Exhibit 99.1
REGISTRATION RIGHTS AGREEMENT
Dated November 16, 2004
among
ELAN FINANCE PUBLIC LIMITED COMPANY,
ELAN FINANCE CORP.,
ELAN CORPORATION, PLC,
CERTAIN SUBSIDIARY GUARANTORS
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
▇▇▇▇▇▇▇, SACHS & CO. AND
J & E DAVY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into November 16, 2004, among Elan Finance public limited company, a public
limited company incorporated and registered under the laws of Ireland and Elan
Finance Corp., a Delaware corporation (each, a co-issuer, and together, the
"Issuer"), Elan Corporation, plc, a public limited company incorporated and
registered under the laws of Ireland (the "Company"), the subsidiary guarantors
listed on the signature pages hereto (the "Subsidiary Guarantors", and together
with the Company, the "Guarantors") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇▇▇▇, Sachs & Co. and J & E Davy (the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated November
10, 2004, among the Issuer, the Company, the Subsidiary Guarantors and the
Initial Purchasers (the "Purchase Agreement"), which provides for the sale by
the Issuer to the Initial Purchasers of an aggregate of $850.0 million principal
amount of the Issuer's 7 3/4% Senior Notes due 2011 (the "Fixed Rate Notes") and
an aggregate of $300.0 million principal amount of the Issuer's Senior Floating
Notes due 2011 (the "Floating Rate Notes" and, together with the Fixed Rate
Notes, the "Notes"). The Notes will be unconditionally guaranteed (the
"Guarantees") on an unsecured and unsubordinated basis by the Guarantors.
Certain of the Notes will be represented by book-entry interests representing
interests in the Notes (the "Book-Entry Interests") to be issued pursuant to a
Deposit and Custody Agreement dated November 16, 2004, among the Issuer, the
Company, the Subsidiary Guarantors and the Global Note Depositary and Custodian
(the "Deposit and Custody Agreement"). We refer in this Agreement to the Notes,
including any Book-Entry Interests representing such Notes, and the Guarantees
as the "Securities". In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuer and the Guarantors have agreed to provide to the
Initial Purchasers and their direct and indirect transferees the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time to
time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"Black-Out Periods" shall have the meaning set forth in Section 3.
"Book-Entry Interests" shall have the meaning set forth in the preamble.
"Company" shall have the meaning set forth in the preamble.
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"Deposit and Custody Agreement" shall have the meaning set forth in the
preamble.
"Exchange Offer" shall mean the exchange offer by the Issuer of Exchange
Securities for Registrable Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the 1933 Act
effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 or F-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchange Securities" shall mean securities issued by the Issuer and the
Guarantors under the Indenture, and, in the case of the Notes, registered by
Book-Entry Interests to the extent provided in the Deposit and Custody Agreement
containing terms identical to the Securities (except that (i) interest thereon
shall accrue from the last date on which interest was paid on the Securities or,
if no such interest has been paid, from November 16, 2004 and (ii) the Exchange
Securities will not contain restrictions on transfer and the Exchange Securities
shall not be subject to any increase in annual interest by operation of this
Agreement) and to be offered to Holders of Securities in exchange for Securities
pursuant to the Exchange Offer.
"Global Note Depositary and Custodian" shall mean The Bank of New York, as
global note depositary and custodian, pursuant to the Deposit and Custody
Agreement and shall also include its successors.
"Guarantees" shall have the meaning set forth in the preamble.
"Guarantors" shall have the meaning set forth in the preamble and shall
also include each Guarantor's successors.
"Holder" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture; provided that for purposes of Sections 4 and 5 of this
Agreement, the term "Holder" shall include Participating Broker-Dealers (as
defined in Section 4(a)).
"Indenture" shall mean the Indenture relating to the Securities dated as of
November 16, 2004 among the Issuer, the Company, the Subsidiary Note Guarantors
and The Bank of New York, as trustee, and as the same may be amended from time
to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the Preamble.
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"Issue Date" shall mean the first date of issuance of Securities under the
Indenture.
"Issuer" shall have the meaning set forth in the preamble and shall also
include the Issuer's successors.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; provided that whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Issuer or
any of its affiliates (as such term is defined in Rule 405 under the ▇▇▇▇ ▇▇▇)
(other than the Initial Purchasers or subsequent Holders of Registrable
Securities if such subsequent holders are deemed to be such affiliates solely by
reason of their holding of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage or amount.
"Notes" shall have the meaning set forth in the preamble.
"Participating Broker-Dealer" shall have the meaning set forth in Section
4(a).
"Person" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated by reference therein.
"Registrable Securities" shall mean the Securities; provided, however, that
the Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities shall have been declared effective
under the 1933 Act and such Securities shall have been disposed of pursuant to
such Registration Statement, (ii) when such Securities have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the 1933 Act or (iii) when such Securities shall have ceased to
be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Issuer and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of up to one
counsel in each relevant jurisdiction for any underwriters (in an Underwritten
Offering) or Holders in connection with blue sky qualification of any of
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the Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto and any other documents relating to the performance of and
compliance with this Agreement and, in the case of an Underwritten Offering
only, any underwriting agreement or securities sales agreement (iv) all rating
agency fees, (v) all fees and disbursements relating to the qualification of the
Indenture under applicable securities laws, (vi) the fees and disbursements of
the Trustee and its counsel, (vii) the fees and disbursements of counsel for the
Issuer and the Guarantors and, in the case of a Shelf Registration Statement,
the fees and disbursements of one counsel for the Holders (which counsel shall
be selected by the Majority Holders and which counsel shall be counsel for the
Initial Purchasers unless the Majority Holders determine otherwise) and (viii)
the fees and disbursements of the independent public accountants of the Issuer
and the Guarantors, in the case of an Underwritten Offering, including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance; but excluding fees and expenses of counsel
to the underwriters or any advisers or experts retained by them (other than fees
and expenses set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Issuer and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Issuer and the Guarantors pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Securities on an appropriate
form under Rule 415 under the 1933 Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Subsidiary Guarantors" shall have the meaning set forth in the preamble.
"Trustee" shall mean the trustee with respect to the Securities under the
Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
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"Underwritten Offering" shall mean a registration in which Registrable
Securities registered on a Shelf Registration Statement are sold to an
Underwriter for reoffering to the public, when such Underwritten Offering is
requested by the Majority Holders. References herein to "Underwritten Offering"
shall refer only to the first such offering occurring during the term of this
Agreement.
2. Registration Under the ▇▇▇▇ ▇▇▇.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Issuer and the Guarantors shall file
within 300 days of the Issue Date an Exchange Offer Registration Statement
covering the offer by the Issuer and the Guarantors to the Holders to exchange
all of the Registrable Securities for Exchange Securities and to use their
reasonable best efforts to cause such Registration Statement become effective
within 365 days of the Issue Date and remain effective until the closing of the
Exchange Offer. The Issuer and the Guarantors shall commence the Exchange Offer
promptly after the Exchange Offer Registration Statement has been declared
effective by the SEC and use their reasonable best efforts to have the Exchange
Offer consummated not later than 35 days after such effective date. The Issuer
and the Guarantors shall commence the Exchange Offer by mailing the related
exchange offer Prospectus and accompanying documents to each Holder (including
the Global Note Depositary and Custodian) stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities validly
tendered and not validly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of
at least 20 business days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights
under this Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal, to
the institution and at the address specified in the notice prior to the
close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address specified in the notice a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for
exchange and a statement that such Holder is withdrawing his election to
have such Securities exchanged.
As soon as practicable after the last Exchange Date, the Issuer and the
Guarantors shall:
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(i) accept for exchange Registrable Securities or portions thereof
validly tendered and not validly withdrawn pursuant to the Exchange Offer;
and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted for
exchange by the Issuer and the Guarantors and issue, and cause the Trustee
to promptly authenticate and mail to each Holder, an Exchange Security
equal in principal amount to the principal amount of the Registrable
Securities surrendered by such Holder.
The Issuer and the Guarantors shall use their reasonable best efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the 1933 Act, the 1934 Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the Staff of the SEC.
The Issuer and the Guarantors shall, subject to applicable law, inform the
Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right, subject
to applicable law, to contact such Holders and otherwise facilitate the tender
of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer and the Guarantors determine that the
Exchange Offer Registration provided for in Section 2(a) above is not available
or may not be consummated as soon as practicable after the last Exchange Date
because it would violate applicable law or the applicable interpretations of the
Staff of the SEC, (ii) the Exchange Offer is not for any other reason
consummated on or before the date that is 400 days after the Issue Date or (iii)
the Exchange Offer has been completed and in the opinion of counsel for the
Initial Purchasers a Registration Statement must be filed and a Prospectus must
be delivered by the Initial Purchasers in connection with any offering or sale
of Registrable Securities, the Issuer and the Guarantors shall use their
reasonable best efforts to cause to be filed as soon as practicable after such
determination, date or notice of such opinion of counsel is given to the Issuer
or the Guarantors, as the case may be, a Shelf Registration Statement providing
for the sale by the Holders of all of the Registrable Securities and to have
such Shelf Registration Statement declared effective by the SEC. In the event
the Issuer and the Guarantors are required to file a Shelf Registration
Statement solely as a result of the matters referred to in clause (iii) of the
preceding sentence, the Issuer and the Guarantors shall use their reasonable
best efforts to file and have declared effective by the SEC both an Exchange
Offer Registration Statement pursuant to Section 2(a) with respect to all
Registrable Securities and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer Registration Statement)
with respect to offers and sales of Registrable Securities held by the Initial
Purchasers after completion of the Exchange Offer. The Issuer and the Guarantors
agree to use their reasonable best efforts to keep the Shelf Registration
Statement continuously effective until the expiration of the period referred to
in Rule 144(k) with respect to the Registrable Securities or such shorter period
that will terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement. The Issuer and the Guarantors further agree to supplement or amend
the Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Issuer and the
Guarantors for such Shelf Registration Statement or by the 1933 Act or by any
other rules and regulations thereunder for shelf registration or if reasonably
requested by a
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Holder with respect to information relating to such Holder, and to use their
reasonable best efforts to cause any such amendment to become effective and such
Shelf Registration Statement to become usable as soon as practicable thereafter.
The Issuer and the Guarantors agree to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(c) The Issuer and the Guarantors shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and Section 2(b). Each
Holder shall pay all expenses of its counsel (other than as expressly set forth
in this Agreement) all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume. Subject to the provisions of the
penultimate paragraph of Section 3 hereof, in the event the Exchange Offer is
not consummated and the Shelf Registration Statement is not declared effective
on or before the date that is 400 days after the Issue Date, the interest rate
on the Securities will be increased by 1.0% per annum until the Exchange Offer
is consummated or the Shelf Registration Statement, if required, is declared
effective by the SEC.
(e) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Issuer and the Guarantors acknowledge that any failure by the
Issuer or the Guarantors to comply with their obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may obtain
such relief as may be required to specifically enforce the Issuer and the
Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Issuer and the Guarantors with
respect to the Registration Statements pursuant to Section 2(a) and Section 2(b)
hereof, the Issuer and the Guarantors shall:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by the
Issuer and the Guarantors and (y) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling Holders
thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate all financial
statements required
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by the SEC to be filed therewith, and use their reasonable best efforts to cause
such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the 1933 Act; to keep each
Prospectus current during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
the Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably request, in order
to facilitate the public sale or other disposition of the Registrable Securities
(it being understood that documents available on ▇▇▇▇▇ shall be deemed to be so
furnished as of the date of their availability on ▇▇▇▇▇); and the Issuer and the
Guarantors consent to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with the offering
and sale of the Registrable Securities covered by and in the manner described in
such Prospectus or any amendment or supplement thereto in accordance with
applicable law;
(d) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky" laws
of such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC, to cooperate
with such Holders in connection with any filings required to be made with the
NASD, Inc. and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the disposition in
each such jurisdiction of such Registrable Securities owned by such Holder;
provided, however, neither the Issuer nor any Guarantor shall be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) file any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of Registrable
Securities, counsel for the Holders and counsel for the Initial Purchasers
promptly and, if requested by any such Holder or counsel, confirm such advice in
writing (i) when a Registration Statement has become effective and when any
post-effective amendment thereto has been filed and becomes effective, (ii) of
any request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
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covered thereby, the representations and warranties of the Issuer and the
Guarantors contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to the offering cease to be true
and correct in all material respects or if the Issuer or the Guarantors receive
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the period
a Shelf Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement or Prospectus so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and in the case of a Prospectus, it will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein as necessary to be stated therein to make the statements
therein, in light of the circumstances under which they were made not misleading
and (vi) of any determination by the Issuer and the Guarantors that a
post-effective amendment to a Registration Statement would be appropriate;
(f) use their reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement as soon as practicable
and provide prompt notice to each Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders
of Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities or receipts of book-entry
interests therein to be sold and not bearing any restrictive legends and enable
such Registrable Securities to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling Holders
may reasonably request at least three business day prior to the closing of any
sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(e)(v) hereof, use their reasonable best efforts to
prepare and file with the SEC a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such Prospectus will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Issuer and the Guarantors agree
to notify the Holders to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and the Holders hereby agree
to suspend use of the Prospectus until the Issuer and the Guarantors have
amended or supplemented the Prospectus to correct such misstatement or omission;
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(j) unless otherwise required by law or in the opinion of counsel to the
Issuer or the Guarantors, a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or any document which is to
be incorporated by reference into a Registration Statement or a Prospectus after
the initial filing of a Registration Statement, provide copies of such document
to the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) and make such of the
representatives of the Issuer and the Guarantors as shall be reasonably
requested by the Initial Purchasers or their counsel (and, in the case of a
Shelf Registration Statement, the Holders or their counsel) available for
discussion of such document, and shall not at any time file or make any
amendment to the Registration Statement, any Prospectus or any amendment of or
supplement to a Registration Statement or a Prospectus or any document which is
to be incorporated by reference into a Registration Statement or a Prospectus,
of which the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall not have previously
been advised and furnished a copy or to which timely delivered reasonable
comments by the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall not have been given
reasonable consideration by the Issuers and Guarantors;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act of
1939, as amended (the "TIA"), in connection with the registration of the
Exchange Securities or Registrable Securities, as the case may be, cooperate
with the Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use their reasonable best efforts to cause the Trustee
to execute, all documents as may be required to effect such changes and all
other forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(m) to the extent required under the 1933 Act and the rules and regulations
thereunder in order to register the Guarantees under the 1933 Act, to cause each
Guarantor to sign any Registration Statement and take all other action necessary
to register any such Guarantees under the applicable Registration Statement;
(n) to the extent required under the 1933 Act and the rules and regulations
thereunder in order to register the Book-Entry Interests under the 1933 Act, to
cause the Global Note Depositary and Custodian to sign any Registration
Statement and take all other action necessary to register any such Book-Entry
Interests under the applicable Registration Statement;
(o) in the case of a Shelf Registration, make available for inspection by a
representative of the Holders of the Registrable Securities, any Underwriter
participating in any disposition pursuant to such Shelf Registration Statement
(in the case of an Underwritten Offering), and attorneys and accountants
designated by the Holders, at reasonable times and in a reasonable manner, all
financial and other records, pertinent documents and properties of the Issuer
and the Guarantors, and cause the respective officers, directors and employees
of the Issuer and the Guarantors to supply all information reasonably requested
by any such
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representative, Underwriter, attorney or accountant in connection with a Shelf
Registration Statement;
(p) in the case of a Shelf Registration, use their reasonable best efforts
to cause all Registrable Securities to be listed on any securities exchange or
any automated quotation system on which securities issued by the Issuer and the
Guarantors which are substantially identical to the Registrable Securities are
then listed if requested by the Majority Holders, to the extent such Registrable
Securities satisfy applicable listing requirements;
(q) use their reasonable best efforts to cause the Exchange Securities or
Registrable Securities, as the case may be, to be rated by two nationally
recognized statistical rating organizations (as such term is defined in Rule
436(g)(2) under the ▇▇▇▇ ▇▇▇);
(r) if reasonably requested by any Holder of Registrable Securities covered
by a Registration Statement, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment such information with respect to such Holder as such
Holder reasonably requests to be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as the Issuer and the Guarantors have received notification of the matters to be
incorporated in such filing; and
(s) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority of the Registrable Securities being
sold) in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities with respect
to the business of the Issuer and the Guarantors and their respective
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii) obtain
opinions of counsel to the Issuer and the Guarantors (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to the
Holders and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (iii) in
the case of an Underwritten Offering, use their reasonable best efforts to
obtain "cold comfort" letters from the independent certified public accountants
of the Issuer and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Issuer and the Guarantors, or of any
business acquired by the Issuer or the Guarantors for which financial statements
and financial data are or are required to be included in the Registration
Statement) addressed to each Underwriter of Registrable Securities and such
other Persons who demonstrate to the reasonable satisfaction of such independent
certified public accountants that they have a due diligence defense under the
Securities Act, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and certificates as may
be reasonably requested by the Holders of a majority in principal amount of the
Registrable Securities being sold or the Underwriters, and which are customarily
delivered in underwritten offerings, to evidence the continued validity of the
representations and warranties of the Issuer and the Guarantors made
11
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Issuer and the
Guarantors may require each Holder of Registrable Securities to furnish to the
Issuer and the Guarantors such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities as the Issuer and the
Guarantors may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Issuer or the Guarantors of the happening of
any event of the kind described in Section 3(e)(v) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if
so directed by the Issuer or the Guarantors, such Holder will deliver to the
Issuer (at its expense) all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. If any
such notice to suspend the disposition of Registrable Securities pursuant to a
Registration Statement is given, the Issuer and the Guarantors shall extend the
period during which the Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions. If, prior to the effectiveness of any
Shelf Registration Statement, the Issuer or the Guarantors is aware that such
Shelf Registration Statement will not become effective within the time required
for effectiveness of such Shelf Registration Statement as a result of the
happening of any event of the kind described in Section 3(e)(v) hereof, the
Issuers and the Guarantors shall also be permitted to give a notice to such
Holders of like effect. The Issuer and the Guarantors may give any such notice
only twice during any 365 day period and any such suspensions may not exceed 30
days for each suspension and there may not be more than two suspensions in
effect during any 365 day period. Such periods of suspension are defined as
"Black-Out Periods". If the Issuer and the Guarantors fail to keep the Shelf
Registration Statement effective at any time other then in a Black-Out Period,
the interest rate on the Securities will be increased by 1.0% per annum until
such Shelf Registration Statement becomes and remains effective.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker-dealer that
receives Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer"), may
be deemed to be an "underwriter" within the
12
meaning of the 1933 Act and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such Exchange Securities.
The Issuer and the Guarantors understand that it is the Staff's position
that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the 1933 Act in connection with resales of Exchange Securities for their
own accounts, so long as the Prospectus otherwise meets the requirements of the
1933 Act.
(b) In light of the above, notwithstanding the other provisions of this
Agreement, the Issuer and the Guarantors agree that the provisions of this
Agreement as they relate to a Shelf Registration shall also apply to an Exchange
Offer Registration to the extent, and with such reasonable modifications thereto
as may be, reasonably requested by the Initial Purchasers or by one or more
Participating Broker-Dealers, in each case as provided in clause (ii) below, in
order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) the Issuer and the Guarantors shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a period
exceeding 180 days after the last Exchange Date (as such period may be
extended pursuant to the penultimate paragraph of Section 3 of this
Agreement) and Participating Broker-Dealers shall not be authorized by the
Issuer and the Guarantors to deliver and shall not deliver such Prospectus
after such period in connection with the resales contemplated by this
Section 4; and
(ii) the application of the Shelf Registration procedures set forth in
Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the 1933
Act and the rules and regulations thereunder, will be in conformity with
the reasonable request to the Issuer and the Guarantors by the Initial
Purchasers or with the reasonable request in writing to the Issuer and the
Guarantors by one or more broker-dealers who certify to the Initial
Purchasers, the Issuer and the Guarantors in writing that they anticipate
that they will be Participating Broker-Dealers; and provided further that,
in connection with such application of the Shelf Registration procedures
set forth in Section 3 to an Exchange Offer Registration, the Issuer and
the Guarantors shall be obligated (x) to deal only with one entity
representing the Participating Broker-Dealers, which shall be ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated unless it elects not to act as such
representative, (y) to pay the fees and expenses of only one counsel
representing the Participating Broker-Dealers, which shall be counsel to
the Initial Purchasers unless such counsel elects not to so act and (z) to
cause to be delivered only one, if any, "cold comfort" letter with respect
to the Prospectus in the form existing on the last Exchange Date and with
respect to each subsequent amendment or supplement, if any, effected during
the period specified in clause (i) above.
13
(c) The Initial Purchasers shall have no liability to the Issuer, the
Guarantors or any Holder with respect to any request that it may make pursuant
to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Issuer and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Initial Purchaser, each Holder and each Person,
if any, who controls any Initial Purchaser or any Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under
common control with, or is controlled by, any Initial Purchaser or any Holder,
and each affiliate of any Initial Purchaser within the meaning of Rule 405 under
the Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Initial Purchaser, any Holder or any such controlling
or affiliated Person in connection with defending or investigating any such
action or claim) caused by or arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
caused by or arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Issuer and the Guarantors shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
except insofar as such losses, claims, damages or liabilities are caused by (i)
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to the Initial Purchasers or any Holder
furnished to the Issuer and the Guarantors in writing through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated or any selling Holder expressly for use therein or (ii) the
failure of such Initial Purchaser or Holder or control person thereof to deliver
a supplement or amendment to any Prospectus which would have corrected such
untrue statement or omission or alleged untrue statement or omission; provided
such failure did not result from the Issuer's or the Guarantors' failure to
comply with Section 3 hereof. In connection with any Underwritten Offering
permitted by Section 3, the Issuer and the Guarantors will provide
indemnification no less favorable than as set forth above (or such other
indemnification acceptable to Holders or the Underwriters, if any) to the
Underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of the 1933 Act
and 1934 Act).
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Issuer, the Guarantors, the Initial Purchasers and the other
selling Holders, and each of their respective directors, officers and each
Person, if any, who controls the Issuer, any Guarantor, any Initial Purchaser
and any other selling Holder within the meaning of either Section 15 of the 1933
Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity
from the Issuer and the Guarantors to the Initial Purchasers and the Holders,
but only with reference to information relating to such Holder furnished to the
Issuer and the Guarantors in writing by such Holder expressly for use in any
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
14
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any Person in respect of which indemnity may be sought
pursuant to Section 5(a) or 5(b), such Person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party shall be entitled to
participation therein and, at its election assume the defense thereof (except in
connection with any proceeding described in the next succeeding sentence) and
shall, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to one local counsel in each jurisdiction where appropriate) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, in the case of parties indemnified pursuant to Section 5(a)
above, and by the Company, in the case of parties indemnified pursuant to
Section 5(b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section 5(a) or 5(b)
is judicially determined to be unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Issuer and the Guarantors on the one hand and
the Initial Purchasers on the other hand from the
15
offering of the Securities or (ii) if the allocation provided by clause 5(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 5(d)(i) above
but also the relative fault of the Issuer and the Guarantors on the one hand and
of the Initial Purchasers on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Issuer and the Guarantors on the one hand and the Initial Purchasers on
the other hand in connection with the offering of the Securities shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of the Securities (before deducting expenses) received by the Issuer and the
total discounts and commissions received by the Initial Purchasers, bear to the
aggregate offering price of the Securities. The relative fault of the Issuer and
the Guarantors on the one hand and of the Initial Purchasers on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuer and the
Guarantors or by the Initial Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Initial Purchasers' respective obligations to
contribute pursuant to this Section 5 are several in proportion to the
respective principal amount of Securities they have purchased hereunder, and not
joint.
(e) The Issuer, the Guarantors and each Holder agree that it would not be
just or equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Securities were sold by such Holder exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of the Initial
Purchasers, any Holder or any Person controlling any Initial Purchaser or any
Holder, or by or on behalf of the Issuer and the Guarantors, their respective
officers or directors or any Person controlling the Issuer or the Guarantors,
(iii) acceptance of any of the Exchange Securities and (iv) any sale of
Registrable Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
16
(a) No Inconsistent Agreements. The Issuer and the Guarantors have not
entered into, and on or after the date of this Agreement will not enter into,
any agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Issuer and the Guarantors' other issued and outstanding securities under any
such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Issuer and the Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided, however, that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 5
hereof shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Issuer and
the Guarantors by means of a notice given in accordance with the provisions of
this Section 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Issuer and the Guarantors, initially at the Issuer's and the Company's address
set forth in the Purchase Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section 6(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and such
Person shall be entitled to receive the benefits hereof. The Initial Purchasers
(in their
17
capacity as Initial Purchasers) shall have no liability or obligation to the
Issuer and the Guarantors with respect to any failure by a Holder to comply
with, or any breach by any Holder of, any of the obligations of such Holder
under this Agreement.
(e) Purchases and Sales of Securities. The Issuer and the Guarantors shall
not, and shall use their best efforts to cause their affiliates (as defined in
Rule 405 under the ▇▇▇▇ ▇▇▇) not to, purchase and then resell or otherwise
transfer any Securities.
(f) Third Party Beneficiary. The Holders shall be third party beneficiaries
to the agreements made hereunder between the Issuer and the Guarantors, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of the
State of New York.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ELAN FINANCE PUBLIC LIMITED COMPANY
By:
---------------------------------
Name:
Title:
ELAN FINANCE CORP.
ATHENA NEUROSCIENCES, INC.
ATHENA NEUROSCIENCES FINANCE, LLC
ELAN DIAGNOSTICS, INC.
ELAN DRUG DELIVERY, INC.
ELAN OPERATIONS, INC.
ELAN PHARMACEUTICALS, INC.
ELAN PHARMACEUTICAL MANAGEMENT CORP.
By:
---------------------------------
Name:
Title:
ELAN HOLDINGS, INC.
By:
---------------------------------
Name:
Title:
ELAN CORPORATION, PLC
DRUG RESEARCH CORPORATION PLC
ELAN HOLDINGS LIMITED
ELAN INNOVATIONS LIMITED
ELAN MANAGEMENT LIMITED
ELAN MEDICAL TECHNOLOGIES LIMITED
ELAN MEDICAL TECHNOLOGIES (IRELAND) LIMITED
ELAN PHARMA LIMITED
ELAN PHARMA INTERNATIONAL LIMITED
ELAN TRANSDERMAL LIMITED
ELAN ONE LIMITED
ELAN FOUR LIMITED
INSTITUTE OF BIOPHARMACEUTICS
LIMITED
MONKSLAND HOLDINGS COMPANY
TACKSON LIMITED
By:
---------------------------------
Name:
Title:
ELAN PHARMA LIMITED
ATHENA NEUROSCIENCES (EUROPE) LIMITED
▇.▇. ▇▇▇▇▇▇▇▇ CO. LIMITED
MEADWAY PHARMACEUTICALS LTD.
THE LIPOSOME COMPANY LIMITED
By:
---------------------------------
Name:
Title:
QUADRANT HOLDINGS (BERMUDA) LIMITED
AXOGEN LIMITED
ELAN CAPITAL CORP. LTD.
ELAN FINANCE CORPORATION LTD.
ELAN INTERNATIONAL INSURANCE LIMITED
ELAN INTERNATIONAL PORTFOLIOS LIMITED
ELAN INTERNATIONAL SERVICES LTD.
ELAN PHARMACEUTICAL INVESTMENTS LTD.
NEURALAB LIMITED
By:
---------------------------------
Name:
Title:
ELAN INTERNATIONAL MANAGEMENT LIMITED
By:
---------------------------------
Name:
Title:
ELAN PHARMA B.V.
By:
---------------------------------
Name:
Title:
MONKSLAND HOLDINGS B.V.
By:
---------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
J & E DAVY
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
--------------------------------
Name:
Title: