in
preparing, word processing, printing and distributing any Shelf Registration
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Statement, any Prospectus, any amendments or supplements thereto, any 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, if any, (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
"comfort" letters required by or incident to such performance and compliance,
(vii) the reasonable fees and expenses of the Trustee, and any custodian, (viii)
the reasonable fees and expenses of a single counsel to the Holders in
connection with the Shelf Registration Statement (in no event shall the Company
be obligated to pay fees and expenses of such counsel in excess of $5,000),
which counsel shall be selected by the Majority Holders, and (ix) any fees and
expenses of any special experts retained by the Company in connection with any
Shelf Registration Statement, but excluding any underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"Rule 430B Information" means any information included in a Prospectus that
was omitted from the Shelf Registration Statement at the time it became
effective but that is deemed to be part of and included in such Shelf
Registration Statement pursuant to Rule 430B under the 1933 Act.
"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.
"Shelf Registration" shall mean a registration effected pursuant to Section
2.1 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2.1 of this Agreement,
which covers all of the Registrable 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 materials incorporated by reference
therein.
"Suspension Period" shall have the meaning set forth in Section 2.5 herein.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
2. Registration Under the ▇▇▇▇ ▇▇▇.
2.1. Shelf Registration.
(a) The Company shall, at its cost, no later than 120 days after the
Closing Date, file with the SEC, and thereafter shall use its commercially
reasonable efforts to cause to be declared effective as promptly as
practicable but no later than 210 days after the Closing Date, a Shelf
Registration Statement relating to the offer and sale of the Registrable
Securities by the Holders that have provided the information pursuant to
Section 2.1(d).
(b) The Company shall, at its cost, use its commercially reasonable
efforts, subject to Section 2.5, 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 from the Closing
Date, 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, when the Holders, other than
Affiliates (as defined in the Indenture) of the Company, are able to sell
or transfer to the public all Registrable Securities immediately without
restriction
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pursuant to Rule 144 (or any similar provision then in force, including
Rule 144(k) but not Rule 144A) under the 1933 Act or when all Registrable
Securities cease to be outstanding or otherwise to be Registrable
Securities (the "Effectiveness Period").
(c) Subject to Section 2.5, the Company shall use its commercially
reasonable 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.
(d) Notwithstanding any other provision hereof, no Holder of
Registrable Securities may include any of its Registrable Securities in the
Shelf Registration Statement pursuant to this Agreement unless the Holder
furnishes to the Company a fully completed notice and 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 Shelf Registration Statement or
Prospectus included therein and in any application to be filed with or
under state securities laws. In order to be named as a selling
securityholder in the Prospectus at the time of effectiveness of the Shelf
Registration Statement, each Holder must, before the effectiveness of the
Shelf Registration Statement and no later than the 20th day after the
issuance of a press release by the Company announcing the initial filing of
the Shelf Registration Statement, furnish the completed Questionnaire and
such other information that the Company may reasonably request in writing
(it being understood, without limitation, that any requests by the Company
made at the behest or request of the SEC shall be deemed to meet this
standard), 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 Shelf Registration Statement and the Prospectus
in a manner so that upon effectiveness of the Shelf Registration Statement
the Holder will be permitted to deliver the Prospectus to purchasers of the
Holder's Registrable Securities. From and after the date that the Shelf
Registration Statement becomes effective or is first declared effective by
the SEC, upon receipt of a completed Questionnaire and such other
information that the Company may reasonably request in writing, if any, the
Company will use its commercially reasonable efforts to file within 20
business days any amendments or supplements to the Shelf Registration
Statement necessary for such Holder to be named as a selling securityholder
in the Prospectus contained therein to permit such Holder to deliver the
Prospectus to purchasers of the Holder's Securities (subject to the
Company's right to suspend the Shelf Registration Statement as described in
Section 2.5 below); provided, however, that the Shelf Registration
Statement shall include the disclosure required by Rule 430B under the 1933
Act in order to enable the Company to add selling securityholders to the
Shelf Registration Statement pursuant to the filing of prospectus
supplements. The Company shall not be required to file more than one such
amendment to the Shelf Registration Statement in any calendar quarter for
all such Holders. Holders that do not deliver a completed written
Questionnaire and such other information, as provided for in this Section
2.1(d), will not be named as selling securityholders in the Prospectus.
Each Holder named as a selling securityholder in the Prospectus agrees to
promptly furnish to the Company all information required to be disclosed in
order to make information previously furnished to the Company by the Holder
not materially
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misleading and any other information regarding such Holder and the
distribution of such Holder's Registrable Securities as the Company may
from time to time reasonably request in writing.
(e) Each Holder agrees not to sell any Registrable Securities pursuant
to the Shelf Registration Statement without delivering, or causing to be
delivered, a Prospectus to the purchaser thereof and, following termination
of the Effectiveness Period, to notify the Company, within ten days of a
written request by the Company, of the amount of Registrable Securities
sold pursuant to the Shelf Registration Statement and, in the absence of a
response, the Company may assume that all of such Holder's Registrable
Securities have been so sold; provided, that the Company shall use
reasonable efforts to confirm that all of such Holder's Registrable
Securities have been so sold prior to making such assumption.
(f) The Company represents and agrees that, unless it obtains the
prior consent of Holders of a majority of the Registrable Securities that
are registered under the Shelf Registration Statement at such time or the
consent of the managing underwriter in connection with any underwritten
offering of Registrable Securities, and each Holder represents and agrees
that, unless it obtains the prior consent of the Company and any such
underwriter, it will not make any offer relating to the Securities that
would constitute an "issuer free writing prospectus," as defined in Rule
433 (an "Issuer Free Writing Prospectus"), or that would otherwise
constitute a "free writing prospectus," as defined in Rule 405, required to
be filed with the SEC. The Company represents that any Issuer Free Writing
Prospectus will not include any information that conflicts with the
information contained in the Shelf Registration Statement or the Prospectus
and, any Issuer Free Writing Prospectus, when taken together with the
information in the Shelf Registration Statement and the Prospectus, will
not include any untrue statement of a material fact or omit to state any
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.
2.2. Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1. Each Holder
shall pay all underwriting discounts and commissions, broker fees 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.
2.3. Effectiveness.
(a) The Company will be deemed not to have used commercially
reasonable efforts to cause the Shelf Registration Statement to become, or
to remain, effective during the requisite period if the Company voluntarily
takes any action that would, or omits to take any action which omission
would, result in any such Shelf Registration Statement not being declared
effective or in the Holders of Registrable Securities covered thereby not
being able to offer and sell such Registrable Securities during that period
as and to the extent contemplated hereby, unless such action is required by
applicable law and except as contemplated by Section 2.5.
(b) A Shelf Registration Statement pursuant to Section 2.1 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 Shelf Registration
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Statement will be deemed not to have become effective during the period of
such interference, until the offering of Registrable Securities pursuant to
such Shelf Registration Statement may legally resume.
2.4. Interest. In the event that (a) a Shelf Registration Statement is not
filed with the SEC, in violation of Section 2.1(a), (b) a Shelf
Registration Statement is not declared effective in violation of
Section 2.1(a), (c) after effectiveness, subject to Section 2.5, the
Shelf Registration Statement fails to be effective or usable by the
Holders without being succeeded within seven business days by a
post-effective amendment or a report filed with the SEC pursuant to
the 1934 Act that cures the failure to be effective or usable, or (d)
the Shelf Registration Statement is unusable by the Holders for any
reason, and the number of days for which the Shelf Registration
Statement shall not be usable exceeds the Suspension Period (as
defined in Section 2.5 hereof) (each such event being a "Registration
Default"), additional interest ("Additional Interest"), will accrue at
a rate per annum of one-quarter of one percent (0.25%) of the
principal amount of the Notes for the first 90-day period from the day
following the Registration Default, and thereafter at a rate per annum
of one-half of one percent (0.50%) of the principal amount of the
Notes; provided, that, in no event shall Additional Interest accrue at
a rate per annum exceeding one half of one percent (0.50%) of the
principal amount of the Notes; provided further, that no Additional
Interest shall accrue after the second anniversary of the date of this
Agreement. Upon the cure of all Registration Defaults then continuing,
the accrual of Additional Interest will automatically cease and the
interest rate borne by the Notes will revert to the original interest
rate at such time. Additional Interest shall be computed based on the
actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is not effective or is unusable. Holders who
have converted Notes into Common Stock will not be entitled to receive
any Additional Interest with respect to such Common Stock or the
principal amount of the Notes converted. In no event will Additional
Interest be payable in connection with a Registration Default relating
to a failure to register the Common Stock issuable upon a conversion
of the Notes. For the avoidance of doubt, if the Company fails to
register both the Notes and the Common Stock issuable upon conversion
of such Notes, then Additional Interest will be payable in connection
with the Registration Default relating to the failure to register the
Notes.
The Company shall notify the Trustee within five business days after each
and every date on which an event occurs in respect of which Additional Interest
is required to be paid. Additional Interest shall be paid by depositing with the
Trustee, in trust, for the benefit of the Holders of Registrable Securities, on
or before the applicable semiannual interest payment date, in immediately
available funds, sums sufficient to pay the Additional Interest then due. The
Additional Interest due shall be payable in arrears on each interest payment
date to the record Holder of Registrable Securities entitled to receive the
interest payment to be paid on such date as set forth in the Indenture. Each
obligation to pay Additional Interest shall be deemed to accrue from and
including the day following the Registration Default to but excluding the day on
which the Registration Default is cured.
A Registration Default under clause (a) above shall be cured on the date
that the Registration Statement is filed with the SEC. A Registration Default
under clause (b) above shall be cured on the date that the Shelf Registration
Statement is declared effective by the SEC. A Registration Default under clause
(c) above shall be cured on the date an amended Shelf Registration Statement is
declared effective by the SEC. A Registration Default under clause (d) above
shall be cured on the date an amended Shelf Registration Statement is declared
effective by the SEC or the Company otherwise declares the Shelf Registration
Statement to be usable. The Company will have no liabilities for monetary
damages other than the Additional Interest with respect to any Registration
Default.
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2.5. Suspension. The Company may suspend the use of any Prospectus, without
incurring or accruing any obligation to pay Additional Interest
pursuant to Section 2.4 hereof, for a period not to exceed 45 calendar
days in any three-month period, or an aggregate of 90 calendar days in
any twelve-month period (each, a "Suspension Period"), if the Board of
Directors of the Company shall have determined in good faith that
because of valid business reasons (not including avoidance of the
Company's obligations hereunder), including without limitation
proposed or pending corporate developments and similar events or
because of filings with the SEC, it is in the best interests of the
Company to suspend such use, and prior to suspending such use the
Company provides the Holders that have provided the information
required by Section 2.1(d) with written notice of such suspension,
which notice need not specify the nature of the event giving rise to
such suspension. Each Holder shall keep confidential any
communications received by it from the Company regarding the
suspension of the use of the Prospectus, except as required by
applicable law.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the Shelf
Registration, the Company shall:
(a) prepare and file with the SEC a Shelf 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 be available for the sale of the Registrable Securities by the
Holders, (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 applicable requirements of Regulation S-T under the 1933 Act, if
any, and use commercially reasonable efforts to cause such Shelf
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 Shelf Registration Statement as may be necessary under
applicable law to keep the Shelf Registration Statement effective for the
Effectiveness Period, subject to Section 2.5; and 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 during the Effectiveness
Period with the provisions of the 1933 Act, the 1934 Act and the rules and
regulations thereunder required to enable the disposition of all
Registrable Securities covered by the Shelf Registration Statement in
accordance with the intended method or methods of distribution by the
selling Holders thereof;
(c) (i) notify each Holder of Registrable Securities of the filing, by
issuing a press release, of a Shelf Registration Statement with respect to
the Registrable Securities; (ii) furnish to each Holder of Registrable
Securities that has provided the information required by Section 2.1(d) 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 underwriter may reasonably request,
including financial statements and schedules and, if the Holder so
requests, all exhibits in order to facilitate the unrestricted sale or
other disposition of the Registrable Securities; (iii) mail a Questionnaire
not less than 30 days prior to the time that the Company intends in good
faith to have the Shelf Registration Statement declared effective to each
registered Holder and to Depositary participants listed on a recently
obtained security position
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listing from the Depositary; and (iv) subject to Section 2.5 hereof and to
any notice by the Company in accordance with Section 3(e) hereof of the
existence of any fact of the kind described in Sections 3(e)(ii), (iii),
(iv), (v) and (vi) hereof, hereby consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Registrable Securities that has provided the information required by
Section 2.1(d) in connection with the offering and sale of the Registrable
Securities;
(d) use commercially reasonable efforts 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 Shelf Registration Statement and each underwriter of an underwritten
offering of Registrable Securities shall reasonably request, 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 that has provided the information required by Section
2.1(d) and, if requested by such Holder, confirm such notice in writing
promptly (i) when a Shelf Registration Statement has become effective and
when any post-effective amendments (other than supplements that do nothing
more than name Holders and provide information with respect thereto or that
are required to be filed by the Company under the ▇▇▇▇ ▇▇▇) thereto become
effective, (ii) of any request by the SEC or any state securities authority
for post-effective amendments and supplements to a Shelf Registration
Statement and Prospectus or for additional information after the Shelf
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 Shelf Registration Statement or the initiation of any
proceedings for that purpose, (iv) subject to Section 2.5, 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
Shelf Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such Shelf
Registration Statement or Prospectus in order to make the statements
therein not misleading (provided, however, that no notice by the Company
shall be required pursuant to this clause (iv) in the event that the
Company either promptly files a supplement to update the Prospectus or a
Form 8-K or other appropriate 1934 Act report that is incorporated by
reference into the Shelf Registration Statement, which, in either case,
contains the requisite information that results in such Shelf Registration
Statement no longer containing any untrue statement of a material fact or
omitting to state a material fact necessary in order to make the statements
therein not misleading), (v) 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 (vi) of any
determination by the Company that a post-effective amendment (other than
supplements that do nothing more than name Holders and provide information
with respect thereto or that are required to be filed by the Company under
the ▇▇▇▇ ▇▇▇) to such Shelf Registration Statement would be appropriate;
(f) furnish to the Initial Purchaser on behalf of the Holders and to
special counsel to the Initial Purchaser (i) copies of any comment letters
received from the SEC with respect to a Shelf Registration Statement or,
after the initial filing of a Shelf Registration Statement and prior to its
effectiveness, any documents incorporated therein and (ii) any other
request by the SEC or any
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state securities authority for amendments or supplements to a Shelf
Registration Statement and Prospectus or for additional information with
respect to the Shelf Registration Statement and Prospectus;
(g) use commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a Shelf Registration Statement as
soon as practicable;
(h) furnish to each Holder of Registrable Securities that has provided
the information required by Section 2.1(d), and each underwriter, if any,
without charge, at least one conformed copy of each Shelf Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference and all exhibits thereto, unless
requested);
(i) if necessary, 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 (other than as required by the Company's
certificate of incorporation or bylaws or applicable law); 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 three
business days prior to the closing of any sale of Registrable Securities;
(j) upon the occurrence of any event or the discovery of any facts,
each as contemplated by Sections 3(e)(ii), (iii), (iv), (v) and (vi)
hereof, as promptly as practicable after the occurrence of such an event,
but subject to Section 5.2, use commercially reasonable efforts to prepare
a supplement or post-effective amendment to the Shelf 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, 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
to promptly notify each Holder that has provided the information required
by Section 2.1(d) 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;
(k) provide the Trustee with certificates for the Registrable
Securities in a form eligible for deposit with the Depositary;
(l) (i) use commercially reasonable efforts to cause the Indenture to
be qualified under the 1939 Act in connection with the registration of the
Registrable Securities, (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 1939 Act, and (iii)
execute, and use commercially reasonable 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 to be so qualified in a timely manner;
(m) enter into such customary agreements and take all other customary
and appropriate actions in order to expedite or facilitate the disposition
of such Registrable Securities, including, but not limited to:
9
(i) obtain opinions of counsel to the Company and updates thereof
addressed to each selling Holder and the underwriters, if any,
covering the matters set forth in the opinion of such counsel
delivered at the Closing Date;
(ii) obtain "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 Shelf
Registration Statement) addressed to the underwriters, if any, and use
reasonable efforts to have such letter addressed to the selling
Holders of Registrable Securities (to the extent consistent with
Statement on Auditing Standards No. 72 of the American Institute of
Certified Public Accountants), such letters to be substantially in the
form and covering the matters covered in the comfort letter delivered
on the Closing Date;
(iii) 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
(iv) 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 only in connection with any underwritten offering of
Registrable Securities using such Shelf Registration Statement pursuant to an
underwriting or similar agreement as and to the extent required thereunder, and
as reasonably requested by any of the parties thereto; provided, however, that
in no event will an underwritten offering of Registrable Securities be made
without the prior written agreement of the Company;
(n) if reasonably requested in connection with a disposition of
Registrable Securities, make available for inspection during business hours
by representatives of the Holders of the Registrable Securities, any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by any of the
foregoing, all financial and other records, pertinent corporate documents
and properties of the Company reasonably requested by any such persons, 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 Shelf Registration Statement, and make such representatives of the
Company available for discussion of such documents as shall be reasonably
requested by the Initial Purchaser, in each case as is customary for "due
diligence" investigations; provided, that, to the extent the Company, in
its reasonable discretion, agrees to disclose material non-public or other
confidential information, such persons shall first agree in writing with
the Company that any such non-public or confidential information shall be
kept confidential by such persons and shall be used solely for the purposes
of exercising rights under this Agreement and such person shall not engage
in trading any securities of the Company until such material non-public or
confidential information becomes properly publicly available, unless (i)
disclosure of such information is required by court or administrative order
or is necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is
10
required by law (including any disclosure requirements pursuant to federal
securities laws in connection with the filing of any Shelf Registration
Statement or the use of any Prospectus referred to in this Agreement upon a
customary opinion of counsel for such persons delivered and reasonably
satisfactory to the Company), (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, (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 (v) the Company informs such
Holders that such non-public information ceases to be material; provided
further, that, the foregoing inspection and information gathering shall, to
the greatest extent possible, be coordinated on behalf of all the Holders
and the other parties entitled thereto by special counsel to the Holders;
The above shall be done only in connection with any underwritten offering of
Registrable Securities using such Shelf Registration Statement pursuant to an
underwriting or similar agreement as and to the extent required thereunder, and
as reasonably requested by any of the parties thereto; provided, however, that
in no event will an underwritten offering of Registrable Securities be made
without the prior written agreement of the Company;
(o) a reasonable time prior to filing the Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to the
Shelf Registration Statement or amendment or supplement to such Prospectus
(other than amendments and supplements that do nothing more than name
Holders and provide information with respect thereto or that are required
to be filed by the Company under the 1934 Act), furnish to the Initial
Purchaser on behalf of the Holders and one special counsel to the Initial
Purchaser copies of all such documents proposed to be filed, use its
commercially reasonable efforts to reflect in each such document when so
filed with the SEC such comments as the Initial Purchaser and such special
counsel to the Initial Purchaser reasonably shall propose within two
business days of the delivery of such copies to the Initial Purchaser and
counsel to the Initial Purchaser and make representatives of the Company,
as shall be reasonably requested by the Initial Purchaser on behalf of the
Holders, available for discussion of such documents. In addition, if any
Holder that has provided the information required by Section 2.1(d) shall
so request in writing, a reasonable time prior to filing any such
documents, the Company shall furnish to such Holder copies of all such
documents proposed to be filed and use its reasonable efforts to reflect in
each such document when so filed with the SEC such comments as such Holder
reasonably shall propose within two business days of the delivery of such
copies to such Holder and make representatives of the Company, as shall be
reasonably requested by such Holder, available for discussion of such
documents;
(p) if requested by any selling Holder or the underwriters, if any,
incorporate in the Shelf Registration Statement or Prospectus, pursuant to
a supplement or post-effective amendment if necessary, such information as
such selling Holder or underwriter, if any, may reasonably request to have
included therein with respect to the name or names of such selling Holder,
the number of shares of Common Stock or principal amount of Notes owned by
such Holder, the plan of distribution of the Registrable Securities (as
required by Item 508 of Regulation S-K), the principal amount of Notes or
number of shares of Common Stock being sold, the purchase price being paid
therefor, and any other terms of the offering of the Registrable Securities
to be sold in such offering;
(q) use its commercially reasonable efforts to cause all Registrable
Securities to be listed on any securities exchange or inter-dealer
quotation system 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;
11
(r) otherwise comply with all applicable rules and regulations of the
SEC relating to its obligations hereunder and make available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering at least 12 months which shall satisfy the provisions of Section
11(a) of the 1933 Act and Rule 158 thereunder; and
(s) use its commercially reasonable efforts to cooperate and assist in
any filings required to be made with the NASD 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).
Without limiting the provisions of Section 2.1(d), 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 as the Company may from time to time reasonably request
in writing.
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 Section 3(e)(ii), (iii), (iv), (v) and (vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
Prospectus included in the Shelf Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(j) hereof or written notice from the Company that the Shelf
Registration Statement is again effective and no amendment or supplement is
needed, and, if so directed by the Company, such Holder will deliver to the
Company (at its 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. Each Holder agrees that, upon receipt of written notice from the Company
of any Suspension Period in accordance with Section 2.5 hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
Prospectus included in the Shelf Registration Statement until such Holder's
receipt of written notice from the Company that such Suspension Period has
ended.
In the event that a Registration Default occurs and is continuing under
Section 2.4(a) hereof, the Company shall not file any registration statement
with respect to any securities (within the meaning of Section 2(l) of the ▇▇▇▇
▇▇▇) of the Company other than Registrable Securities or a registration
statement relating to the registration of securities under an employee benefit
plan. In addition, in the event that a Registration Default occurs and is
continuing under Section 2.4(b), (c) or (d) hereof, subject to other contractual
obligations of the Company to third parties, the Company will not take any
action (including requesting acceleration of effectiveness) which would cause
another registration statement with respect to any other securities (within the
meaning of Section 2(l) of the ▇▇▇▇ ▇▇▇) of the Company to become or be declared
effective other than a registration statement relating to the registration of
securities under an employee benefit plan.
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.
12
4. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchaser, each Holder, each Person who participates as an underwriter (any
such Person being an "Underwriter") and each Person, if any, who controls
any such Initial Purchaser, 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 Shelf
Registration Statement (or any amendment or supplement thereto),
including the Rule 430B information, pursuant to which 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 any Issuer Free Writing 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 prior written consent of the Company;
and
(iii) against any and all reasonable out-of-pocket 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 any Holder or Underwriter expressly for use
in a Shelf Registration Statement (or any amendment thereto), including the
Rule 430B information, any Prospectus (or any amendment or supplement
thereto) or any Issuer Free Writing Prospectus (or any amendment or
supplement thereto).
(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 (including the
13
fees and disbursements of counsel chosen by the Company), 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), including the Rule 430B Information, or any Prospectus included
therein (or any amendment or supplement thereto) or any Issuer Free Writing
Prospectus 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 expressly for use in the Shelf Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement
thereto) or any Issuer Free Writing Prospectus; 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 to so 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 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 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.
(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 fault of 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.
14
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, or by 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. 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 reasonable out-of-pocket 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
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Securities 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 ▇▇▇▇ ▇▇▇) 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 or 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 such
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. Miscellaneous.
5.1. 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 and will not for the term of this Agreement in any
way conflict with the rights granted to the holders of the Company's
other issued and outstanding securities under any such agreements.
5.2. Adjustments Affecting Registrable Securities. The Company shall not,
directly or indirectly, intentionally take any action with respect to
the Registrable Securities as a class that would adversely affect the
ability of the Holders of Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this
Agreement.
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
15
has obtained the written consent of Holders of at least a majority in
aggregate principal amount of the outstanding Registrable Securities
(assuming conversion of all Notes into Common Stock) affected by such
amendment, modification, supplement, waiver or departure.
Notwithstanding the foregoing, this Agreement may be amended by a
written agreement between the Company and the Initial Purchaser,
without the consent of the Holders of the Registrable Securities, in
order to cure any ambiguity or to correct or supplement any provision
contained herein, provided that no such amendment shall adversely
affect the interest of the Holders of Registrable Securities. Each
Holder of Registrable Securities outstanding at the time of any
amendment, modification, waiver or consent pursuant to this Section
5.3, shall be bound by such amendment, modification, waiver or
consent, whether or not any notice or writing indicating such
amendment, modification, waiver or consent is delivered to such
Holder.
5.4. Notices. Unless otherwise specified herein, all notices and other
communications provided for or permitted hereunder shall be made in
writing by hand delivery, registered first-class mail, facsimile, or
any courier guaranteeing overnight delivery (a) if to a Holder, at the
most current address given by such Holder to the Company in a
Questionnaire or 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; and (b) if to the Company, initially at the Company's
address set forth in the Purchase Agreement, and thereafter at such
other address of which notice is given in accordance with the
provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; four business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if sent by facsimile; and on the next business day if timely
delivered to an overnight courier.
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.
5.5. 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. The Initial Purchaser (in its capacity as Initial Purchaser)
shall have no liability or obligation to the Company with respect to
any failure by a Holder, other than such Initial Purchaser, to comply
with, or breach by any Holder, other than such Initial Purchaser, of,
any of the obligations of such Holder under this Agreement.
5.6. 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
16
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 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. 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 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 may 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 seek such relief as may be required to
specifically enforce the Company's obligations under Sections 2.1
hereof.
5.8. Restriction on Resales. Until the expiration of two years after the
original issuance of the Securities, the Company will not, and will
cause its controlled Affiliates not to, resell any Securities that are
"restricted securities" (as such term is defined under Rule 144(a)(3)
under the ▇▇▇▇ ▇▇▇) 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.
5.9. 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.
5.10. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
5.11. 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.
5.12. 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.
5.13. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein with respect to the registration
rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject
matter.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SPSS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: EVP-CFO
Confirmed and accepted
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[Signature Page to Registration Rights Agreement]