EXHIBIT 10.2
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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
DADE BEHRING HOLDINGS, INC.
AND
THE HOLDERS NAMED HEREIN
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Dated as of October 1, 2002
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TABLE OF CONTENTS
PAGE
1. Definitions..........................................................1
2. Securities Act Shelf Registration on Request.........................3
(a) Shelf Registration..............................................3
(b) Effective Registration Statement................................4
3. Securities Act Registration on Request...............................4
(a) Request.........................................................4
(b) Registration of Other Securities................................6
(c) Registration Statement Form.....................................6
(d) Effective Registration Statement................................6
(e) Selection of Underwriters.......................................7
(f) Priority in Requested Registration..............................7
(g) Shelf Registrations.............................................7
4. Piggyback Registration...............................................7
5. Expenses.............................................................9
6. Registration Procedures..............................................9
7. Underwritten Offerings..............................................13
(a) Requested Underwritten Offerings...............................13
(b) Piggyback Underwritten Offerings: Priority.....................13
(c) Holders of Registrable Common Stock to be Parties
to Underwriting Agreement......................................14
(d) Holdback Agreements............................................15
8. Preparation: Reasonable Investigation...............................15
(a) Registration Statements........................................15
(b) Confidentiality................................................16
9. Postponements.......................................................16
10. Indemnification.....................................................17
(a) Indemnification by the Company.................................17
(b) Indemnification by the Offerors and Sellers....................18
(c) Notices of Losses, etc.........................................18
(d) Contribution...................................................19
(e) Other Indemnification..........................................19
(f) Indemnification Payments.......................................20
11. Registration Rights to Others.......................................20
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12. Adjustments Affecting Registrable Common Stock......................20
13. Schedule 144 and Rule 144A..........................................20
14. Amendments and Waivers..............................................20
15. Nominees for Beneficial Owners......................................21
16. Assignment..........................................................21
17. Calculation of Percentage or Number of Shares of Registrable
Common Stock........................................................21
18. Termination of Registration Rights..................................21
19. Miscellaneous.......................................................21
(a) Further Assurances.............................................21
(b) Headings.......................................................22
(c) Conflicting Instructions.......................................21
(d) Remedies.......................................................22
(e) Entire Agreement...............................................22
(f) Notices........................................................22
(g) Governing Law..................................................22
(h) Severability...................................................22
(i) Counterparts...................................................23
SCHEDULES:
SCHEDULE A - HOLDERS OF REGISTRABLE COMMON STOCK
SCHEDULE B - NOTICES
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of October 1, 2002 (this
"AGREEMENT"), by and among Dade Behring Holdings, Inc., a Delaware corporation
(the "COMPANY"), and the holders of Registrable Common Stock (as hereinafter
defined) who are signatories to this Agreement (the "HOLDERS").
This Agreement is being entered into in connection with the
acquisition of Common Stock (as hereinafter defined) on the date hereof by
certain holders (the "ORIGINAL HOLDERS") pursuant to the Plan (as hereinafter
defined). Upon the issuance of the Common Stock, each Original Holder will own
the number of shares of Common Stock specified with respect to such Original
Holder in Schedule A hereto.
To induce the Original Holders to vote in favor of the Plan and to
accept the issuance of the Common Stock by the Company under the Plan, the
Company has undertaken to register Registrable Common Stock under the Securities
Act (as hereinafter defined) and to take certain other actions with respect to
the Registrable Common Stock. This Agreement sets forth the terms and conditions
of such undertaking.
In consideration of the premises and the mutual agreements set forth
herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, capitalized terms used
herein and in the recitals above shall have the following meanings:
"AFFILIATE" of a Person means any Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such other Person. For purposes of this definition,
"control" means the ability of one Person to direct the management and policies
of another Person.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in
New York City are authorized or required by law to be
closed.
"COMMISSION" means the U.S. Securities and Exchange Commission.
"COMMON STOCK" means the shares of common stock, $.01 par value per
share, of the Company, as adjusted to reflect any merger, consolidation,
recapitalization, reclassification, split-up, stock dividend, rights offering or
reverse stock split made, declared or effected with respect to the Common Stock.
"COMPANY INDEMNITEE" has the meaning set forth in Section 10(a)
hereof.
"EFFECTIVE DATE" means the effective date of the Plan pursuant to the
terms thereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, or any similar or successor statute.
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"EXPENSES" means all expenses incident to the Company's performance of
or compliance with its obligations under this Agreement, including, without
limitation, all registration, filing, listing, stock exchange and NASD fees
(including, without limitation, all fees and expenses of any "qualified
independent underwriter" required by the rules of the NASD), all fees and
expenses of complying with state securities or blue sky laws (including the
reasonable fees, disbursements and other charges of counsel for the underwriters
in connection with blue sky filings), all word processing, duplicating and
printing expenses, messenger, telephone and delivery expenses, all rating agency
fees, the fees, disbursements and other charges of counsel for the Company and
of its independent public accountants, including the expenses incurred in
connection with "cold comfort" letters required by or incident to such
performance and compliance, the fees and expenses incurred in connection with
the listing of the securities to be registered on each securities exchange or
national market system on which similar securities issued by the Company are
then listed, any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities, the reasonable fees, disbursements and other
charges of one firm of counsel (per registration statement prepared) to the
holders of Registrable Common Stock making a request pursuant to Section 2(a) or
Section 3(a) hereof (selected by the Holders holding a majority of the shares of
Registrable Common Stock covered by such registration), the fees and expenses of
any special experts retained by the Company in connection with such
registration, and the fees and expenses of other persons retained by the
Company, but excluding underwriting discounts and commissions and applicable
transfer taxes, if any, which discounts, commissions and transfer taxes shall be
borne by the seller or sellers of Registrable Common Stock in all cases;
PROVIDED, THAT, if the Company shall, in accordance with Section 4 or Section 9
hereof, not register any securities with respect to which it had given written
notice of its intention to register to holders of Registrable Common Stock,
notwithstanding anything to the contrary in the foregoing, all reasonable
out-of-pocket expenses incurred by Requesting Holders in connection with such
registration (other than the reasonable fees, disbursements and other charges of
counsel other than the one firm of counsel referred to above) shall be deemed to
be Expenses.
"HOLDER INDEMNITEE" has the meaning set forth in Section 10(b) hereof.
"INITIAL SHELF" has the meaning set forth in Section 3(a) hereof.
"INITIATING HOLDERS" has the meaning set forth in Section 3(a) hereof.
"INITIATING REQUEST" has the meaning set forth in Section 3(a) hereof.
"LOSS" and "LOSSES" have the meanings set forth in Section 10(a)
hereof.
"MANAGEMENT HOLDERS" means Holders of Registrable Common Stock who are
officers of the Company.
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the National Association of Securities Dealers, Inc.
Automated Quotation System.
"OFFERING DOCUMENTS" has the meaning set forth in Section 10(a)
hereof.
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"PERSON" means any individual, corporation, partnership, firm, joint
venture, association, joint stock company, trust, unincorporated organization,
governmental or regulatory body or subdivision thereof or other entity.
"PIGGYBACK REQUESTING HOLDER" has the meaning set forth in Section 4
hereof.
"PLAN" means the Plan of Reorganization under Chapter 11 of the United
States Bankruptcy Code for the Company and certain of its domestic subsidiaries,
as the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"PUBLIC OFFERING" means a public offering and sale of Common Stock
pursuant to an effective registration statement under the Securities Act.
"REGISTRABLE COMMON STOCK" means any of the Common Stock owned by the
Holders from time to time, PROVIDED, however, that a share of Common Stock will
cease to be Registrable Common Stock after it has been sold under a registration
statement effected pursuant hereto (or, in the case of a Management Holder, a
registration statement on Form S-8) or pursuant to Rule 144 promulgated under
the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder, or any similar or successor statute.
"SELLING HOLDERS" means the holders of Registrable Common Stock
requested to be registered pursuant hereto.
"SHELF REGISTRATION" has the meaning set forth in Section 2(a) hereof.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section
2(a) hereof.
"SHELF REQUESTING HOLDERS" means one or more Holders (other than
Management Holders) holding 10% or more of the shares of Registrable Common
Stock outstanding on the Shelf Request Date (excluding shares held by Management
Holders).
"SHELF REQUEST DATE" has the meaning set forth in Section 2(a) hereof.
"TRANSFER" means any transfer, sale, assignment, pledge, hypothecation
or other disposition of any interest. "TRANSFEROR" and "TRANSFEREE" have
correlative meanings.
2. SECURITIES ACT SHELF REGISTRATION ON REQUEST.
(a) SHELF REGISTRATION. Shelf Requesting Holders may request the
Company to file a shelf registration statement (a "SHELF REGISTRATION
STATEMENT") pursuant to Rule 415 promulgated under the Securities Act (a "SHELF
REGISTRATION") providing for the sale by the Holders of any or all of the
Registrable Common Stock (the date of such request, the "SHELF REQUEST DATE").
Shelf Requesting Holders may make such request at any time after the earlier to
occur of (i) the initial Public Offering of the Company or (ii) the first
anniversary of the Effective Date. The Company shall (i) use its best efforts to
file, at the earliest practicable date, such Shelf Registration Statement under
the Securities Act and (ii) use its best efforts to have
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such Shelf Registration Statement thereafter declared effective by the
Commission at the earliest practicable date, but in any event not later than 90
days after the Shelf Request Date or, if a Shelf Registration Statement is
reviewed by the Staff of the Securities and Exchange Commission, not later than
120 days after the Shelf Request Date. Subject to Section 9(b), the Company
agrees to use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective under Rule 415 of the Securities Act until the
earlier to occur of (i) the second anniversary of the date such Shelf
Registration Statement initially is declared effective by the Commission (plus a
number of Business Days equal to the number of days, if any, that the Shelf
Registration Statement is not kept effective after the initial date of its
effectiveness and prior to the second anniversary thereof), (ii) the day after
the date on which all of the Registrable Common Stock covered by the Shelf
Registration Statement has been sold pursuant to the Shelf Registration
Statement or (iii) the first date on which there shall cease to be any
Registrable Common Stock. The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration or by the Securities Act or by any other
rules and regulations thereunder for shelf registration, and the Company agrees
to furnish to the Holders whose Registrable Common Stock is included in such
Shelf Registration Statement copies of any such supplement or amendment promptly
after its being issued or filed with the Commission.
(b) EFFECTIVE REGISTRATION STATEMENT. A Shelf Registration pursuant to
Section 2(a) hereof shall not be deemed to have been effected
(i) unless a registration statement with respect thereto has been
declared effective by the Commission and remains effective in
compliance with the provisions of the Securities Act and the laws of
any state or other jurisdiction applicable to the disposition of
Registrable Common Stock covered by such registration statement until
such time as all of such Registrable Common Stock have been disposed
of in accordance with such registration statement or there shall cease
to be any Registrable Common Stock (provided that such period need not
exceed the applicable period provided for in Section 2(a)), or
(ii) if, after it has become effective, such registration is
interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental or regulatory
agency or court for any reason other than a violation of applicable
law solely by any Holder and has not thereafter become effective.
3. SECURITIES ACT REGISTRATION ON REQUEST.
(a) REQUEST. At any time and from time to time after the expiration
(in accordance with Section 2(a) above) or cessation of effectiveness of the
Shelf Registration Statement filed by the Company pursuant to Section 2(a)
hereof (the "Initial Shelf") and the Company's obligations hereunder have not
terminated pursuant to and in accordance with the terms of Section 18 hereof,
one or more Holders (other than Management Holders, who shall have no request
rights under this Section 3(a)) (the "Initiating Holders") may make a written
request (the "Initiating Request") to the Company for the registration with the
Commission under the Securities Act of all or part of such Initiating Holders'
Registrable Common Stock; PROVIDED,
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HOWEVER, that such request shall be made by one or more Holders (other than
Management Holders) holding at least 10% of the outstanding shares of
Registrable Common Stock, which request shall specify the number of shares to be
disposed of by such Holders and the proposed plan of distribution therefor. Upon
the receipt of any Initiating Request for registration pursuant to this
paragraph, the Company promptly shall notify in writing all other Holders
(including the Management Holders) of the receipt of such request and will use
its reasonable best efforts to effect, at the earliest practicable date, such
registration under the Securities Act, including a Shelf Registration, if
applicable, of
(i) the Registrable Common Stock which the Company has been so
requested to register by such Initiating Holder or Holders, and
(ii) all other Registrable Common Stock which the Company has been
requested to register by any other Holders by written request given to the
Company within 30 days after the giving of written notice by the Company to
such other Holders of the Initiating Request,
all to the extent necessary to permit the disposition (in accordance with
Section 3(c) hereof) of the Registrable Common Stock so to be registered;
PROVIDED, THAT,
(A) the Company shall not be required to effect more than a total
of two registrations pursuant to this Section 3(a) for all Holders of
Registrable Common Stock,
(B) if the intended method of distribution is an underwritten
Public Offering, the Company shall not be required to effect such
registration pursuant to this Section 3(a) unless such underwriting
shall be conducted on a "firm commitment" basis,
(C) if the Company shall have previously effected a registration
pursuant to Section 2, this Section 3(a) or shall have previously
effected a registration of which notice has been given to the Holders
pursuant to Section 4 hereof, the Company shall not be required to
effect any registration pursuant to this Section 3(a) until a period
of 180 days shall have elapsed from the date on which the previous
such registration ceased to be effective,
(D) any Holder whose Registrable Common Stock was to be included
in any such registration pursuant to this Section 3(a), by written
notice to the Company, may withdraw such request and, on receipt of
such notice of the withdrawal of such request from Holders (excluding
Management Holders) holding a percentage of Registrable Common Stock,
such that the Holders (excluding Management Holders) that have not
elected to withdraw do not hold, in the aggregate, the requisite
percentage of the Registrable Common Stock to initiate a request under
this Section 3(a), the Company shall not effect such registration, and
(E) the Company shall not be required to effect any registration
to be effected pursuant to this Section 3(a) unless at least 10% of
the shares of
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Registrable Common Stock outstanding at the time of such request is to
be included in such registration.
(b) REGISTRATION OF OTHER SECURITIES. Whenever the Company shall
effect a registration pursuant to Section 3(a) hereof, no securities other than
(i) Registrable Common Stock and (ii) subject to Section 3(f), Common Stock to
be sold by the Company for its own account shall be included among the
securities covered by such registration unless the Selling Holders (excluding
Management Holders) holding not less than a majority of the shares of
Registrable Common Stock to be covered by such registration (excluding shares
held by Management Holders) shall have consented in writing to the inclusion of
such other securities.
(c) REGISTRATION STATEMENT FORM. Registrations under Section 3(a)
hereof shall be on such appropriate registration form prescribed by the
Commission under the Securities Act as shall be selected by the Company and as
shall permit the disposition of the Registrable Common Stock pursuant to an
underwritten offering unless the Selling Holders (excluding Management Holders)
holding at least a majority of the shares of Registrable Common Stock requested
to be included in such registration statement (excluding shares held by
Management Holders) determine otherwise, in which case pursuant to the method of
disposition determined by such Selling Holders. The Company agrees to include in
any such registration statement filed pursuant to Section 3(a) hereof all
information which the Selling Holders (excluding Management Holders) holding a
majority of shares of the Registrable Common Stock covered by such registration
statement (excluding shares held by Management Holders) effected pursuant
hereto, upon advice of counsel, shall reasonably request. The Company may, if
permitted by law, effect any registration requested under this Section 3 by the
filing of a registration statement on Form S-3 (or any successor or similar
short form registration statement).
(d) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to Section 3(a) hereof shall not be deemed to have been effected
(i) unless a registration statement with respect thereto has been
declared effective by the Commission and remains effective in compliance
with the provisions of the Securities Act and the laws of any state or
other jurisdiction applicable to the disposition of Registrable Common
Stock covered by such registration statement until such time as all of such
Registrable Common Stock have been disposed of in accordance with such
registration statement or there shall cease to be any Registrable Common
Stock, PROVIDED, THAT, except with respect to any Shelf Registration, such
period need not exceed 90 days, and, PROVIDED, FURTHER, that with respect
to any Shelf Registration, such period need not extend beyond the period
provided for in Section 3(g) hereof,
(ii) if, after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement
of the Commission or other governmental or regulatory agency or court for
any reason other than a violation of applicable law solely by any Selling
Holder (excluding Management Holders) and has not thereafter become
effective or
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(iii) if, in the case of an underwritten offering, the conditions
to closing specified in an underwriting agreement to which the Company is a
party are not satisfied or waived other than by reason of any breach or
failure by any Selling Holder (excluding Management Holders), or are not
otherwise waived.
The Holders of Registrable Common Stock to be included in a
registration statement (other than Management Holders) may at any time terminate
a request for registration made pursuant to Section 3(a) in accordance with
Section 3(a)(ii)(D).
(e) SELECTION OF UNDERWRITERS. The underwriter or underwriters of each
underwritten offering, if any, of the Registrable Common Stock to be registered
pursuant to Section 2(a) or Section 3(a) hereof shall be mutually selected by
the Selling Holders (excluding Management Holders) owning at least a majority of
the shares of Registrable Common Stock to be registered (excluding shares held
by Management Holders) and the Company.
(f) PRIORITY IN REQUESTED REGISTRATION. If a registration under
Section 3 hereof involves an underwritten Public Offering, and the managing
underwriter of such underwritten offering shall advise the Company in writing
(with a copy to each Selling Holder requesting that Registrable Common Stock be
included in such registration statement) that, in its opinion, the number of
shares of Registrable Common Stock requested to be included in such registration
exceeds the number of such securities that can be sold in such offering within a
price range stated to such managing underwriter by Selling Holders (excluding
Management Holders) owning at least a majority of the shares of Registrable
Common Stock requested to be included in such registration (excluding shares
held by Management Holders) to be acceptable to such Selling Holders, the
Company shall include in such registration, to the extent of the number and type
of securities which the Company is advised can be sold in such offering, all
Registrable Common Stock requested to be registered pursuant to Section 3(a)
hereof, PRO RATA among the Selling Holders requested to be included in such
registration on the basis of the number of shares of Registrable Common Stock
requested to be registered by all such Selling Holders, and no other shares of
Common Stock, whether to be sold by the Company or any other Person.
(g) SHELF REGISTRATIONS. If the first demand made pursuant to Section
3(a) hereof is for a Shelf Registration, the period for which such Shelf
Registration Statement must remain effective need not extend beyond one year
from the date on which such Shelf Registration Statement initially is declared
effective by the Commission and the period for which any subsequent Shelf
Registration Statement must remain effective need not extend beyond nine months
from the date on which such Shelf Registration Statement initially is declared
effective by the Commission (plus, in each case, a number of Business Days equal
to the number of days, if any, that the Shelf Registration Statement is not kept
effective after the initial date of its effectiveness and prior to such first
year or nine month, as the case may be, anniversary thereof).
4. PIGGYBACK REGISTRATION. If the Company, at any time when a Shelf
Registration Statement covering all outstanding shares of Registrable Common
Stock is not effective, proposes to register any of its securities under the
Securities Act by registration on any forms other than Form S-4 or S-8 (or any
successor or similar form(s)), whether or not pursuant to registration rights
granted to other holders of its securities and whether or not for sale for its
own account, it shall give prompt written notice to all of the Holders of its
intention to do so and of
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such Holders' rights (if any) under this Section 4, which notice, in any event,
shall be given at least 30 days prior to such proposed registration. Upon the
written request of any Holder receiving notice of such proposed registration
that is a holder of Registrable Common Stock (a "PIGGYBACK REQUESTING HOLDER")
made within 20 days after the receipt of any such notice (10 days if the Company
states in such written notice or gives telephonic notice to the relevant
securityholders, with written confirmation to follow promptly thereafter,
stating that (i) such registration will be on Form S-3 and (ii) such shorter
period of time is required because of a planned filing date), which request
shall specify the Registrable Common Stock intended to be disposed of by such
Piggyback Requesting Holder and the minimum offering price per share at which
the Holder is willing to sell its Registrable Common Stock, the Company shall,
subject to Section 7(b) hereof, effect the registration under the Securities Act
of all Registrable Common Stock which the Company has been so requested to
register by the Piggyback Requesting Holders thereof; provided, that,
(A) prior to the effective date of the registration statement
filed in connection with such registration, promptly following receipt
of notification by the Company from the managing underwriter (if an
underwritten offering) of the price at which such securities are to be
sold, the Company shall so advise each Piggyback Requesting Holder of
such price, and if such price is below the minimum price which any
Piggyback Requesting Holder shall have indicated to be acceptable to
such Piggyback Requesting Holder, such Piggyback Requesting Holder
shall then have the right irrevocably to withdraw its request to have
its Registrable Common Stock included in such registration statement,
by delivery of written notice of such withdrawal to the Company within
five business days of its being advised of such price, without
prejudice to the rights of any holder or holders of Registrable Common
Stock to include Registrable Common Stock in any future registration
(or registrations) pursuant to this Section 4 or to cause such
registration to be effected as a registration under Section 3(a)
hereof, as the case may be;
(B) if at any time after giving written notice of its intention
to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election,
give written notice of such determination to each Piggyback Requesting
Holder and (i) in the case of a determination not to register, shall
be relieved of its obligation to register any Registrable Common Stock
in connection with such registration (but not from any obligation of
the Company to pay the Expenses in connection therewith), without
prejudice, however, to the rights of any Holder to include Registrable
Common Stock in any future registration (or registrations) pursuant to
this Section 4 or to cause such registration to be effected as a
registration under Section 3(a) hereof, as the case may be, and (ii)
in the case of a determination to delay registering, shall be
permitted to delay registering any Registrable Common Stock, for the
same period as the delay in registering such other securities; and
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(C) if such registration was initiated by the Company for its own
account and involves an underwritten offering, each Piggyback
Requesting Holder shall sell its Registrable Common Stock on the same
terms and conditions as those that apply to the Company, and the
underwriters of each such piggyback underwritten offering shall be a
nationally recognized underwriter (or underwriters) selected by the
Company.
No registration effected under this Section 4 shall relieve the
Company of its obligation to effect any registration upon request under Section
3(a) hereof and no registration effected pursuant to this Section 4 shall be
deemed to have been effected pursuant to Section 3(a) hereof.
5. EXPENSES. The Company shall pay all Expenses in connection with any
registration initiated pursuant to Sections 2(a), 3(a) or 4 hereof, whether or
not such registration shall become effective and whether or not all or any
portion of the Registrable Common Stock originally requested to be included in
such registration are ultimately included in such registration.
6. REGISTRATION PROCEDURES. If and whenever the Company is required to
effect any registration under the Securities Act as provided in Sections 2(a),
3(a) and 4 hereof, the Company shall, as expeditiously as possible:
(a) prepare and file with the Commission (promptly and, in the
case of any registration pursuant to Section 3(a), in any event on or
before the date that is (i) 90 days after the end of the period within
which requests for registration may be given to the Company or (ii)
if, as of such ninetieth day, the Company does not have the audited
financial statements required to be included in the registration
statement, 30 days after the receipt by the Company from its
independent public accountants of such audited financial statements,
which the Company shall use its reasonable best efforts to obtain as
promptly as practicable) the requisite registration statement to
effect such registration and thereafter use its reasonable best
efforts to cause such registration statement to become and remain
effective; PROVIDED, HOWEVER, that the Company may discontinue any
registration of its securities that are not shares of Registrable
Common Stock (and, under the circumstances specified in Sections 4 and
9(b) hereof, its securities that are shares of Registrable Common
Stock) at any time prior to the effective date of the registration
statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of
all Registrable Common Stock covered by such registration statement
until such time as all of such Registrable Common Stock has been
disposed of in accordance with the method of disposition set forth in
such registration statement; PROVIDED, THAT, except with respect to
any Shelf Registration, such period need not extend beyond 90 days
after the effective date of the registration statement; and PROVIDED,
FURTHER, that with respect to the Initial Shelf, such period need not
extend beyond the applicable period provided for in Section
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2(a) hereof and, with respect to any Shelf Registration other than the
Initial Shelf, such period need not exceed the applicable period
provided for in Section 3(g) hereof;
(c) furnish to each seller of Registrable Common Stock covered by
such registration statement and each underwriter, if any, such number
of copies of such drafts and final conformed versions of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits and any documents
incorporated by reference), such number of copies of such drafts and
final versions of the prospectus contained in such registration
statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities
Act, and such other documents, as the sellers of a majority of the
Registrable Common Stock covered by such registration statement or any
underwriter may reasonably request in writing;
(d) use its reasonable best efforts (i) to register or qualify
all Registrable Common Stock and other securities, if any, covered by
such registration statement under such other securities or blue sky
laws of such states or other jurisdictions of the United States of
America as the sellers of Registrable Common Stock covered by such
registration statement shall reasonably request in writing, (ii) to
keep such registration or qualification in effect for so long as such
registration statement remains in effect and (iii) to take any other
action that may be necessary or reasonably advisable to enable such
sellers to consummate the disposition in such jurisdictions of the
securities to be sold by such sellers, except that the Company shall
not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this subsection (d) be obligated to be
so qualified, to subject itself to taxation in such jurisdiction or to
consent to general service of process in any such jurisdiction;
(e) use its reasonable best efforts to cause all Registrable
Common Stock and other securities, if any, covered by such
registration statement to be registered with or approved by such other
federal or state governmental agencies or authorities as may be
necessary in the opinion of counsel to the Company and counsel to the
seller or sellers of Registrable Common Stock to enable the seller or
sellers thereof to consummate the disposition of such Registrable
Common Stock;
(f) use its reasonable best efforts to obtain and, if obtained,
furnish to each seller of Registrable Common Stock, and each such
seller's underwriters, if any, a signed
(i) opinion of counsel for the Company, dated the effective
date of such registration statement (and, if such registration
involves an underwritten offering, dated the date of the closing under
the underwriting agreement and addressed to the underwriters),
reasonably satisfactory (based on the customary form and substance of
opinions of issuers' counsel customarily given in such an offering) in
form and substance to such seller, and
11
(ii) "cold comfort" letter, dated the effective date of such
registration statement (and, if such registration involves an
underwritten offering, dated the date of the closing under the
underwriting agreement and addressed to the underwriters) and signed
by the independent public accountants who have certified the Company's
financial statements included or incorporated by reference in such
registration statement, reasonably satisfactory (based on the
customary form and substance of "cold comfort" letters of issuers'
independent public accountant customarily given in such an offering)
in form and substance to such seller,
in each case, covering substantially the same matters with respect to
such registration statement (and the prospectus included therein) and,
in the case of the accountants' comfort letter, with respect to events
subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' comfort letters delivered to underwriters in underwritten
Public Offerings of securities;
(g) notify each seller of Registrable Common Stock and other
securities covered by such registration statement, if any, at any time
when a prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made, and, at the written request of any such seller of
Registrable Common Stock, promptly prepare and furnish to it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus, as supplemented or
amended, shall not include 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 in the light
of the circumstances under which they were made;
(h) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a registration statement
relating to the Registrable Common Stock at the earliest possible
moment;
(i) otherwise comply with all applicable rules and regulations of
the Commission and any other governmental agency or authority having
jurisdiction over the offering, and make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than
eighteen months, beginning with the first full calendar month after
the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder, and furnish to
each seller of Registrable Common Stock and to the managing
underwriter, if any, at least ten days prior to the filing thereof a
copy of any amendment or supplement to such registration statement or
prospectus;
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(j) use its reasonable best efforts to cause all Registrable
Common Stock covered by a Registration Statement (i) to be listed on a
national securities exchange on which similar securities issued by the
Company are then listed, if the listing of such Registrable Common
Stock is then permitted under the rules of such exchange, or (ii) if
the Company is not required pursuant to clause (i) above to list
Registrable Common Stock on a national securities exchange, use its
reasonable best efforts to secure designation of all Registrable
Common Stock as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 of the Commission or, failing that, to secure
NASDAQ authorization for the Registrable Common Stock and, without
limiting the generality of the foregoing, to arrange for at least two
market makers to register with the NASD as such with respect to such
Registrable Common Stock;
(k) provide a transfer agent and registrar for the Registrable
Common Stock covered by a Registration Statement no later than the
effective date thereof; and
(l) enter into such agreements (including an underwriting
agreement in customary form) and take such other actions as the
Holders holding a majority of the shares of Registrable Common Stock
covered by such registration statement shall reasonably request in
order to expedite or facilitate the disposition of such Registrable
Common Stock, including customary indemnification.
(m) if requested by the managing underwriter(s) or the Holders
holding a majority of the shares of Registrable Common Stock being
sold in connection with an underwritten offering, promptly incorporate
in a prospectus supplement or post-effective amendment such
information as the managing underwriter(s) and the Holders of a
majority of the Registrable Common Stock being sold agree should be
included therein relating to the plan of distribution with respect to
such Registrable Common Stock, including without limitation,
information with respect to the number of shares of Registrable Common
Stock being sold to such underwriters, the purchase price being paid
therefore by such underwriters and with respect to any other terms of
the underwritten offering of the Registrable Common Stock to be sold
in such offering; and make all required filings of such prospectus
supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such prospectus supplement or
post-effective amendment;
(n) if requested by the Selling Holders (excluding Management
Holders) holding a majority of the shares of Registrable Common Stock
being sold (excluding shares held by Management Holders), cooperate
with the Selling Holders of Registrable Common Stock and the managing
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Common Stock to be
sold and not bearing any restrictive legends; and enable such
Registrable Common Stock to be in such share amounts and registered in
such names as the managing underwriter(s) or, if none, the Selling
Holders holding a majority of the shares of Registrable Common Stock
being sold, may request at least three business days prior to any sale
of Registrable Common Stock to the underwriters;
13
As a condition to the obligations of the Company to complete any
registration pursuant to this Agreement with respect to the Registrable Common
Stock of a Holder, such Holder must furnish to the Company in writing such
information regarding itself, the Registrable Common Stock held by it and the
intended methods of disposition of the Registrable Common Stock held by it as is
necessary to effect the registration of such Holders' Registrable Common Stock
and is requested in writing by the Company. At least thirty days prior to the
first anticipated filing date of a Registration Statement for any registration
under this Agreement, the Company will notify in writing each Holder of the
information referred to in the preceding sentence which the Company is
requesting from that Holder whether or not such Holder has elected to have any
of its Registrable Common Stock included in the Registration Statement. If,
within ten days prior to the anticipated filing date, the Company has not
received the requested information from a Holder, then the Company may file the
Registration Statement without including Registrable Common Stock of that
Holder.
Each Holder agrees that as of the date that a final prospectus is made
available to it for distribution to prospective purchasers of Registrable Common
Stock it shall cease to distribute copies of any preliminary prospectus prepared
in connection with the offer and sale of such Registrable Common Stock. Each
Holder further agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in subsection (g) of this Section
6, such Holder shall forthwith discontinue such Holder's disposition of
Registrable Common Stock pursuant to the registration statement relating to such
Registrable Common Stock until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subsection (g) of this
Section 6 and, if so directed by the Company, shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such Holder's possession of the prospectus relating to such Registrable Common
Stock current at the time of receipt of such notice. If any event of the kind
described in subsection (g) of this Section 6 occurs and such event is the fault
solely of a Holder (or Holders), such Holder (or Holders) shall pay all Expenses
attributable to the preparation, filing and delivery of any supplemented or
amended prospectus contemplated by subsection (g) of this Section 6.
7. UNDERWRITTEN OFFERINGS.
(a) REQUESTED UNDERWRITTEN OFFERINGS. If requested by the underwriters
in connection with a request for a registration under Section 3 hereof, the
Company shall enter into a firm commitment underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the Company and a majority of the Selling Holders whose
Registered Common Stock is included in such registration, and the underwriters
and to contain such representations and warranties by the Company and the
Selling Holders and such other terms as are customary in agreements of that
type, including, without limitation, indemnification and contribution to the
effect and to the extent provided in Section 10 hereof.
(b) PIGGYBACK UNDERWRITTEN OFFERINGS: PRIORITY.
(i) If the Company proposes to register any of its securities
under the Securities Act for its own account as contemplated by Section 4
hereof and such securities are to be distributed by or through one or more
underwriters, and if the
14
managing underwriter of such underwritten offering shall advise the Company
in writing (with a copy to the Piggyback Requesting Holders) that if all
the Registrable Common Stock requested to be included in such registration
were so included, in its opinion, the number and type of securities
proposed to be included in such registration would exceed the number and
type of securities which could be sold in such offering within a price
range acceptable to the Company (such writing to state the basis of such
opinion and the approximate number and type of securities which may be
included in such offering without such effect), then the Company shall
include in such registration pursuant to Section 4, to the extent of the
number and type of securities which the Company is so advised can be sold
in such offering, (i) first, securities that the Company proposes to issue
and sell for its own account, (ii) second, Registrable Common Stock
requested to be registered by Piggyback Requesting Holders pursuant to
Section 4 hereof, PRO RATA among the Piggyback Requesting Holders on the
basis of the number of shares of Registrable Common Stock requested to be
registered by all such Piggyback Requesting Holders and (iii) third, other
securities, if any.
(ii) In the case of any other registration contemplated by
Section 4 involving an underwriting Public Offering, if the managing
underwriter of such underwritten offering shall advise the Company in
writing (with a copy to the Piggyback Requesting Holders) that if all
Registrable Common Stock requested to be included in such registration were
so included, in its opinion, the number and type of securities proposed to
be included in such registration would exceed the number and type of
securities which would be sold in such offering within a price range stated
to such managing underwriter by Selling Holders owning at least a majority
of the shares of Registrable Common Stock requested to be included in such
registration to be acceptable to such Selling Holders (such writing to
state the basis of such opinion and the approximate number and type of
securities which may be included in such offering without such effect),
then the Company shall include in such registration pursuant to Section 4,
to the extent of the number and type of securities which the Company is so
advised can be sold in such offering, (i) first, Registrable Common Stock
requested to be registered by Piggyback Requesting Holders pursuant to
Section 4 hereof, PRO RATA among the Piggyback Requesting Holders on the
basis of the number of shares of Registrable Common Stock requested to be
registered by all such Piggyback Requesting Holders, (ii) securities that
the Company proposed to issue and sell for its own account and (iii) third,
other securities.
Any Holder may withdraw its request to have all or any portion of its
Registrable Common Stock included in any such offering by notice to the Company
within 10 Business Days after receipt of a copy of a notice from the managing
underwriter pursuant to this Section 7(b).
(c) HOLDERS OF REGISTRABLE COMMON STOCK TO BE PARTIES TO UNDERWRITING
AGREEMENT. The holders of Registrable Common Stock to be distributed by
underwriters in an underwritten offering contemplated by subsections (a) or (b)
of this Section 7 shall be parties to the underwriting agreement between the
Company and such underwriters and any such Holder, at its option, may reasonably
require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holders and that
any or all of the conditions
15
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such Holders. No such
Holder shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Holder, such Holder's Registrable Common
Stock and such Holder's intended method of distribution.
(d) HOLDBACK AGREEMENTS. Each Holder agrees, unless otherwise agreed
to by the managing underwriter for any underwritten offering pursuant to this
Agreement, not to effect any sale or distribution of any equity securities of
the Company or securities convertible into or exchangeable or exercisable for
equity securities of the Company, including any sale under Rule 144 under the
Securities Act, during the 10 days prior to the date on which an underwritten
registration of Registrable Common Stock pursuant to Section 2(a), 3 or 4 hereof
has become effective and until 180 days after the effective date of such
underwritten registration, except as part of such underwritten registration or
to the extent that such Holder is prohibited by applicable law from agreeing to
withhold securities from sale or is acting in its capacity as a fiduciary or an
investment adviser. Without limiting the scope of the term "fiduciary," a holder
shall be deemed to be acting as a fiduciary or an investment adviser if its
actions or the securities proposed to be sold are subject to the Employee
Retirement Income Security Act of 1974, as amended, the Investment Company Act
of 1940, as amended, or the Investment Advisers Act of 1940, as amended, or if
such securities are held in a separate account under applicable insurance law or
regulation.
The Company agrees (i) not to effect any Public Offering or
distribution of any equity securities of the Company, or securities convertible
into or exchangeable or exercisable for equity securities of the Company, during
the 10 days prior to the date on which any underwritten registration pursuant to
Section 2(a), 3 or 4 hereof has become effective and until 180 days after the
effective date of such underwritten registration, except as part of such
underwritten registration, and (ii) to cause each holder of any equity
securities, or securities convertible into or exchangeable or exercisable for
equity securities, in each case, acquired from the Company at any time on or
after the date of this Agreement (other than in a Public Offering), to agree not
to effect any Public Offering or distribution of such securities, during such
period.
8. PREPARATION: REASONABLE INVESTIGATION.
(a) REGISTRATION STATEMENTS. In connection with the preparation and
filing of each registration statement under the Securities Act pursuant to this
Agreement, the Company shall (i) give representatives (designated to the Company
in writing) of each Holder or group of Holders holding at least 20% of the
shares of Registrable Common Stock registered under such registration statement,
the underwriters, if any, and one firm of counsel, one firm of accountants and
one firm of other agents retained on behalf of all underwriters and one firm of
counsel, one firm of accountants and one firm of other agents retained on behalf
of Holders (excluding Management Holders) holding a majority of the shares of
Registrable Common Stock covered by such registration statement (excluding
shares held by Management Holders), the reasonable opportunity to participate in
the preparation of such registration statement, each prospectus included therein
or filed with the Commission, and each amendment thereof or supplement thereto,
(ii) upon reasonable advance notice to the Company, give each of them such
reasonable access to all financial and other records, corporate documents and
properties of the Company and
16
its subsidiaries, as shall be necessary, in the reasonable opinion of such
Holders' and such underwriters' counsel, to conduct a reasonable due
diligence investigation for purposes of the Securities Act, and (iii) upon
reasonable advance notice to the Company, provide such reasonable
opportunities to discuss the business of the Company with its officers,
directors, employees and the independent public accountants who have
certified its financial statements as shall be necessary, in the reasonable
opinion of such Holders' and such underwriters' counsel, to conduct a
reasonable due diligence investigation for purposes of the Securities Act.
(b) CONFIDENTIALITY. Each Holder of Registrable Common Stock shall
maintain the confidentiality of any confidential information received from or
otherwise made available by the Company to such Holder of Registrable Common
Stock. Information that (i) is or becomes available to a Holder of Registrable
Common Stock from a public source other than as a result of a disclosure by such
Holder or any of its Affiliates, (ii) is disclosed to a Holder of Registrable
Common Stock by a third-party source who the Holder of Registrable Common Stock
reasonably believes is not bound by an obligation of confidentiality to the
Company or (iii) is or becomes required to be disclosed by a Holder of
Registrable Common Stock by law, including by court order, shall not be deemed
to be confidential information for purposes of this Agreement. The Holders of
Registrable Common Stock shall not grant access, and the Company shall not be
required to grant access, to information under this Section 8 to any Person who
will not agree to maintain the confidentiality (to the same extent a Holder is
required to maintain confidentiality) of any confidential information received
from or otherwise made available to it by the Company or the holders of
Registrable Common Stock under this Agreement.
9. POSTPONEMENTS.
(a) If the Company shall fail to file any registration statement to
be filed pursuant to a request for registration under Section 3(a) hereof,
the Holders requesting such registration shall have the right to withdraw the
request for registration if such withdrawal shall be made by Holders of
Common Stock (excluding Management Holders) holding an amount of Common Stock
such that the Holders (excluding Management Holders) that have not elected to
withdraw do not hold the requisite percentage of shares of Common Stock to
initiate a request under Section 3. Any such withdrawal shall be made by
giving written notice to the Company within 20 days after, in the case of a
request pursuant to Section 3(a) hereof, the date on which a registration
statement would otherwise have been required to have been filed with the
Commission under clause (i) of Section 6 (a) hereof (I.E., 20 days after the
date that is 90 days after the conclusion of the period within which requests
for registration may be given to the Company, or, if, as of such ninetieth
day, the Company does not have the audited financial statements required to
be included in the registration statement, 30 days after the receipt by the
Company from its independent public accountants of such audited financial
statements). In the event of such withdrawal, the request for registration
shall not be counted for purposes of determining the number of registrations
to which Holders are entitled pursuant to Section 3 hereof. The Company shall
pay all Expenses incurred in connection with a request for registration
withdrawn pursuant to this paragraph.
(b) The Company shall not be obligated to file any registration
statement, or file any amendment or supplement to any registration statement,
and may suspend any Selling Holder's rights to make sales pursuant to any
effective registration statement, at any time (but
17
not to exceed one time in any twelve-month period) when the Company, in the good
faith judgment of its Board of Directors, reasonably believes that the filing
thereof at the time requested, or the offering of securities pursuant thereto,
would adversely affect a pending or proposed Public Offering of the Company's
securities, a material financing, or a material acquisition, merger,
recapitalization, consolidation, reorganization or similar transaction, or
negotiations, discussions or pending proposals with respect thereto. The filing
of a registration statement, or any amendment or supplement thereto, by the
Company cannot be deferred, and the Selling Holders' rights to make sales
pursuant to an effective registration statement cannot be suspended, pursuant to
the provisions of the preceding sentence for more than ten days after the
abandonment or consummation of any of the foregoing proposals or transactions or
for more than 120 days after the date of the Board's determination referenced in
the preceding sentence. If the Company suspends the sellers' rights to make
sales pursuant hereto, the applicable registration period shall be extended by
the number of days of such suspension.
10. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In connection with any
registration statement filed by the Company pursuant to Section 2(a), 3(a) or 4
hereof, to the fullest extent permitted by law the Company shall, and hereby
agrees to, indemnify and hold harmless, each Holder and seller of any
Registrable Common Stock covered by such registration statement and each other
Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls (within the meaning of
the Exchange Act) such Holder or seller or any such underwriter, and their
respective stockholders, directors, officers, employees, partners, agents and
Affiliates (each, a "Company Indemnitee" for purposes of this Section 10(a)),
against any losses, claims, damages, liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof and whether or not such
Indemnified Party is a party thereto), joint or several, and expenses,
including, without limitation, the reasonable fees, disbursements and other
charges of legal counsel and reasonable costs of investigation, to which such
Company Indemnitee may become subject under the Securities Act or otherwise
(collectively, a "Loss" or "Losses"), insofar as such Losses arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered or otherwise offered or sold under the Securities Act or otherwise,
any preliminary prospectus, final prospectus or summary prospectus related
thereto, or any amendment or supplement thereto (collectively, "Offering
Documents"), or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
in the light of the circumstances in which they were made not misleading, or any
violation by the Company of any federal or state law, rule or regulation
applicable to the Company and relating to action required of or inaction by the
Company in connection with any such registration; PROVIDED, that, the Company
shall not be liable in any such case to the extent that any such Loss arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in such Offering Documents in reliance upon and in
conformity with information furnished to the Company in a writing duly executed
by such Company Indemnitee specifically stating that it is expressly for use
therein; and provided, further, that the Company shall not be liable to any
Person who participates as an underwriter in the offering or sale of Registrable
Common Stock or any other person, if any, who controls (within the meaning of
the Exchange Act) such underwriter, in any such case to the extent that any such
Loss arises out of such Person's failure to send or give a
18
copy of the final prospectus (including any documents incorporated by reference
therein), as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Common Stock to such Person if such statement or omission was corrected in such
final prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Company Indemnitee
and shall survive the transfer of such securities by such Company Indemnitee.
(b) INDEMNIFICATION BY THE OFFERORS AND SELLERS. In connection with
any registration statement filed by the Company pursuant to Section 2(a), 3(a)
or 4 hereof in which a Holder has registered for sale Registrable Common Stock,
each such Holder or seller of Registrable Common Stock shall, and hereby agrees
to, indemnify and hold harmless to the fullest extent permitted by law the
Company and each of its directors, officers, employees, agents, partners,
stockholders, Affiliates and each other Person, if any, who controls (within the
meaning of the Exchange Act) the Company and each other seller and such seller's
employees, directors, officers, stockholders, partners, agents and Affiliates
(each, a "HOLDER INDEMNITEE" for purposes of this Section 10(b)), against all
Losses insofar as such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Offering Documents (or any document incorporated by reference therein) or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the light of
circumstances in which they were made not misleading, if such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with information furnished to the Company in a writing
duly executed by such Holder or seller of Registrable Common Stock specifically
stating that it is expressly for use therein; PROVIDED, HOWEVER, that the
liability of such indemnifying party under this Section 10(b) shall be limited
to the amount of the net proceeds received by such indemnifying party in the
sale of Registrable Common Stock giving rise to such liability. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Holder Indemnitee and shall survive the transfer of such
securities by such indemnifying party.
(c) NOTICES OF LOSSES, ETC. Promptly after receipt by an indemnified
party of written notice of the commencement of any action or proceeding
involving a Loss referred to in the preceding subsections of this Section 10,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; PROVIDED, HOWEVER, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding subsections of this Section 10, except to the
extent that the indemnifying party is materially and actually prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, the indemnifying party shall be entitled to participate in
and, unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such Loss, to assume and control the defense thereof, in each case at its own
expense, jointly with any other indemnifying party similarly notified, to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after its assumption of the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation,
19
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties arises in respect of such
claim after the assumption of the defense thereof. No indemnifying party shall
be liable for any settlement of any such action or proceeding effected without
its written consent, which shall not be unreasonably withheld. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such Loss or
which requires action on the part of such indemnified party or otherwise
subjects the indemnified party to any obligation or restriction to which it
would not otherwise be subject.
(d) CONTRIBUTION. If the indemnification provided for in this Section
10 shall for any reason be unavailable to an indemnified party under subsection
(a) or (b) of this Section 10 in respect of any Loss, then, in lieu of the
amount paid or payable under subsection (a) or (b) of this Section 10, the
indemnified party and the indemnifying party under subsection (a) or (b) of this
Section 10 shall contribute to the aggregate Losses (including legal or other
expenses reasonably incurred in connection with investigating the same) (i) in
such proportion as is appropriate to reflect the relative fault of the Company
and the prospective sellers of Registrable Common Stock covered by the
registration statement which resulted in such Loss or action in respect thereof,
with respect to the statements, omissions or action which resulted in such Loss
or action in respect thereof, as well as any other relevant equitable
considerations, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, on the one hand, and such
prospective sellers, on the other hand, from their sale of Registrable Common
Stock; PROVIDED, that, for purposes of this clause (ii), the relative benefits
received by the prospective sellers shall be deemed not to exceed the amount
received by such sellers. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The obligations, if any, of the selling holders of
Registrable Common Stock to contribute as provided in this subsection (d) are
several in proportion to the relative value of their respective Registrable
Common Stock covered by such registration statement and not joint. In addition,
no Person shall be obligated to contribute hereunder any amounts in payment for
any settlement of any action or Loss effected without such Person's consent.
(e) OTHER INDEMNIFICATION. The Company and, in connection with any
registration statement filed by the Company pursuant to Section 2(a), each
Holder, shall, and, in connection with any registration statement filed by the
Company pursuant to Section 3(a) or 4, each Holder who has registered for sale
Registrable Common Stock, shall, with respect to any required registration or
other qualification of securities under any Federal or state law or regulation
of any governmental authority other than the Securities Act, indemnify Holder
Indemnitees and Company Indemnitees, respectively, against Losses, or, to the
extent that indemnification shall be unavailable to a Holder Indemnitee or
Company Indemnitee, contribute to the aggregate Losses of such Holder Indemnitee
or Company Indemnitee in a manner similar to that specified in the preceding
subsections of this Section 10 (with appropriate modifications).
20
(f) INDEMNIFICATION PAYMENTS. The indemnification and contribution
required by this Section 10 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when any Loss
is incurred and is due and payable.
11. REGISTRATION RIGHTS TO OTHERS.
If the Company shall at any time hereafter provide to any holder of
any securities of the Company rights with respect to the registration of such
securities under the Securities Act or the Exchange Act, such rights shall not
be in conflict with or adversely affect any of the rights provided to the
holders of Registrable Common Stock in, or conflict (in a manner that adversely
affects holders of Registrable Common Stock) with any other provisions included
in, this Agreement.
12. ADJUSTMENTS AFFECTING REGISTRABLE COMMON STOCK.
Without the written consent of Holders (excluding Management Holders)
of a majority of the outstanding shares of Registrable Common Stock (excluding
shares held by Management Holders), the Company shall not effect or permit to
occur any combination, subdivision or reclassification of Registrable Common
Stock that would materially adversely affect the ability of the Holders to
include such Registrable Common Stock in any registration of its securities
under the Securities Act contemplated by this Agreement or the marketability of
such Registrable Common Stock under any such registration or other offering.
13. RULE 144 AND RULE 144A.
The Company shall take all actions reasonably necessary to enable
Holders to sell Registrable Common Stock without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, (b)
Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or (c) any similar rules or regulations hereafter adopted by the
Commission, including, without limiting the generality of the foregoing, filing
on a timely basis all reports required to be filed under the Exchange Act. Upon
the written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
14. AMENDMENTS AND WAIVERS.
Any provision of this Agreement may be amended, modified or waived if,
but only if, the written consent to such amendment, modification or waiver has
been obtained from (i) except as provided in clause (ii) below, the Holder or
Holders (excluding Management Holders) of at least a majority of the shares of
Registrable Common Stock (excluding shares held by Management Holders) affected
by such amendment, modification or waiver and (ii) in the case of any amendment,
modification or waiver of any provision of Section 5 or 9 hereof or this Section
14 or any provisions as to the number of requests for registration to which
holders of Registrable Common Stock are entitled under Section 3 or 4 hereof, or
any amendment, modification or waiver which adversely affects any right and/or
obligation under this Agreement of any Holder, the written consent of each
Holder so affected.
21
15. NOMINEES FOR BENEFICIAL OWNERS.
In the event that any Registrable Common Stock is held by a nominee
for the beneficial owner thereof, the beneficial owner thereof may, at its
election in writing delivered to the Company, be treated as the Holder of such
Registrable Common Stock for purposes of any request or other action by any
Holder or Holders pursuant to this Agreement or any determination of the number
or percentage of shares of Registrable Common Stock held by any Holder or
Holders contemplated by this Agreement. If the beneficial owner of any
Registrable Common Stock so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Common Stock.
16. ASSIGNMENT.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns. Any Holder may assign to any permitted Transferee (as
permitted under applicable law) of its Registrable Common Stock its rights and
obligations under this Agreement, provided that such Transferee shall agree in
writing with the parties hereto prior to the assignment to be bound by this
Agreement as if it were an original party hereto, whereupon such assignee shall
for all purposes be deemed to be a Holder (and, in the case of a Transferee of a
Management Holder or a Transferee thereof, a Management Holder) under this
Agreement. Except as provided above or otherwise permitted by this Agreement,
neither this Agreement nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by any Holder without the
prior written consent of the other parties hereto. The Company may not assign
this Agreement or any right, remedy, obligation or liability arising hereunder
or by reason hereof.
17. CALCULATION OF PERCENTAGE OR NUMBER OF SHARES OF REGISTRABLE COMMON
STOCK.
For purposes of this Agreement, all references to a percentage or
number of shares of Registrable Common Stock or Common Stock shall be calculated
based upon the number of shares of Registrable Common Stock or Common Stock, as
the case may be, outstanding at the time such calculation is made and shall
exclude any Registrable Common Stock or Common Stock, as the case may be, owned
by the Company or any subsidiary of the Company. For the purposes of calculating
any percentage or number of shares of Registrable Common Stock or Common Stock
as contemplated by the previous sentence, the terms "Holder", "Initiating
Holder", "Management Holder" and "Original Holder" shall include all Affiliates
thereof owning any shares of Registrable Common Stock or Common Stock.
18. TERMINATION OF REGISTRATION RIGHTS.
The Company's obligations under Sections 2(a), 3(a) and 4 hereof to
register Common Stock for sale under the Securities Act shall terminate on the
earlier of (i) the first date on which no shares of Registrable Common Stock are
outstanding or (ii) the first date on which less than 10% of the aggregate
number of shares of Common Stock issued pursuant to the Plan are held by the
Original Holders or their Affiliates.
19. MISCELLANEOUS.
(a) FURTHER ASSURANCES. Each of the parties hereto shall execute such
documents and other papers and perform such further acts as may be reasonably
required or
22
advisable to carry out the provisions of this Agreement and the transactions
contemplated hereby.
(b) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
any provisions hereof.
(c) CONFLICTING INSTRUCTIONS. A person or entity is deemed to be a
holder of Registrable Common Stock whenever such person or entity owns of record
such Registrable Common Stock. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Common Stock, the Company will act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Common Stock.
(d) REMEDIES. Each Holder, in addition to being entitled to exercise
all rights 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 the provisions of this Agreement and the Company
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(e) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding of the parties hereto in respect of the subject matter
contained herein, and there are no restrictions, promises, representations,
warranties, covenants, or undertakings with respect to the subject matter
hereof, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the parties
hereto with respect to the subject matter hereof.
(f) NOTICES. Any notices or other communications to be given hereunder
by any party to another party shall be in writing, shall be delivered
personally, by telecopy, by certified or registered mail, postage prepaid,
return receipt requested, or by Federal Express or other comparable delivery
service, to the address of the party set forth on Schedule B hereto or to such
other address as the party to whom notice is to be given may provide in a
written notice to the other parties hereto, a copy of which shall be on file
with the Secretary of the Company. Notice shall be effective when delivered if
given personally, when receipt is acknowledged if telecopied, three days after
mailing if given by registered or certified mail as described above, and one
business day after deposit if given by Federal Express or comparable delivery
service.
(g) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of
New York.
(h) SEVERABILITY. Notwithstanding any provision of this Agreement,
neither the Company nor any other party hereto shall be required to take any
action which would be in violation of any applicable Federal or state securities
law. The invalidity or unenforceability of any provision of this Agreement in
any jurisdiction shall not affect the validity, legality or enforceability of
any other provision of this Agreement in such jurisdiction or the validity,
legality or enforceability of this Agreement, including any such provision, in
any other
23
jurisdiction, it being intended that all rights and obligations of the parties
hereunder shall be enforceable to the fullest extent permitted by law.
(i) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
DADE BEHRING HOLDINGS, INC.
By: /s/ ββββββ βββββββ
---------------------------
Name: ββββββ βββββββ
Title: Secretary
HOLDERS:
By: /s/ ββββ β. βββββββββ
-------------------------------
Name: ββββ β. βββββββββ
Title: Senior Managing Director
Name of Institution:
HOLDERS:
By: /s/ βββββ ββββββββ
-------------------------------
Name: βββββ ββββββββ
Title: President of the General
Partner
Name of Institution: Bedford Falls
Investors, L.P.
HOLDERS:
By: /s/ βββββ β. βββββββ
---------------------------------
Name: βββββ β. βββββββ
Title: Director
Name of Institution: Black Diamond
Offshore Ltd.
HOLDERS:
By: /s/ ββββββ β. ββββββ
---------------------------------
Name: ββββββ β. ββββββ
Title: Managing Director
Name of Institution: BNP Paribas
25
HOLDERS:
By: /s/ βββββββ β. ββββββ
---------------------------------
Name: βββββββ β. ββββββ
Title: Vice President
Name of Institution: Continental
Casualty Company
HOLDERS:
By: /s/ βββββ β. ββββββββ
---------------------------------
Name: βββββ β. ββββββββ
Title: Vice President
Name of Institution: Deutsche
Bank Trust Company Americas
HOLDERS: βββββββββ & Co., L.P.
By: βββββββββ Partners, L.P.
By: βββββββββ Partners Inc.
By: /s/ βββββ ββββββ
---------------------------------
Name: βββββ ββββββ
Title: V.P.
Name of Institution: βββββββββ &
Co., L.P.
HOLDERS:
By: /s/ βββββ β. βββββββ
---------------------------------
Name: βββββ β. βββββββ
Title: Director
Name of Institution: Double Black
Diamond Offshore LOC.
HOLDERS:
By: /s/ βββββ β. βββββ
---------------------------------
Name: βββββ β. βββββ
Title: General Partner
Name of Institution: Fernwood
Associates L.P.
26
HOLDERS:
By: /s/ βββββ β. ββββββββ
-----------------------------------
Name: βββββ β. ββββββββ
Title: Authorized Officer
Name of Institution:
Fleet National Bank
HOLDERS:
By: /s/ βββββ βββββββββ
-----------------------------------
Name: βββββ βββββββββ
Title: Authorized Signatory
Name of Institution:
βββββββ βββββ Credit
Partners L.P.
HOLDERS:
By: /s/ βββββ ββββββ
-----------------------------------
Name: βββββ ββββββ
Title: Authorized Signatory
Name of Institution:
Guggenheim Portfolio Company
VII, LLC
RE: Common Stock
Registration Rights
Agreement
HOLDERS: Haleyan Restructuring Fund, L.P.
By: [ILLEGIBLE] Management [ILLEGIBLE]
Managing General Partner
By: /s/ βββββ βββββββββββ
-----------------------------------
Name: βββββ βββββββββββ
Title: Chief Financial Officer
Name of Institution:
27
HOLDERS:
By: /s/ ββββββββ β. βββββ
-----------------------------------
Name: ββββββββ β. βββββ
Title: Managing Director
Name of Institution:
ING Capital LLC acting as
agent for Midden Bank,
Curacao N.V.
HOLDERS: Loeb Partners Corporation
By: /s/ ββββββ β. ββββ
-----------------------------------
Name: ββββββ β. ββββ
Title: Managing Director
Name of Institution:
Loeb Partners Corp
HOLDERS:
By: /s/ ββββββ β. ββββββββ
-----------------------------------
Name: ββββββ β. ββββββββ
Title: Executive Director
Name of Institution:
ββββββ βββββββ Prime Income
Trust
28
HOLDERS:
By: OZ Management, LLC
As Investment Manager
By: /s/ ββββββ β. OCH
-----------------------------------
Name: ββββββ β. Och
Title: Senior Managing Member
Name of Institution:
OZ MASTER FUND, LTD.
HOLDERS:
By: OZF Management, LP
as Investment Manager
By: OZF Management, LLC
General Partner
By: /s/ ββββββ β. OCH
-----------------------------------
Name: ββββββ β. Och
Title: Senior Managing Member
Name of Institution:
OZF CREDIT OPPORTUNITIES
MASTER FUND, LTD.
By: /s/ βββββββ β. βββββββββ
-----------------------------------
Name: βββββββ β. βββββββββ
Title: Senior Managing Member
Name of Institution:
OZF CREDIT OPPORTUNITIES
MASTER FUND, LTD.
29
HOLDERS:
By: OZF Management, LP
as Investment Manager
By: OZF Management, LLC
General Partner
By: /s/ ββββββ β. OCH
-----------------------------------
Name: ββββββ β. Och
Title: Senior Managing Member
Name of Institution:
OZF CREDIT OPPORTUNITIES
MASTER FUND II, LTD.
By: /s/ βββββββ β. βββββββββ
-----------------------------------
Name: βββββββ β. βββββββββ
Title: Senior Managing Member
Name of Institution:
OZF CREDIT OPPORTUNITIES
MASTER FUND II, LTD.
HOLDERS:
By: /s/ ββββ ββββββββ
-----------------------------------
Name: ββββ ββββββββ
Title: Director of Operations
Name of Institution:
β. ββββββββββ Asset Mgmt LLC
as Investment Advisor
HOLDERS:
By: /s/ ββββββ βββ
-----------------------------------
Name: ββββββ βββ
Title: CFO-Para Advisors Inc.
(Attorney-in-Fact)
Name of Institution:
Para International Fund LTD.
30
HOLDERS:
By: /s/ ββββββ βββ
-----------------------------------
Name: ββββββ βββ
Title: CFO-Bosphorous Partners LLC
(General Partner)
Name of Institution: Para
Investors L.P.
HOLDERS:
By: /s/ ββββββ βββ
-----------------------------------
Name: ββββββ βββ
Title: CFO-Bosphorous Partners LLC
(General Partner)
Name of Institution: Para
Investors L.P.
HOLDERS:
By: /s/ βββββ ββββββ
-----------------------------------
Name: βββββ ββββββ
Title: Authorized Signatory
Name of Institution: S.A.C. Capital
Associates, L
HOLDERS:
By: /s/ βββββ ββββββ
-----------------------------------
Name: βββββ ββββββ
Title: President
Name of Institution: βββββββ Capital
Management, ββ ββ
HOLDERS:
By: /s/ βββββ ββββββ
-----------------------------------
Name: βββββ ββββββ
Title: M.M.
Name of Institution: Scoggin
International Fund, Ltd.
HOLDERS:
By: /s/ βββββββ ββββββ
-----------------------------------
Name: βββββββ ββββββ
Title: Managing Partner
Name of Institution: Seneca Capital
HOLDERS:
By: /s/ βββββββ ββββ
-----------------------------------
Name: βββββββ ββββ
Title: Treasurer
Name of Institution: Tensor
[ILLEGIBLE]
31
HOLDERS:
By: /s/ βββ β. βββββββ
-----------------------------------
Name: βββ β. βββββββ
Title: General Partner
Name of Institution: The βββ
βββββββ Master ββ
βββ ββββββ
PRIME RATE INCOME TRUST
By: βββ ββββββ Investment Advisory Corp.
HOLDERS:
By: /s/ ββββ βββββ
-----------------------------------
Name: ββββ βββββ
Title: Vice President
Name of Institution:
βββ ββββββ
SENIOR FLOATING RATE FUND
By: βββ ββββββ Investment Advisory Corp.
HOLDERS:
By: /s/ ββββ βββββ
-----------------------------------
Name: ββββ βββββ
Title: Vice President
Name of Institution:
βββ ββββββ
SENIOR INCOME TRUST
By: βββ ββββββ Investment Advisory Corp.
HOLDERS:
By: /s/ ββββ βββββ
-----------------------------------
Name: ββββ βββββ
Title: Vice President
Name of Institution:
HOLDERS:
By: /s/ βββ β. βββββββ
-----------------------------------
Name: βββ β. βββββββ
Title: Portfolio Manager
Name of Institution: Woodmont
Investments Limited
32
HOLDERS:
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: [ILLEGIBLE]
Title: Authorized Signatory
Name of Institution:
Zurich Institutional Benchmarks
Master Fund Limited
MANAGEMENT HOLDERS:
By: /s/ ββββββ ββββββββββ
-----------------------------------
Name: ββββββ ββββββββββ
Title: President -- Global R&D
MANAGEMENT HOLDERS:
By: /s/ βββββ ββββββ
-----------------------------------
Name: βββββ ββββββ
Title: President North America
Customer Management
MANAGEMENT HOLDERS:
By: /s/ ββββ β. ββββββ
-----------------------------------
Name: ββββ β. ββββββ
Title: Senior Vice President and
Chief Financial Officer
MANAGEMENT HOLDERS:
By: /s/ βββββ β. βββββββββ
-----------------------------------
Name: βββββ β. βββββββββ
Title: Senior VP RA/QS/HSE, CIO
MANAGEMENT HOLDERS:
By: /s/ ββββββββ βββββββ
-----------------------------------
Name: ββββββββ βββββββ
Title: Senior Vice President
Human Resources
MANAGEMENT HOLDERS:
By: /s/ ββββ β. βββββ
-----------------------------------
Name: ββββ β. βββββ
Title: Corporate Vice President and
Treasurer
33
MANAGEMENT HOLDERS:
By: /s/ ββββββ ββββββββββ-ββββββ
-----------------------------------
Name: ββββββ ββββββββββ-ββββββ
Title: Vice President -- Corporate
Communications
MANAGEMENT HOLDERS:
By: /s/ ββββββ βββββββ
-----------------------------------
Name: ββββββ βββββββ
Title: Corporate Vice President
and Secretary
MANAGEMENT HOLDERS:
By: /s/ ββββββββ ββββββ βββββ
-----------------------------------
Name: ββββββββ ββββββ βββββ
Title: President -- Global Customer
Management
MANAGEMENT HOLDERS:
By: /s/ βββ ββββ-ββββββββ
-----------------------------------
Name: βββ ββββ-ββββββββ
Title: President and Chief
Executive Officer
MANAGEMENT HOLDERS:
By: /s/ βββββββ ββββββ
-----------------------------------
Name: βββββββ ββββββ
Title: President Global
Manufacturing Operations and
Supply Chain
MANAGEMENT HOLDERS:
By: /s/ ββββ ββββββ-βββββ
-----------------------------------
Name: ββββ ββββββ-βββββ
Title: Senior Vice President
Marketing
SCHEDULE A
HOLDERS OF REGISTRABLE COMMON STOCK
Number of
Original Holder Shares Owned
--------------- -------------
[To Come]
Number of
Management Holder Shares Owned
----------------- -------------
βββββ ββββ-And 132,000
ββββ ββββββ 36,000
ββββββ ββββββββββ 36,000
βββββββ ββββββ 36,000
ββββββββ βββββ 36,000
ββββ-ββββββ-βββββ 36,000
ββββββββ βββββββ 28,000
βββββ βββββββββ 28,000
βββββ ββββββ 16,000
ββββββ βββββββ 10,000
ββββ βββββ 4,000
ββββββββ ββββββββββ-ββββββ 2,000
SCHEDULE B
NOTICES
If to the Company, to:
Dade Behring Holdings, Inc.
Attention: ββββββ βββββββ, General Counsel
ββββ βββββββββ ββββ
β.β. βββ βββ
βββββββββ, ββ βββββ-ββββ
Tel: (βββ) βββ-ββββ
Fax: (βββ) βββ-ββββ
with a copy to:
ββββββββ & βββββ
Attention: βββββ β.β. ββββββββββ, P.C.
βββ ββββ ββββββββ βββββ
βββββββ, ββ βββββ
Tel: (βββ) βββ-ββββ
Fax: (βββ) βββ-ββββ
If to the Holders, to:
such Holder, at such Holder's address or to such Holder's telephone or telecopy
number reflected in the Company's books and records
with a copy to:
βββββββ βββββββ & ββββββββ
Attention: βββββ β. ββββββ, Esq.
βββ βββββββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Tel: (βββ) βββ-ββββ
Fax: (βββ) βββ-ββββ