Registration Rights Agreement
Dated As of August 6, 1997
among
▇▇▇▇▇▇ Medical Technology, Inc.
and
the Initial Holders
of its
11 3/4 % Series C Senior Secured Step-Up Notes,
due July 1, 2000
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of August 6, 1997, among ▇▇▇▇▇▇ MEDICAL TECHNOLOGY, INC., a
Delaware corporation (the "Company"), and the INITIAL HOLDERS of the Company's
11 3/4 % Series C Senior Secured Step-Up Notes due July 1, 2000 signatory hereto
(collectively, the "Initial Holders").
This Agreement is made in connection with the Company's offer to
the holders of the Company's $85 million principal amount Series B Senior
Secured Notes due July 1, 2000 (the "Old Notes") to exchange the Old Notes for
$85 million principal amount Series D Senior Secured Step-Up Notes due July 1,
2000 (the "New Notes"). The terms of this offer (the "Exchange Offer") are set
forth in an Exchange of Offer and Exit Consent Solicitation dated July 9, 1997.
To induce the Initial Holders to participate in the Exchange Offer, the Company
has agreed to provide to the Initial Holders and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
of this Agreement is a condition to the consummation of the Exchange Offer.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"1934 Act" shall mean the Securities Exchange Act of l934, as
amended from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Business Days" shall mean any day other than (i) Saturday or
Sunday, or (ii) a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to be closed.
"Closing Date" shall mean August __, 1997.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Delay Period" shall have the meaning set forth in
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Section 3(k).
"Depository" shall mean The Depository Trust Company, or any
other depository appointed by the Company, provided, however, that such
depository must have an address in the Borough of Manhattan, in the City
of New York.
"Event Date" shall have the meaning set forth in
Section 2.4(a).
"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" shall have the meaning set forth in
Section 2.1 hereof.
"Holder" shall mean an Initial Holder, for so long as it owns
any Registrable New Notes, and each of its successors, assigns and
direct and indirect transferees who become registered owners of
Registrable New Notes under the Indenture.
"Indenture" shall mean the Indenture relating to the New Notes,
dated as of the date hereof, between the Company and State Street Bank
and Trust Company, as trustee, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with the
terms thereof.
"Initial Holder" shall have the meaning set forth in
the preamble.
"Liquidated Damages Amount" shall have the meaning
set forth in Section 2.4(a).
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable New Notes;
provided that whenever the consent or approval of Holders of a specified
percentage of Registrable New Notes is required hereunder, Registrable
New Notes held by the Company and other obligors on the New Notes or any
Affiliate
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(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.
"NASD" shall mean the National Association of
Securities Dealers, Inc.
"Participating Broker-Dealer" shall mean any broker-dealer which
makes a market in the New Notes and exchanges Registrable New Notes in
the Exchange Offer for Registered
New Notes.
"Person" shall mean an individual, trustee, joint stock company,
joint venture, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision
thereof, union, business association, firm or other entity.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part
of an effective registration statement in reliance upon Rule 430A
promulgated under the 1933 Act, 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
New Notes 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 or deemed to be incorporated by reference in the
prospectus.
"Registered Exchange Offer" shall mean the exchange offer by the
Company of Registered Exchange New Notes for Registrable New Notes
pursuant to Section 2.1 hereof.
"Registered New Notes" shall mean the 11 3/4 % Series D Senior
Secured Step-Up Notes due 2000 issued by the Company under the Indenture
containing terms identical to the New Notes in all material respects
(except for references to certain interest rate provisions, restrictions
on transfers and restrictive legends), to be offered to Holders of in
exchange for Registrable New Notes pursuant to the Registered Exchange
Offer.
"Registrable New Notes" shall mean the New Notes;
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provided, however, that New Notes shall cease to be Registrable New
Notes when (i) a Registration Statement with respect to such New Notes
shall have been declared effective under the 1933 Act and such New Notes
shall have been disposed of pursuant to such Registration Statement,
(ii) such New Notes 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 New Notes shall have ceased to be outstanding or
(iv) the Registered Exchange Offer is consummated (except in the case of
New Notes purchased from the Company and continued to be held by the
Holders described in Section 2.2(iii)).
"Registration Default" shall have the meaning set forth
in Section 2.4(a).
"Registration Expenses" shall mean any and all expenses incident
to performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC, stock exchange or NASD
registration and filing fees (but not 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
New Notes 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 Registered New Notes or Registrable New Notes 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 New Notes 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
escrow agent or custodian, (viii) the reasonable fees and disbursements
of one special counsel representing the
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Holders of Registrable New Notes in connection with a Shelf
Registration, such special counsel to be selected by the Majority
Holders and (ix) any fees and disbursements of the underwriters
customarily required to be paid by issuers or sellers of New Notes and
the fees and expenses of any special experts retained by the Company in
connection with any Registration Statement, but excluding underwriting,
brokerage, finder's or similar fees, discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of
Registrable New Notes by a Holder.
"Registration Statement" shall mean any registration statement
of the Company which covers any of the Registered New Notes or
Registrable New Notes 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 or deemed to be incorporated by
reference in such registration statement.
"Rule 144" shall mean Rule 144 under the 1933 Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC.
"Rule 144A" shall mean Rule 144A under the 1933 Act, as such
Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the SEC.
"Rule 415" shall mean Rule 415 under the 1933 Act, as such Rule
may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC" shall mean the Securities and Exchange
Commission.
"Shelf Registration" shall mean a registration effected
pursuant to 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 New Notes on an
appropriate form under Rule 415, 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
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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.
"Trustee" shall mean the trustee with respect to the New Notes
under the Indenture.
"Underwritten Registration or Underwritten
Offering" shall mean a registration in which securities of the Company are
sold to an underwriter for reoffering to the public.
2. Registration Under the 1933 Act.
2.1 Registered Exchange Offer. The Company shall (A) prepare
and, as soon as practicable but not later than 30 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 Registered
Exchange Offer and the issuance and delivery to the Holders, in exchange for the
Registrable New Notes, a like aggregate principal amount of Registered New
Notes, (B) use its reasonable best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the 1933 Act within 90
days following the Closing Date, (C) use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective until consummation of the
Registered Exchange Offer pursuant to its terms and (D) unless the Registered
Exchange Offer would not be permitted by a policy of the SEC, use its reasonable
best efforts to cause the Registered Exchange Offer to be consummated not later
than 120 days following the Closing Date. The Registered New Notes will be
issued under, and entitled to the benefits of, the Indenture or a trust
indenture that is identical to the Indenture (other than such changes as are
necessary to comply with any requirements of the SEC to effect or maintain the
qualification thereof under the TIA). Upon the effectiveness of the Exchange
Offer Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder eligible and electing to exchange Registrable New Notes for
Registered New Notes (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 New Notes acquired directly from the Company
for its own account, (c) acquired the Registered New Notes in the ordinary
course of such Holder's business and (d) has no arrangements or understandings
with any person to participate in the Registered Exchange Offer for the purpose
of distributing the Registered New Notes) to transfer such Registered New Notes
from and after their receipt without any limitations or restrictions under the
1933 Act and without material restrictions under the securities laws of a
substantial
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proportion of the several states of the United States.
In connection with the Registered Exchange Offer, the Company
shall:
(a) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal that is an exhibit to the Exchange Offer
Registration Statement and related documents;
(b) keep the Registered 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 Depository for the
Registered Exchange Offer;
(d) permit Holders to withdraw tendered
Registrable New Notes at any time prior to 5:00 p.m. (Eastern Standard 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 New
Notes delivered for exchange, and a statement that such Holder is withdrawing
his election to have such New Notes exchanged;
(e) notify each Holder that any Registrable New
Note 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 Holders and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all
applicable laws relating to the Registered Exchange Offer.
As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Registrable New Notes
validly tendered and not validly withdrawn pursuant to the
Registered Exchange Offer in accordance with the terms of the
Exchange Offer Registration Statement and the letter of
transmittal which shall be an exhibit thereto;
(ii) deliver to the Trustee for cancellation
all Registrable New Notes so accepted for exchange;
and
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(iii) cause the Trustee promptly to authenticate and
deliver Registered New Notes to each Holder of Registrable New
Notes so accepted for exchange in a principal amount equal to
the aggregate principal amount of the Registrable New Notes of
such Holder so accepted for exchange.
Interest on each Registered Exchange New Note will accrue from
the last date on which interest was paid on the Registrable New Notes
surrendered in exchange therefor or, if no interest has been paid on the
Registrable New Notes, from the date of original issuance. Each Registered
Exchange New Note shall bear interest at the rate set forth thereon; provided,
that interest with respect to the period prior to the issuance thereof shall
accrue at the rate or rates borne by the Registrable New Notes from time to time
during such period. The Registered Exchange Offer shall not be subject to any
conditions, other than (i) that the Registered Exchange Offer, or the making of
any exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
New Notes in accordance with the Exchange Offer, (iii) that each Holder of
Registrable New Notes exchanged in the Registered Exchange Offer shall have
represented that all Registered New Notes 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 Registered Exchange Offer it shall have no arrangement or understanding
with any Person to participate in the distribution (within the meaning of the
▇▇▇▇ ▇▇▇) of the Registered New Notes and shall have made such other
representations as may be 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, (iv) if such Holder is not a
broker-dealer, that it is not engaged in and does not intend to engage in, the
distribution of the Registered New Notes, (v) if such Holder is a broker-dealer
that will receive Registered New Notes that were acquired as a result of
market-making or other trading activities and that it will deliver a prospectus,
as required by law, in connection with any resale of such Registered New Notes,
and (vi) if such Holder is an affiliate of the Company, that it will comply with
the registration and prospectus delivery requirements of the 1933 Act applicable
to it and (vii) 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 Registered Exchange Offer which, in the Company's judgment, would reasonably
be expected to impair the ability of the Company to proceed with the Exchange
Offer.
2.2 Shelf Registration. (i) If, because of any changes
in law, SEC rules or regulations or applicable interpretations thereof by the
staff of the SEC, the Company is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2.1 hereof, (ii) if for any
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other reason the Exchange Offer Registration Statement is not declared effective
within 90 days following the original issue of the Registrable New Notes or the
Registered Exchange Offer is not consummated prior to 120 days after the
original issue of the Registrable New Notes, or (iii) if a Holder is not
permitted by applicable law to participate in the Registered Exchange Offer
based upon written advice to counsel to the effect that such Holder may not
legally be able to participate in the Registered Exchange Offer or if a Holder
elects to participate in the Registered Exchange Offer but does not receive
fully tradable Registered New Notes pursuant to the Registered Exchange Offer,
the Company shall, at its cost:
(a) As promptly as practicable, file with the SEC, and
thereafter shall use its reasonable best efforts to cause to be declared
effective as promptly as practicable, a Shelf Registration Statement relating to
the offer and sale of the Registrable New Notes 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.
(b) Use its reasonable 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 from the
date the Shelf Registration Statement is declared effective by the SEC, or for
such shorter period that will terminate when all Registrable New Notes 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
New Notes.
(c) Notwithstanding any other provisions hereof, use its
reasonable 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, in light of the circumstances under which they
were made, not misleading.
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 New Notes copies of any such supplement or
amendment promptly after its being used or filed with the
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SEC.
The Company agrees (i) not to effect any public or private
offer, sale or distribution of its debt securities, or any other security
convertible into or exchangeable or exercisable for such debt securities,
including a sale pursuant Regulation D under the 1933 Act, during the 10- day
period prior to, and during the 90-day period beginning on, the closing date of
each underwritten offering made pursuant to the Shelf Registration Statement, to
the extent timely notified in writing by the underwriter(s) (except as part of
such registration, if permitted, or pursuant to registration on Forms S-4 or S-8
or any successor form to such Forms) and (ii) to cause each holder of its
privately placed debt securities, or any other security convertible into or
exchangeable or exercisable for such debt securities purchased from the Company
at any time on or after the date of this Agreement to agree not to effect any
public sale or distribution of any such securities during such period, including
a sale pursuant to Rule 144 under the 1933 Act (except as part of such
underwritten offering, if permitted).
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 underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holders Registrable New Notes
pursuant to the Shelf Registration Statement.
2.4 Liquidated Damages.
(a) The Company acknowledges and agrees that the
holders of Registrable New Notes will suffer damages, and that it would not be
feasible to ascertain the extent of such damages with precision, if the Company
fails to fulfill its obligations hereunder. Accordingly, in the event of such
failure, the Company agrees to pay liquidated damages to each Holder under the
circumstances and to the extent set forth below:
(i) if the Exchange Offer Registration
Statement has not been filed with the SEC on or
prior to 30 days after the date hereof; or
(ii) if the Exchange Offer Registration
Statement is not declared effective by the SEC on or
prior to 90 days after the date hereof; or
(iii) if the Company has not accepted for
exchange Registered New Notes for all New Notes validly
tendered in accordance with the terms of the Exchange Offer
within 30 days after the date on which an Exchange Offer
Registration Statement is declared effective by the SEC; or
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(iv) if a Shelf Registration is filed and
declared effective by the SEC but thereafter ceases to be
effective without being succeeded within 30 days by a
subsequent Shelf Registration filed and declared effective;
(each of the foregoing a "Registration Default," and the date on which the
Registration Default occurs being referred to herein as an "Event Date").
Upon the occurrence of any Registration Default, the Company
shall pay, or cause to be paid, in addition to amounts otherwise due under the
Indenture and the Registrable New Notes, as liquidated damages, and not as a
penalty, to each holder of a Registrable New Note, an additional amount (the
"Liquidated Damages Amount") equal to, during the first 90-day period
immediately following the Event Date, .50% per annum on the principal amount of
Registrable New Notes held by such holder, increasing by an additional .50% per
annum at the beginning of each subsequent 90-day period up to a maximum of 2.0%
per annum; provided that such liquidated damages will, in each case, cease to
accrue (subject to the occurrence of another Registration Default) on the date
on which all Registration Defaults have been cured. A Registration Default under
clause (i) above shall be cured on the date that the Exchange Offer Registration
Statement is filed with the SEC; a Registration Default under clause (ii) above
shall be cured on the date that the Exchange Offer Registration Statement is
declared effective by the SEC; a Registration Default under clause (iii) above
shall be cured on the earlier of the date (A) the Exchange Offer is consummated
with respect to all Old Notes validly tendered or (B) the Company delivers
notice of the consummation of the Exchange Offer to the Holders; and a
Registration Default under clause (iv) above shall be cured on the earlier of
(A) the date on which the applicable Shelf Registration is no longer subject to
an order suspending the effectiveness thereof or proceedings relating thereto or
(B) a subsequent Shelf Registration is declared effective.
(b) The Company shall notify the Trustee within
five Business Days after each Event Date. The Company shall pay the liquidated
damages due on the Registrable New Notes by depositing with the Trustee, in
trust, for the benefit of the Holders thereof, by 12:00 noon, New York City
time, on or before the applicable semi-annual interest payment date for the
Registrable New Notes, immediately available funds in sums sufficient to pay the
liquidated damages then due. The liquidated damages amount due shall be payable
on each interest payment date to the Holder entitled to receive the interest
payment to be made on such date as set forth in the Indenture.
2.5 Effectiveness.
(a) Subject to the following Section 2.5(b),
the Company
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will be deemed not to have used its reasonable best efforts to cause the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, to become, or to remain, effective during the requisite period
if the Company voluntarily takes any action that would result in any such
Registration Statement not being declared effective or in the holders of
Registrable New Notes covered thereby not being able to exchange or offer and
sell such Registrable New Notes during that period as and to the extent
contemplated hereby, unless such action is required by applicable law.
(b) Notwithstanding the foregoing Section 2.5(a),
subject to the Holders rights under Section 2.4, if the Board of Directors of
the Company, in its good faith judgment, determines that the Registered Exchange
Offer should not be made or continued because it would materially interfere with
any material financing, acquisition, corporate reorganization or merger or other
material transaction involving the Company or any of its subsidiaries (a "Valid
Business Reason"), (x) the Company may postpone filing a registration statement
relating to the Registered Exchange Offer until such Valid Business Reason no
longer exists, but in no event for more than three months, and (y) in case a
registration statement has been filed relating to the Registered Exchange Offer,
the Company may cause registration statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
registration statement until such Valid Business Reason no longer exists, but in
no event for more than three months (such period of postponement or withdrawal
under sub clause (x) or (y) of this Section 2.5(b), the "Postponement Period");
and the Company shall give the Trustee and the Holders written notice of its
determination to postpone or withdraw the Registered Exchange Offer and of the
fact that the Valid Business Reason for such postponement or withdrawal no
longer exists, in each case, promptly after the occurrence thereof provided,
however, that any such postponement or withdrawal shall be subject to the
payment by the Company of liquidated damages pursuant to Section 2.4 hereof.
The Holders agree that, upon receipt of any notice from the Company
that the Company has determined to withdraw any registration statement pursuant
to clause (y) above, the Holders will discontinue any disposition of Registrable
New Notes pursuant to such registration statement and, if so directed by the
Company, will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Holders possession of the
prospectus covering such Registrable New Notes that was in effect at the time of
receipt of such notice. If the Company shall give any notice of withdrawal or
postponement of a registration statement, the Company shall, at such time as the
Valid Business Reason that caused such withdrawal or postponement no longer
exists (but in no event later than three months after the date
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of the postponement or withdrawal), use its best efforts to effect the
registration under the Securities Act of Registrable New Notes covered by the
withdrawn or postponed registration statement.
(c) 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 Exchange Offer, the Exchange Offer Registration
Statement or offering of Registrable New Notes 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 New Notes
pursuant to such Registration Statement may legally resume.
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 New Notes by the selling Holders thereof and (iii) shall comply as
to form in all material respects with the requirements of the applicable form
and include or incorporate by reference all financial statements required by the
SEC to be filed therewith or incorporated by reference therein, and use its 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 continuously effective
for the time periods required hereby; and cause each Prospectus to be
supplemented by any prospectus supplement required by applicable law, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the 1933 Act and comply with the provisions of the 1933 Act and the
1934 Act applicable to them with respect to the disposition of all New Notes
covered by such Registration Statement, as so amended, or in such Prospectus, as
so supplemented, in accordance with the intended methods of distribution by the
selling Holders set forth in such Registration Statement or Prospectus as so
amended;
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(c) in the case of a Shelf Registration, (i) notify each Holder
of Registrable New Notes, at least five business days prior to filing, that a
Shelf Registration Statement with respect to the Registrable New Notes is being
filed and advising such Holders that the distribution of Registrable New Notes
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 New Notes and to each underwriter of an underwritten offering of
Registrable New Notes, if any, without charge, as many copies of each
Registration Statement, 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 public
sale or other disposition of the Registrable New Notes; and (iii) hereby consent
to the use of the Prospectus or any amendment or supplement thereto by each of
the selling Holders of Registrable New Notes in connection with the offering and
sale of the Registrable New Notes covered by the Prospectus or any amendment or
supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable New Notes under all applicable state securities or "blue sky" laws
of such jurisdictions as any Holder of Registrable New Notes covered by a
Registration Statement and each underwriter of an underwritten offering of
Registrable New Notes 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 New Notes 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 New Notes under a
Shelf Registration or 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
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
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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 New Notes 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 or any document
incorporated or deemed to be incorporated by reference untrue in any material
respect or which requires the making of any changes in such Registration
Statement, Prospectus or document in order to make the statements therein, in
light of the circumstances under which they were made, not misleading and (vi)
of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Registrable New Notes or the Registered New Notes,
as the case may be, for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(f) (A) in the case of the Exchange Offer Registration Statement
(i) include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution" 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 Participating Broker-Dealer that will be the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Registered
New Notes to be received by such Participating Broker-Dealer in the Registered
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 Company and its counsel, represent the prevailing
views of the staff of the SEC, including a statement that any such Participating
Broker-Dealer who receives Registered New Notes for Registrable New Notes
pursuant to the Registered 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 Registered New Notes, (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 Registration 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 Registered New Notes covered by the
Prospectus or any amendment or supplement thereto, and (iv) include in the
transmittal letter or similar documentation to be executed by an exchange
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offeree in order to participate in the Registered Exchange Offer (x) the
following provision:
"If the exchange offeree is a broker-dealer holding Registrable
New Notes 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 1933 Act in
connection with any resale of Registered New Notes received in
respect of such Registrable New Notes pursuant to the Registered
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 New Notes, 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
or Shelf Registration, the Company agrees to deliver to the Holders upon the
effectiveness of the Registered Exchange Offer Registration Statement or Shelf
Registration (i) an opinion of counsel substantially in the form attached hereto
as Exhibit A, (ii) an officers' certificate substantially in the form
customarily delivered in a public offering of debt securities and (iii) a
comfort letter 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);
(g) (i) in the case of a Registered Exchange Offer, furnish
counsel for the Holders and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable New Notes copies of any 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 New Notes, 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 and schedules (without
documents incorporated therein by reference and all exhibits thereto, unless
requested);
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(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable New Notes to facilitate the timely preparation
and delivery of certificates representing Registrable New Notes to be sold and
not bearing any restrictive legends; and enable such Registrable New Notes 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 New Notes;
(k) in the case of a Shelf Registration, upon the occurrence of
any event or the discovery of any facts, each as contemplated by Sections
3(e)(v) and 3(e)(vi) hereof, 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
New Notes or Participating Broker- Dealers, 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; provided, however,
that once the Shelf Registration Statement has been declared effective the
Company may delay effecting or causing to be effected a supplement or
post-effective amendment to the Registration Statement or the related
Prospectus, for a period (the "Delay Period") (i) not to exceed 30 days during
the period beginning 121 days after the original issue of the New Notes and
ending 365 days after the original issue of the New Notes, (ii) not to exceed 90
days during the 365-day period beginning after the first anniversary of the
original issue of the New Notes and (iii) not to exceed 90 days during the
365-day period beginning after the second anniversary of the original issue of
the New Notes; provided, further, that the Company shall notify the Holders in
writing both of its intention to effect such delay and of the date on which such
supplement or post-effective amendment has been filed with the SEC or declared
effective, as the case may be and the Company shall extend the period during
which the Shelf Registration Statement shall be maintained effective pursuant to
this Agreement by the number of days in any Delay Period;
(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 amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration Statement
or a Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Holders; and make representatives of the Company as
shall be reasonably requested by the Holders of Registrable New Notes, available
for discussion of such document;
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(m) obtain a CUSIP number for all Registered New Notes or
Registrable New Notes, as the case may be, not later than the effective date of
a Registration Statement, and provide the Trustee with printed certificates for
the Registered New Notes or the Registrable New Notes, as the case may be, in a
form eligible for deposit with the Depositary;
(n) (i) provide an indenture trustee for the Registered New
Notes or the Registrable New Notes, as the case may be, and cause the Indenture
(or other indenture relating to the Registrable New Notes) to be qualified under
the TIA not later than the effective date of the first Registration Statement,
(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 to be so qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
New Notes and in such connection whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the
Holders of such Registrable New Notes and the underwriters, if
any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as may
be reasonably requested by them;
(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 New Notes being sold) addressed to
each selling Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in sales of
New Notes or underwritten offerings and such other matters as
may be reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof
from the Company's independent certified public accountants
addressed to the underwriters, if any, and use reasonable
efforts to have such letter
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addressed to the selling Holders of Registrable New Notes (to
the extent consistent with Statement on Auditing Standards No.
72 of the American Institute of Certified Public Accounts), 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;
(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 New
Notes, 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;
(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 New Notes being sold and the managing
underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting
agreement or other similar agreement entered into by the
Company; and
(vii) use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending
the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the New Notes for sale
in any jurisdiction, and, if any such order is issued, to use
its reasonable best efforts to obtain the withdrawal of any such
order at the
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earliest possible time.
The above shall be done at (i) the effectiveness of such Registration Statement
(and each post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder;
(p) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable New Notes and
any underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such Holders or
underwriters (collectively, the "Inspectors"), 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 Registration Statement, and make such representatives of
the Company available for discussion of such documents as shall be reasonably
requested by the Inspectors;
(q) 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 New Notes, to the Initial Holders, to counsel on behalf of the
Holders and to the underwriter or underwriters of an underwritten offering of
Registrable New Notes, if any, and make the representatives of the Company
available for discussion of such document as shall be reasonably requested by
the Holders of Registrable New Notes, or any underwriter;
(r) in the case of a Shelf Registration, use its best efforts to
cause all Registrable New Notes 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 New Notes, if any;
(s) in the case of a Shelf Registration, use its reasonable best
efforts to cause the Registrable New Notes to be rated 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 New
Notes, if any;
(t) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and make available to its
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security holders, 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 or any similar rule promulgated under
the 1934 Act;
(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 a Registered Exchange Offer, obtain a
customary opinion of counsel to the Company addressed to the Trustee for the
benefit of all Holders of Registrable New Notes participating in the Registered
Exchange Offer, and which includes an opinion that (i) the Company has duly
authorized, executed and delivered the Registered New Notes and the related
indenture, and (ii) each of the Registered New Notes and related indenture
constitute a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its respective terms (with customary
exceptions).
In the case of a Shelf Registration Statement, the Company may
(as a condition to such Holder's participation in the Shelf Registration)
require each Holder of Registrable New Notes to furnish to the Company such
information regarding the Holder and the proposed distribution by such Holder of
such Registrable New Notes as the Company may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each Holder and
each Participating Broker-Dealer 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)(v) hereof, such Holder will forthwith
discontinue disposition of Registrable New Notes pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(k) hereof, and, if so directed by
the Company, such Holder will deliver to the Company (at its expense) all copies
in such Holders possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable New Notes
current at the time of receipt of such notice. If the Company shall give any
such notice to suspend the disposition of Registrable New Notes pursuant to a
Shelf Registration Statement as a result of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(v) hereof,
the Company shall be deemed to have used its reasonable best efforts to keep the
Shelf Registration Statement effective during such period of suspension provided
that the Company shall use its reasonable best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement to
the Shelf Registration
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Statement and shall extend the period during which the Shelf Registration
Statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such
notice to and including the date when the Holders shall have received copies of
the supplemented or amended Prospectus necessary to resume such dispositions.
In the event that the Company fails to effect the Registered
Exchange Offer or file any Shelf Registration Statement and maintain the
effectiveness of any Shelf Registration Statement as provided herein, the
Company shall not file any Registration Statement with respect to any debt
securities of the Company other than Registrable New Notes and debt securities
issued or issuable by the Company and registered pursuant to Form S-4 under the
1933 Act or issuable under an employee benefit plan of the Company and
registered pursuant to Form S-8 under the ▇▇▇▇ ▇▇▇.
If any of the Registrable New Notes 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 New Notes
included in such offering and shall be reasonably acceptable to the Company. No
Holder of Registrable New Notes may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's Registrable New
Notes 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.
(w) As a condition to its participation in a Registered Exchange
Offer pursuant to the terms of this Agreement, each Holder of Registrable New
Notes shall furnish, upon the request of the Company, prior to the consummation
thereof, a written representation to the Company that it is not engaged in, does
not intend to engage in, and has no arrangement or understanding with any person
to participate in, a distribution of the Registered Exchange Notes to be issued
in the Exchange Offer and that it is acquiring the Registered Exchange Notes in
its ordinary course of business and shall otherwise cooperate in the Company's
preparations for the Exchange Offer. Each Holder hereby acknowledges and agrees
that any such Holder using the Exchange Offer to participate in a distribution
of the securities to be acquired in the Exchange Offer (x) could not rely on the
position of the Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available
June 5, 1991), Exxon Capital Holdings Corporation (available April 13, 1989) and
similar no-action letters (including any no-action letter by the Company in
connection with the transactions contemplated hereby), (y) must comply with
registration and
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prospectus delivery requirements of the 1933 Act in connection with a secondary
resale transaction, and (z) that such a secondary resale transaction should be
covered by an effective registration statement containing the selling security
holder information required by Item 507 of Regulation S-K.
4. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless 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 and the officers, directors, partners,
employees, representatives of each such Holder, Participating Broker-Dealer and
Underwriter to the fullest extent lawful, 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 Registered New Notes or Registrable New Notes 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 form of 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
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counsel chosen by any indemnified party), reasonably incurred in
investigating, preparing, pursuing 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 such
Holder or Underwriter expressly for use in a Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto).
(b) Each Holder severally, but not jointly, agrees to indemnify
and hold harmless the Company, the other Holders and any Underwriter and the
other selling Holders, and each of their respective directors and officers
(including each officer of the Company who signed the Registration Statement),
agents and employees and each Person, if any, who controls the Company, the
other Holders or any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act, and the directors, officers, agents or
employees of such controlling persons, to the fullest extent lawful, 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 or
form of prospectus included therein (or any amendment or supplement thereto) or
in any preliminary prospectus in reliance upon and in conformity with written
information relating to such Holder furnished by such Holder to the Company
expressly for use in the Shelf Registration Statement (or any amendment thereto)
or such Prospectus or form of prospectus (or any amendment or supplement
thereto) or in any preliminary 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 New Notes 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
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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) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 4 is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Holders shall have
a joint and several obligation to contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Company and the Holders; provided, however,
that 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. As between the Company
and the Holders, the Company and the applicable Holders shall contribute to the
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aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportions as shall be
appropriate to reflect the relative benefits received by the Company and the
Holders, from the offering of the New Notes, the Registered New Notes and the
Registrable New Notes (taken together) included in such offering as well as any
other relevant equitable considerations. The Company and the Holders of the
Registrable New Notes agree that it would not be just and equitable if
contribution pursuant to this Section 4 were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the relevant equitable considerations. In no event shall a Holder be required to
contribute any amount in excess of the amount by which proceeds received by such
Holder from sales of Registrable New Notes exceeds the amount of damages that
such Holder has otherwise been required to pay or has paid by reason of such
untrue statements or omissions, or alleged untrue statements or omissions. For
purposes of this Section 4, each Person, if any, who controls a Holder within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Holder, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each Person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as the Company, as the case may be.
5. Miscellaneous.
5.1 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, the
Company covenants that it will file the reports required to be filed by it under
the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, it will upon the request of any Holder of
Registrable New Notes (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 New Notes 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
New Notes 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 New
Notes, the Company will deliver to such Holder a written statement as to whether
it has complied with such requirements.
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5.2 Underwritten Registrations. If any of the Registrable New
Notes covered by any Shelf Registration are to be sold in an Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Majority Holders and shall
be reasonably acceptable to the Company.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holders Registrable New
Notes 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, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
5.3 Remedies. In the event of a breach by the Company of any of
its obligations under this Agreement, each Holder, in addition to being entitled
to exercise all rights provided herein, in the Indenture or granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
5.4 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 New Notes 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.
5.5 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 New Notes affected by such amendment, modification, supplement,
waiver or departure, excluding Registrable New Notes held by the Company and
other obligors on the New Notes and any Affiliate (as defined in the Indenture)
of the Company. Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders
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may be given by Holders of at least a majority in aggregate principal amount of
the Registrable New Notes being sold by such Holders pursuant to such
Registration Statement, provided that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
5.6 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 5.4, which address initially is the address set forth on the signature
pages hereof with respect to the Initial Holders; and (b) if to the Company,
initially at the Company's address set forth on the signature pages hereof, 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; 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.
5.7 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders. If any transferee of any Holder shall
acquire Registrable New Notes, in any manner, whether by operation of law or
otherwise, such Registrable New Notes shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable New Notes 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, and such person shall be
entitled to receive the benefits hereof.
5.8 Third Party Beneficiaries. Each Holder of Registrable New
Notes not a party hereto shall be a third party beneficiary to the agreements
made hereunder 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.
5.9 Counterparts. This Agreement may be executed in any number
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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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
▇▇▇▇▇▇ MEDICAL TECHNOLOGY, INC.
By:_____________________________
Name:
Title:
Confirmed and accepted as
of the date first above
written:
--------------------------------------
[Type or print name of Initial Holder]
By:_________________________________
Name:
Title:
Address:
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