EXHIBIT (c)(10)
TOKHEIM CORPORATION
REGISTRATION RIGHTS AGREEMENT
-----------------------------
September 30, 1998
SCHLUMBERGER LIMITED
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Tokheim Corporation, an Indiana corporation (the "Company"), proposes to
issue and sell to you ("Schlumberger"), upon the terms set forth in a purchase
agreement of even date herewith (the "Purchase Agreement"), (i) US$40,000,000
aggregate principal amount of its 12% Junior Subordinated Notes due 2008 (the
"Junior Subordinated Notes"), (ii) US$170,000,000 aggregate principal amount of
its 12% Senior Subordinated Notes due January 28, 1999 (the "Senior Subordinated
Notes") and (iii) warrants exercisable for shares (the "Warrant Shares")
representing up to 19.9% of the outstanding common stock (the "Common Stock") of
the Company. In the event that the Company is unable to repay the Senior
Subordinated Notes at their stated maturity, the Senior Subordinated Notes will
be exchanged , subject to certain conditions, for Increasing Rate Senior
Subordinated Notes due 2007 (the "Roll-Over Notes", and together with the Junior
Subordinated Notes and the Senior Subordinated Notes, the "Notes"). The Senior
Subordinated Notes and the Roll-Over Notes will be issued pursuant to an
Indenture to be dated as of September 30, 1998 (the "Senior Indenture") between
the Company and ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the "Senior
Trustee"). The Junior Subordinated Notes will be issued pursuant to an
Indenture to be dated as of September 30, 1998 (the "Junior Indenture") between
the Company and ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the "Junior
Trustee"). Capitalized terms used but not specifically defined herein are
defined in the Purchase Agreement. As an inducement to Schlumberger to enter
into the Purchase Agreement, the Company agrees with Schlumberger, for the
benefit of the holders of the Notes and the Common Stock, including Schlumberger
(the "Holders"), as follows:
1. Registered Exchange Offer. The Company shall prepare and, not later
than 90 days after the exchange of any Senior Subordinated Notes for Roll-Over
Notes (the "Conversion Date"), shall file with the Commission a registration
statement (the "Exchange Offer Registration Statement") on an appropriate form
under the Securities Act with respect to a proposed offer (the "Exchange Offer")
to the Holders of Roll-Over Notes to issue and deliver to such Holders, in
exchange for the Roll-Over Notes, a like aggregate principal amount of debt
securities of the Company (the "Exchange Notes") identical in all material
respects to the Roll-Over Notes, except for the transfer restrictions relating
to the Roll-Over Notes. The Company shall use its best efforts to cause the
Exchange Offer Registration Statement to become effective under the Securities
Act within 150 days after the Conversion Date and shall keep the Exchange Offer
Registration Statement effective for not less than 20 days (or longer, if
required by applicable
law) after the date on which notice of the Exchange Offer is mailed to the
Holders of Roll-Over Notes (such period being called the "Exchange Offer
Registration Period"). The Company shall use its best efforts to consummate the
Exchange Offer within 195 days after the Conversion Date. The Exchange Notes
will be issued under the Senior Indenture.
Upon the effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Exchange Offer, it being the objective of
such Exchange Offer to enable each Holder of Roll-Over Notes electing to
exchange Roll-Over Notes for Exchange Notes (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, that such
Holder acquires the Exchange Notes in the ordinary course of such Holder's
business and that such Holder has no arrangements with any person to participate
in the distribution of the Exchange Notes) to trade such Exchange Notes from and
after their receipt without any limitations or restrictions under the Securities
Act and without material restrictions under the securities laws of the several
states of the United States. The Company acknowledges that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act,
(i) each Holder of Roll-Over Notes that is a broker-dealer electing to exchange
Roll-Over Notes, acquired for its own account as a result of market-making
activities or other trading activities, for Exchange Notes (an "Exchanging
Dealer"), is required to deliver a prospectus containing the information set
forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section, and in
Annex C hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Notes received by such Exchanging
Dealer pursuant to the Exchange Offer.
In connection with the Exchange Offer, the Company shall:
(a) mail to each Holder of Roll-Over Notes a copy of the prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for not less than 20 days after the
date notice thereof is mailed to the Holders of the Roll-Over Notes (or
longer if required by applicable law);
(c) utilize the services of a Depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(d) permit Holders of Roll-Over Notes to withdraw tendered Roll-Over
Notes at any time prior to the close of business, New York time, on the
last business day on which the Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws.
As soon as practicable after the close of the Exchange Offer, the Company
shall:
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(a) accept for exchange all Roll-Over Notes tendered and not validly
withdrawn pursuant to the Exchange Offer;
(b) deliver to the Senior Trustee for cancellation all Roll-Over Notes
so accepted for exchange; and
(c) cause the Senior Trustee or the Exchange Notes Trustee, as the
case may be, promptly to authenticate and deliver to each Holder of Roll-
Over Notes, Exchange Notes equal in principal amount to the Roll-Over Notes
of such Holder so accepted for exchange.
Interest on each Exchange Notes issued pursuant to the Exchange Offer will
accrue from the last interest payment date on which interest was paid on the
Roll-Over Notes surrendered in exchange therefor or, if no interest has been
paid on the Roll-Over Notes, from the date of original issue of the Roll-Over
Notes.
The Company will require each Holder of Roll-Over Notes participating in
the Exchange Offer to represent to the Company that at the time of the
consummation of the Exchange Offer (i) any Exchange Notes received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understandings with any person to participate in
the distribution of the Roll-Over Notes or the Exchange Notes within the meaning
of the Securities Act and (iii) such Holder is not an affiliate of the Company
within the meaning of the Securities Act.
Notwithstanding any other provisions hereof, the Company will ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto comply in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer 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 Exchange Offer Registration Statement, and any supplement to
such prospectus, does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements, in the light
of the circumstances under which they were made, not misleading.
2. Shelf Registration. If, because of any change in law or applicable
interpretations thereof by the Commission's staff, the Company determines that
it is not permitted to effect the Exchange Offer as contemplated by Section 1,
or if for any other reason the Exchange Offer is not consummated within 195 days
after the Conversion Date, or Holders of Roll-Over Notes so request with respect
to Roll-Over Notes not eligible to be exchanged for Exchange Notes in an
Exchange Offer and held by them following consummation of the Exchange Offer or
if any Holder of Roll-Over Notes (other than an Exchanging Dealer) is not
eligible to participate in the Exchange Offer or, in the case of any Holder of
Roll-Over Notes that participates in the Exchange Offer (other than an
Exchanging Dealer), does not receive freely tradable Exchange Notes in exchange
for tendered Roll-Over Notes or if the Company so elects, the following
provisions shall apply:
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(a) The Company shall as promptly as practicable file with the
Commission and thereafter shall use its best efforts to cause to be
declared effective a registration statement on an appropriate form under
the Securities Act relating to the offer and sale of the Roll-Over Notes by
the Holders of Roll-Over Notes from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such
registration statement (hereafter, a "Shelf Registration Statement" and,
together with any Exchange Offer Registration Statement, a "Registration
Statement").
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be usable by Holders of Roll-Over Notes
for a period of three years from the date the Shelf Registration Statement
is declared effective by the Commission or such shorter period that will
terminate when all the Roll-Over Notes covered by the Shelf Registration
Statement have been sold pursuant to the Registration Statement (in any
such case, such period being called the "Shelf Registration Period"). The
Company shall be deemed not to have used its best efforts to keep the Shelf
Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of Roll-Over
Notes covered thereby not being able to offer and sell such Roll-Over Notes
during that period, unless (i) such action is required by applicable law,
or (ii) such action is taken by the Company in good faith and for valid
business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so long as
the Company promptly thereafter complies with the requirements of Section
6(i) hereof, if applicable.
(c) Notwithstanding any other provisions hereof, the Company will
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 Securities 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, does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3. Registration on Request. (a) For the period beginning 121 days after
thedate hereof and ending onthe second anniversary hereof, upon the written
request of the Holders of a majority of the Warrants or the Holders of a
majority of the Junior Subordinated Notes or the Warrant Shares (collectively,
the "Demand Registrable Securities", and together with the Roll-Over Notes, the
"Securities") requesting that the Company effect the registration under the
Securities Act of all or part of such Holders' respective Demand Registrable
Securities, the Company shall promptly give written notice of such requested
registration to all Holders of such Demand Registrable Securities, and thereupon
the Company shall promptly use commercially reasonable efforts to effect the
registration under the Securities Act of
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(i) the Demand Registrable Securities which the Company has been so
requested to register by such Holders, and
(ii) all other Demand Registrable Securities which the Company has been
requested to register by the Holders thereof by written request given to
the Company within 30 days after the giving of such written notice by the
Company,
all to the extent requisite to permit the disposition of the Demand Registrable
Securities so to be registered. All registrations requested pursuant to this
Section 3(a) are referred to herein as "Demand Registrations." Notwithstanding
the foregoing, if the Company shall be engaged in non-public discussions
regarding a material transaction that, in the judgment of the Company is not
ripe for disclosure but that would be required to be disclosed in any such
registration, the Company may defer complying with the provisions hereof for a
period of 90 days following receipt of any written request hereunder.
(b) The holders of Demand Registrable Securities will be entitled to
request one registration in which the Company will pay all Registration
Expenses. Such registration shall be underwritten.
(c) Whenever the Company shall effect a registration pursuant to this
Section 3 in connection with an offering by one or more Holders of Demand
Registrable Securities, subject to the provisions of Section 3(f), securities
other than Demand Registrable Securities may be included among the securities
covered by such registration.
(d) A Demand Registration pursuant to this Section 3 shall not be deemed to
have been effected (i) unless a registration statement with respect thereto has
become effective, (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 agency or court for any reason, or (iii) if
the conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied,
other than by reason of some act or omission by the Holders requesting such
registration. A requested Demand Registration under this Section 3 may be
rescinded by written notice to the Company by the Holders requesting such
registration prior to filing of the registration statement and such rescinded
registration shall not count as a registration statement initiated pursuant to
this Section 3.
(e) With respect to any registration pursuant to this Section 3, the
Company may include in such registration any other securities; provided,
however, that in the event the registration is for a registered public offering
involving an underwriting, if the underwriter (or the managing underwriter on
behalf of the underwriters) advises the Company that the inclusion of all Demand
Registrable Securities and other securities proposed to be included in such
registration would interfere with the successful marketing (including pricing)
of all such securities, then the number of Demand Registrable Securities shall
be given first priority with respect to the marketing of such securities.
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(f) Notwithstanding any other provision of this Section 3, at any time or
from time to time, if the Company effects the registration of less than 90% of
all of the Demand Registrable Securities requested to be registered pursuant to
Section 3(a) and Section 3(b), the Holders of a majority of the Demand
Registrable Securities shall be entitled to request an additional registration
pursuant to Section 3(a) and Section 3(b), as the case may be. Any such
registration shall be requested, effected and in all other respects in
accordance with the terms of Section 3(a), and the Company will pay all
Registration Expenses in connection with any such registration.
4. Piggyback Registration. (a) If, during the period beginning 121 days
after the date hereof and ending on the second anniversary of the date hereof,
the Company at any time proposes to register any of its securities under the
Securities Act (other than registrations (i) on Form ▇-▇, ▇▇▇▇ ▇-▇, or any
successor forms thereto, or (ii) pursuant to Section 3), whether or not for sale
for its own account, and the registration form to be used may be used for the
registration of Demand Registrable Securities (a "Piggyback Registration"), the
Company will at each such time give prompt written notice to all Holders of
Demand Registrable Securities of its intention to do so and of such Holders'
rights under this Section 4. Upon the written request of any such Holder made
within 30 days after the receipt of any such notice (which request shall specify
the Demand Registrable Securities intended to be disposed of by such Holder),
the Company will use its commercially reasonable efforts to effect the
registration under the Securities Act of all Demand Registrable Securities which
the Company has been so requested to register by the Holders thereof on the same
terms and conditions as the securities otherwise being sold in such
registration, to the extent requisite to permit the disposition of the Demand
Registrable Securities so to be registered. The Holders of the Demand
Registrable Securities will pay all Registration Expenses in connection with
each registration of Demand Registrable Securities requested pursuant to this
Section 4.
(b) If (i) a registration pursuant to this Section 4 involves an
underwritten offering of the securities so being registered, whether or not for
sale for the account of the Company, to be distributed (on a firm commitment
basis) by or through one or more underwriters of recognized standing under
underwriting terms appropriate for such a transaction, (ii) the Holders of
Demand Registrable Securities request any Demand Registrable Securities to be
included in such underwritten offering pursuant to this Section 4 and (iii) the
managing underwriter of such underwritten offering shall inform the Company in
writing of its belief that the number of securities requested to be included in
such registration exceeds the number which can be sold in (or during the time
of) such offering without adversely affecting the price to be received thereon,
then the Company will include in such registration, to the extent of the number
which the Company is so advised can be sold in (or during the time of) such
offering, (x) first, all securities proposed by the Company to be sold for its
own account or all securities (other than Demand Registrable Securities)
proposed by the Company to be sold for the account of the holders thereof, as
the case may be, (y) second, such Demand Registrable Securities requested to be
included in such registration pro rata on the basis of the number of shares of
such Demand Registrable Securities so proposed to be sold and so requested to be
included, and (z) third, other securities requested to be included in such
registration.
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(c) If the Company has previously filed a registration statement with
respect to Demand Registrable Securities pursuant to Section 3 or this Section
4, and if such previous registration has not been withdrawn or abandoned, the
Company will not file or cause to be effected any other registration of any of
its equity securities or securities convertible or exchangeable into or
exercisable for its equity securities under the Securities Act (except on Form
S-8 or any successor form), whether on its own behalf or at the request of any
holder or holders of such securities, until a period of at least three months
has elapsed from the effective date of such previous registration.
5. Registration Procedures. To the extent applicable, in connection with
any Registration Statement, the following provisions shall apply:
(a) The Company shall advise the Holders of Securities, and, if requested
by any such Holder, confirm such advice in writing (which advice pursuant to
clauses (ii) through (v) hereof shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes have been made):
(i) when such Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to such Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of such Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of any of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
(v) of the happening of any event that requires the making of any
changes in such Registration Statement or the prospectus so that, as of
such date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(b) The Company will make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of any Registration Statement at the
earliest possible time.
(c) The Company will furnish to each Holder of Securities included within
the coverage of any Registration Statement, without charge, at least one copy of
such Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits (including those incorporated by reference).
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(d) The Company will deliver to each Holder of Securities included within
the coverage of any Registration Statement, without charge, as many copies of
the prospectus (including each preliminary prospectus) included in such
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company consents to the use of the prospectus,
or any amendment or supplement thereto by each of the selling Holders of
Securities in connection with the offering and sale of any Securities covered by
the prospectus or any amendment or supplement thereto.
(e) The Company will furnish to each Exchanging Dealer that so requests,
without charge, at least one copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules, and, if such Exchanging Dealer so requests in writing, all exhibits
(including those incorporated by reference).
(f) The Company will, during any Registration Period, as applicable,
promptly deliver to each Exchanging Dealer or underwriter, as applicable,
without charge, as many copies of the prospectus included in such Registration
Statement and any amendment or supplement thereto as such Exchanging Dealer or
underwriter, as applicable, may reasonably request; and the Company consents to
the use of the prospectus or any amendment or supplement thereto by any such
Exchanging Dealer or underwriter, as applicable, as aforesaid.
(g) Prior to any public offering of Securities pursuant to any Registration
Statement, the Company will use its reasonable best efforts to register or
qualify or cooperate with the Holders of Securities included therein and their
respective counsel in connection with the registration or qualification of such
securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holder reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such jurisdictions of the Securities covered by such Registration Statement;
provided, however, that the Company will not be required to qualify generally to
do business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
(h) The Company will cooperate with the Holders of Securities to facilitate
the timely preparation and delivery of certificates representing Securities to
be sold pursuant to any Registration Statement free of any restrictive legends
and in such denominations and registered in such names as Holders may request
prior to sales of Securities pursuant to such Registration Statement.
(i) Upon the occurrence of any event contemplated by clauses (a)(ii)
through (v) above during the period for which the Company is required to
maintain an effective Registration Statement, the Company will promptly prepare
a post-effective amendment to the Registration Statement or a supplement to the
related prospectus or file any other required document so that, as thereafter
delivered to purchasers of the Securities, the prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
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(j) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for such Securities, and
provide the applicable trustee with printed certificates for such Securities, in
a form eligible for deposit with The Depository Trust Company.
(k) The Company will comply with all applicable rules and regulations of
the Commission and will make generally available to its security holders as soon
as practicable after the effective date of the applicable Registration Statement
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act.
(l) The Company will cause any Indenture, as the case may be, to be
qualified under the Trust Indenture Act as required by applicable law in a
timely manner.
(m) The Company may require each Holder of Securities to be sold pursuant
to any Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such Securities as the Company may
from time to time reasonably require for inclusion in such Registration
Statement, and the Company may exclude from such registration the Securities of
any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(n) The Company shall enter into such customary agreements (including, if
requested, an underwriting agreement in customary form) and take all such other
action, if any, as Holders of a majority in aggregate principal amount of such
Securities being sold or the managing underwriters (if any) shall reasonably
request in order to facilitate the disposition of Securities pursuant to any
Registration Statement.
(o) In the case of any Registration Statement, the Company shall (i) make
reasonably available for inspection by a representative of, and Special Counsel
(as defined in Section 7) acting for, the Holders, and any underwriter
participating in any disposition pursuant to any Registration Statement, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably requested by such
representative, counsel or any such underwriter (an "Inspector") in connection
with any such Registration Statement, subject to executing a confidentiality
undertaking in customary form with respect to confidential and/or proprietary
information of the Company.
(p) In the case of any Registration Statement, the Company, if requested by
Holders of a majority in aggregate principal amount, their Special Counsel, or
the managing underwriters (if any) in connection with any Registration
Statement, shall use its best efforts to cause (w) its counsel to deliver an
opinion relating to such Registration Statement and such Securities, in
customary form, (x) its officers to execute and deliver all customary documents
and certificates requested by Holders of a majority in aggregate principal
amount, their Special Counsel, or the managing underwriters (if any) and (y) its
independent public accountants to provide a comfort letter in customary form,
subject to receipt of appropriate documentation as contemplated, and only if
permitted by Statement of Auditing Standards No. 72.
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(q) The Company will use its best efforts to cause any Securities covered
by a Registration Statement, as applicable, to be rated with the appropriate
rating agencies, if so requested by Holders of a majority in aggregate principal
amount of the Securities covered by such Registration Statement or the managing
underwriters, if any.
(r) The Company will use its best efforts to cause the Securities relating
to such Registration Statement to be listed on each securities exchange, if any,
on which securities issued by the Company are then listed, if so requested by
Holders of a majority in aggregate principal amount of the Securities covered by
such Registration Statement or the managing underwriters, if any.
(s) In the case of any Registration Statement, each Holder of Securities
agrees by acquisition of such Securities that, upon receipt of any notice of the
Company pursuant to Section 6(a)(ii) through (v), such Holder will discontinue
disposition of such Securities covered by such Registration Statement until such
Holder's receipt of copies of the supplemental or amended Prospectus
contemplated by Section 6(i), or until advised in writing (the "Advice") by the
Company that the use of the applicable prospectus may be resumed. If the
Company shall give any notice under Section 6(a)(ii) through (v) during the
period that the Company is required to maintain an effective Shelf Registration
Statement (the "Effectiveness Period"), such Effectiveness Period shall be
extended by the number of days during such period from and including the date of
the giving of such notice to and including the date when each seller of
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemental or amended prospectus contemplated by Section 6(i)
(if an amended or supplemental prospectus is required) or (y) the Advice (if no
amended or supplemental prospectus is required).
6. Registration Expenses. The Company will bear all expenses incurred in
connection with the performance of its obligations under Sections l, 2, 3
(provided however, that, subject to the terms of Section 3, the Company shall
only bear the expenses for one Demand Registration initiated pursuant to Section
3) and 5 and will reimburse the Holders for the reasonable fees and
disbursements of one firm of attorneys (in addition to local counsel) chosen by
the Holders of a majority in aggregate principal amount of the Securities (the
"Special Counsel") acting for the Holders in connection therewith. The Holders'
of Securities shall be required to bear all expenses incurred as a result of
their exercise of Piggyback Rights pursuant to Section 4.
7. Indemnification. (a) In connection with any Registration Statement or
any prospectus delivery, the Company shall indemnify and hold harmless each
Holder and each person, if any, who controls such Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or the omission or alleged
omission therefrom of a material fact necessary in order to make
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the statements therein, in the light of the circumstances under which they
were made, not misleading; and
(ii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the indemnified party),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental or
regulatory 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.
provided, however, that the foregoing indemnity shall not apply to any loss,
liability, claim, damage and expense arising from any untrue statement or
alleged untrue statement of a material fact relating to the Holder and furnished
by the Holder to the Company in connection with such Registration Statement.
(b) In connection with any Registration Statement, each Holder agrees to
indemnify and hold harmless the Company, its directors, officers, agents and
employees and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act and the
directors, officers, agents and employees of such controlling persons against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 8(a), as incurred, arising out of or based upon
any untrue statements or omissions, or alleged untrue statements or omissions,
made in such Registration Statement (or any amendment or supplement thereto) in
reliance on and in conformity with written information furnished to the Company
by such Holder expressly for use in the Registration Statement (or in such
amendment or supplement); provided, however, that no such Holder shall be liable
for any indemnity claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Securities pursuant to such
Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any claim or action commenced against
it in respect of which indemnity may be sought hereunder, provided, that failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any obligation that it may have pursuant to this Section except to the
extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure and, provided further that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than on account of this
indemnity agreement. If any such claim or action shall be brought against an
indemnified party, the indemnified party shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof (other than
reasonable costs of investigation); provided, however, that an
11
indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (2)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm of attorneys (in addition to any local counsel) at any one time for all
such indemnified party or parties. Each indemnified party, as a condition of
the indemnity agreements contained in Sections 8(a) and 8(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment, of the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
(d) If a claim by an indemnified party for indemnification under this
Section 8 is found unenforceable in a final judgment by a court of competent
jurisdiction (not subject to further appeal or review) even though the express
provisions hereof provide for indemnification in such case, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified party in connection with the
actions, statements or omissions that resulted in such losses as well as any
other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a
result of any losses shall be deemed to include, subject to the limitations set
forth in Section 8(c), any legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that
12
does not take into account the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section
8, an indemnifying party that is a Holder of Securities shall not be required to
contribute any amount in excess of the amount by which the total price at which
the securities sold by such indemnifying party and distributed to the public
were offered to the public exceeds the amount of any damages that such
indemnifying party has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to any contribution from any person who was
not guilty of such fraudulent misrepresentation.
8. Rules 144 and 144A. The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act
in a timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Securities, make publicly
available other information so long as necessary to permit sales of their
securities pursuant to Rules 144 and 144A. The Company covenants that it will
take such further action as any Holder of Securities may reasonably request, all
to the extent required from time to time to enable such Holder to sell
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rules 144 and 144A (including the requirements of
Rule 144A(d)(4)). Upon the request of any Holder of Securities, the Company
shall deliver to such Holder a written statement as to whether it has complied
with such requirements. Notwithstanding the foregoing, nothing in this Section
9 shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Securities covered by any
registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate principal amount of
such Securities included in such offering, subject to the consent of the Company
(which shall not be unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such person's Securities on the basis reasonably
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement 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 a majority in aggregate principal
amount of the Securities. 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 the Holders of Securities whose Securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of a
majority in aggregate principal amount of the Securities being sold by such
Holders pursuant to such Registration Statement.
13
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 11(b),
which address initially is Schlumberger Limited, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; and
(2) if to the Company, initially at Tokheim Corporation, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇.
All such notices and communications shall be deemed to have been duly given
when delivered by hand, if personally delivered; one business day after being
delivered to a next-day air courier; five business days after being deposited in
the mail; when answered back, if faxed; and when receipt is acknowledged by the
recipient's telecopier machine, if telecopied.
(c) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW,
TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT
14
THE RIGHT OF ANY HOLDER OF A TRANSFER RESTRICTED SECURITY TO SERVE PROCESS IN
ANY MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(g) Remedies. In the event of a breach by the Company, or by a Holder of
Securities, of any of their obligations under this Agreement, each Holder of
Securities or the Company, as the case may be, 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 and each Holder of Securities Notes agree 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 agree that, in the
event of any action for specific performance in respect of such breach, such
seeker of specific performance shall waive the defense that a remedy at law
would be adequate.
(h) No Inconsistent Agreements. The Company has not, nor shall the Company
on or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the Holders of Securities in this
Agreement or otherwise conflicts with the provisions hereof. The Company has
not previously entered into any agreement granting any registration rights with
respect to any of its debt securities to any person which has not been
fulfilled. Without limiting the generality of the foregoing, without the
written consent of the Holders of a majority in aggregate principal amount of
the then outstanding Securities, the Company shall not grant to any person the
right to request the Company to register any securities of the Company under the
Securities Act unless the rights so granted are subject in all respects to the
prior rights of the Holders of Securities set forth herein, and are not
otherwise in conflict or inconsistent with the provisions of this Agreement.
(i) No Piggyback on Registrations. None of the Company nor any of their
respective security holders (other than the Holders of Securities in such
capacity) shall have the right to include any securities of the Company in any
registration which is initiated to comply with Section 1 or 2 of this Agreement.
(j) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
15
Please confirm that the foregoing correctly sets forth the agreement
between the Company and Schlumberger.
Very truly yours,
TOKHEIM CORPORATION
By:
--------------------------------
Name:
Title:
Agreed to and Accepted by:
SCHLUMBERGER LIMITED
By:
--------------------------------
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Roll-Over Notes where
such Roll-Over Notes were acquired by such broker-dealer as a result of market-
making activities or other trading activities. The Company has agreed that, for
a period of 90 days after the Expiration Date (as defined herein), it will make
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Roll-Over Notes, where such Roll-Over Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Roll-Over Notes where such Roll-Over Notes were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 90 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until ,
199 , all dealers effecting transactions in the Exchange Notes may be required
to deliver a prospectus./1/
The Company will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Notes. Any broker-
dealer that resells Exchange Notes that were received by it for its own account
pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Roll-Over Notes may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit on any such resale of Exchange
Notes and any commission or concessions received by any such persons may be
deemed to be underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Company will promptly
send additional copies of this Prospectus and any amendment or supplement to
this Prospectus to any broker-dealer that requests such documents in the Letter
of Transmittal. The Company has agreed to pay all expenses incident to the
Exchange Offer (including the expenses of one counsel for the Holders of the
Roll-Over Notes) other than commissions or concessions of any brokers or dealers
and will indemnify the Holders of the Roll-Over Notes (including any broker-
dealers) against certain liabilities, including liabilities under the Securities
Act.
------------------
/1/ In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
ANNEX D
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: ______________________________________
Address: ______________________________________
______________________________________
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Notes. If the undersigned is a broker-dealer that will receive
Exchange Notes for its own account in exchange for Roll-Over Notes that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.