Exhibit 4.3
Registration Rights Agreement
Dated As of April 24, 2002
between
▇▇▇▇▇▇ Scientific International Inc.
and
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
Credit Suisse First Boston Corporation
and
Deutsche Bank Securities Inc.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 24th day of April, 2002, among ▇▇▇▇▇▇ Scientific
International Inc., a Delaware corporation (the "Company"), and ▇.▇. ▇▇▇▇▇▇
Securities Inc., Credit Suisse First Boston Corporation and Deutsche Bank
Securities Inc. ("Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
April 17, 2002, between the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for, among other things, the sale by the Company
to the Initial Purchasers of an aggregate of $150 million principal amount of
the Company's 8 1/8% Senior Subordinated Notes due 2012 (the "Securities"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Company has 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 l934, as amended
from time to time.
"Affiliated Market Maker" shall mean any Initial Purchaser who is
required to by applicable law to deliver a prospectus in connection with sales
or market making activities with respect to the Exchange Securities.
"Closing Date" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" see the preamble hereto and shall also include the
Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, provided, however, that such depositary
must have an address in the Borough of Manhattan, in the City of New York.
"Effectiveness Period" see Section 2.2(b).
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement,
including the Prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein.
"Exchange Period" see Section 2.1 hereof.
"Exchange Securities" shall mean the 8 1/8% Senior Subordinated Notes
due 2012 to be issued by the Company under the Indenture containing terms
identical to the Securities in all material respects (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 April 24, 2002 and (ii)
the transfer restrictions thereon shall be eliminated), to be offered to
Holders of Securities in exchange for Registrable Securities pursuant to the
Exchange Offer.
"Holder" shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture and each Participating Broker-Dealer that holds Exchange
Securities for so long as such Participating Broker-Dealer is required to
deliver a prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities,
dated as of April 24, 2002, between the Company and ▇. ▇. ▇▇▇▇▇▇ Trust
Company, National Association, as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance
with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" see the preamble hereto.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding (as defined in the Indenture)
Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company and other obligors on
the Securities or any Affiliate (as defined in the Indenture) of the Company
shall be disregarded in determining whether such consent or approval was given
by the Holders of such required percentage amount.
"Participating Broker-Dealer" shall mean ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
Credit Suisse First Boston Corporation, Deutsche Bank Securities Inc., and any
other broker-dealer that holds Registrable Securities acquired for its own
account as a result of market making activities in the Securities and that
will be the beneficial owner (as defined in Rule 13d-3 under the ▇▇▇▇ ▇▇▇) of
Exchange Securities to be received by such broker-dealer in the Exchange
Offer.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization,
or a government or agency or political subdivision thereof.
"Private Exchange" see Section 2.1 hereof.
"Private Exchange Securities" see Section 2.1 hereof.
"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 any such
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Shelf Registration Statement, and
by all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" see the preamble hereto.
"Registration Default" see Section 2.5.
"Registrable Securities" shall mean the Securities and, if issued,
the Private Exchange Securities; provided, however, the Securities and, if
issued, the Private Exchange Securities shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Securities
or Private Exchange Securities for the exchange or resale thereof, as the case
may be, shall have been declared effective under the 1933 Act and such
Securities or Private Exchange Securities, as the case may be, shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities or
Private Exchange Securities, as the case may be, have been sold to the public
pursuant to Rule l44 (or any similar provision then in force, but not Rule
144A) under the 1933 Act, (iii) such Securities or Private Exchange
Securities, as the case may be, shall have ceased to be Outstanding (as
defined in the Indenture) or (iv) with respect to the Securities, the Exchange
Offer is consummated (except in the case of Securities purchased from the
Company and continued to be held by the Initial Purchasers and except with
respect to any Securities as to which clause (iv) of Section 2.2 is
applicable).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any holder of Registrable Securities in
accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws and compliance with the rules of the NASD (including reasonable fees
and disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Securities or Registrable
Securities and any filings with the NASD), (iii) all expenses of any Persons
in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the listing,
if any, of any of the Registrable Securities on any securities exchange or
exchanges, (v) all rating agency fees, (vi) the fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, (vii) the
fees and expenses of the Trustee, and any exchange agent or custodian, (viii)
the reasonable fees and expenses of the Initial Purchasers in connection with
the Exchange Offer, except for legal expenses which are separately provided
for in clause (ix) hereof, (ix) the reasonable fees, disbursements and
expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other counsel in lieu thereof
reasonably satisfactory to the Majority Holders and the Company) as special
counsel to the Initial Purchasers in the Exchange Offer and as special counsel
representing the Holders of Registrable Securities and (x) any fees and
disbursements of the underwriters customarily required to be paid by issuers
or sellers of securities and the reasonable fees and expenses of any special
experts retained by the Company in connection with any Registration Statement,
but excluding 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
Company which 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 or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Securities" see the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof.
"Shelf Registration Event" see Section 2.2 hereof.
"Shelf Registration Event Date" see Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2.2 of this
Agreement which covers all of the Registrable Securities or all of the Private
Exchange 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.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from
time to time.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the 1933 Act.
2.1. Exchange Offer. To the extent not prohibited by any applicable
law or interpretation of the staff of the SEC, the Company shall, for the
benefit of the Holders, at the Company's cost, use its best efforts to (A)
prepare and, as soon as practicable but not later than 90 days following the
Closing Date, file with the SEC an Exchange Offer Registration Statement on an
appropriate form under the 1933 Act with respect to a proposed Exchange Offer
and the issuance and delivery to the Holders, in exchange for the Registrable
Securities, a like principal amount of Exchange Securities (other than Private
Exchange Securities), (B) cause the Exchange Offer Registration Statement to
be declared effective under the 1933 Act within 180 days of the Closing Date,
(C) keep the Exchange Offer Registration Statement effective until the closing
of the Exchange Offer and (D) cause the Exchange Offer to be consummated not
later than 210 days following the Closing Date. 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 eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder (a) is not an affiliate of the Company
within the meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer
tendering Registrable Securities acquired directly from the Company for its
own account, (c) acquired the Exchange Securities in the ordinary course of
such Holder's business and (d) has no arrangements or understandings with any
person to participate in the Exchange Offer for the purpose of distributing
the Exchange Securities) to transfer such Exchange Securities from and after
their receipt without any limitations or restrictions under the 1933 Act and
under state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(a) mail as promptly as practicable to each Holder 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 acceptance for a period
of not less than 30 calendar days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange
Offer;
(d) permit Holders to withdraw tendered Registrable
Securities at any time prior to 5:00 p.m. (New York City Time), on
the last business day of the Exchange Period, by sending to the
institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange,
and a statement that such Holder is withdrawing his election to have
such Securities exchanged;
(e) notify each Holder that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but
will not retain any rights under this Agreement (except in the case
of the Initial Purchasers and Participating Broker-Dealers as
provided herein); and
(f) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
If any Initial Purchaser determines upon the advice of its outside
counsel that it is not eligible to participate in the Exchange Offer with
respect to the exchange of Securities constituting any portion of an unsold
allotment in the initial distribution, as soon as practicable upon receipt by
the Company of a written request from such Initial Purchaser, the Company
shall, simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, issue and deliver to such Initial Purchaser in exchange (the
"Private Exchange") for the Securities held by such Initial Purchaser, a like
principal amount of debt securities of the Company on a senior subordinated
basis, that are identical (except that such securities shall bear appropriate
transfer restrictions) to the Exchange Securities (the "Private Exchange
Securities").
The Exchange Securities and the Private Exchange Securities shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture and which, in either case, has been qualified under
the TIA, or is exempt from such qualification and shall provide that the
Exchange Securities shall not be subject to the transfer restrictions set
forth in the Indenture but that the Private Exchange Securities shall be
subject to such transfer restrictions. The Indenture or such indenture shall
provide that the Exchange Securities, the Private Exchange Securities and the
Securities shall vote and consent together on all matters as one class and
that none of the Exchange Securities, the Private Exchange Securities or the
Securities will have the right to vote or consent as a separate class on any
matter. The Private Exchange Securities shall be of the same series as and the
Company will seek to cause the CUSIP Service Bureau to issue the same CUSIP
numbers for the Private Exchange Securities as for the Exchange Securities
issued pursuant to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Registrable Securities duly
tendered and not validly withdrawn pursuant to the Exchange Offer or
the Private Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by
the Company; and
(iii) issue, and cause the Trustee promptly to
authenticate and deliver Exchange Securities or Private Exchange
Securities, as the case may be, to each Holder of Registrable
Securities so accepted for exchange in a principal amount equal to
the principal amount of the Registrable Securities of such Holder so
accepted for exchange.
Interest on each Exchange Security and Private Exchange Security will
accrue from the last date on which interest was paid on the Registrable
Securities surrendered in exchange therefor or, if no interest has been paid
on the Registrable Securities, from the date of original issuance. The
Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than (i) that the Exchange Offer or the Private Exchange, or
the making of any exchange by a Holder, does not violate applicable law or any
applicable interpretation of the staff of the SEC, (ii) the due tendering of
Registrable Securities in accordance with the Exchange Offer and the Private
Exchange, (iii) that each Holder of Registrable Securities exchanged in the
Exchange Offer shall have represented that it is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act or, if it is an
affiliate, that such holder will comply with the registration and prospectus
delivery requirements of the 1933 Act to the extent applicable, that all
Exchange Securities to be received by it shall be acquired in the ordinary
course of its business and that at the time of the consummation of the
Exchange Offer it shall have no arrangement or understanding with any person
to participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the
Exchange Securities and shall have made such other representations as may be
customary or reasonably necessary under applicable SEC rules, regulations or
interpretations to render the use of Form S-4 or other appropriate form under
the 1933 Act available and (iv) that no action or proceeding shall have been
instituted or threatened in any court or by or before any governmental agency
with respect to the Exchange Offer or the Private Exchange which, in the
Company's judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer or the Private Exchange. The
Company shall 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 to contact such Holders and otherwise facilitate the tender of
Registrable Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2.1, the provisions of this Agreement shall continue to apply,
modified as necessary, solely with respect to Registrable Securities that are
Private Exchange Securities, Registrable Securities of the type described in
clause (iv) of Section 2.2 and Exchange Securities held by Participating
Broker-Dealers, and the Company shall have no further obligation to register
Registrable Securities (other than Private Exchange Securities and Securities
of the type described in clause (iv) of Section 2.2) pursuant to Section 2.2
of this Agreement.
2.2. Shelf Registration. In the event that (i) because of any changes
in law, SEC rules or regulations or applicable interpretations thereof by the
staff of the SEC, the Company reasonably determines that it is not permitted
to effect the Exchange Offer as contemplated by Section 2.1 hereof, (ii) the
Exchange Offer Registration Statement is not declared effective within 180
days following the original issue of the Registrable Securities or the
Exchange Offer is not consummated within 210 days after the original issue of
the Registrable Securities, (iii) upon the request of any of the Initial
Purchasers with respect to any Registrable Securities which it acquired
directly from the Company and, with respect to other Registrable Securities
held by it, if such Initial Purchaser is not permitted, in the opinion of
counsel to such Initial Purchaser, pursuant to applicable law or applicable
interpretations of the staff of the SEC, to participate in the Exchange Offer
and thereby receive securities that are freely tradeable without restriction
under the 1933 Act and applicable blue sky or state securities laws or (iv) if
a Holder is not permitted by applicable law to participate in the Exchange
Offer based upon advice of counsel to the effect that such Holder may not be
legally able to participate in the Exchange Offer or does not receive fully
tradeable Exchange Securities pursuant to the Exchange Offer (any of the
events specified in (i)-(iv) being a "Shelf Registration Event" and the date
of occurrence thereof, the "Shelf Registration Event Date"), then the Company
shall, at its cost:
(a) Cause to be filed as promptly as practicable after the
occurrence of such Shelf Registration Event Date, and thereafter
shall use its best efforts to cause to be declared effective as
promptly as practicable but no later than 180 days after the original
issue of the Registrable Securities (or, in the case of a request by
any Initial Purchaser, within 30 days of such request, which shall be
no earlier than 90 days after the Closing Date), a Shelf Registration
Statement relating to the offer and sale of the Registrable
Securities by the Holders from time to time in accordance with the
methods of distribution elected by the Majority Holders participating
in the Shelf Registration and set forth in such Shelf Registration
Statement.
(b) Use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of two
years (or one year in the case of a request solely by an Initial
Purchaser) from the date the Shelf Registration Statement is declared
effective by the SEC, or for such shorter period that will terminate
when all Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement
or cease to be outstanding or otherwise to be Registrable Securities
(the "Effectiveness Period"); provided, however, that the
Effectiveness Period in respect of the Shelf Registration Statement
shall be extended to the extent required to permit dealers to comply
with the applicable prospectus delivery requirements of Rule 174
under the 1933 Act and as otherwise provided herein.
(c) Notwithstanding any other provisions hereof, use its
best efforts to ensure that (i) any Shelf Registration Statement and
any amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933
Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from time
to time), does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
The Company shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Company
further agrees, if necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(b) below, and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
2.3. Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all expenses of its counsel (other than to the extent a Registration
Expense), 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.
2.4. Effectiveness. (a) The Company will be deemed not to have used
its best efforts to cause the Exchange Offer Registration Statement or the
Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if the Company voluntarily takes any
affirmative action that would, or omits to take any action which omission
would, result in any such Registration Statement not being declared effective
or in the holders of Registrable Securities covered thereby not being able to
exchange or offer and sell such Registrable Securities during that period as
and to the extent contemplated hereby, unless such action is required by
applicable law.
(b) An Exchange Offer Registration Statement pursuant to
Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the 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.
2.5. Liquidated Damages. In the event that (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the
90th calendar day following the date of original issue of the Securities, (b)
the Exchange Offer Registration Statement has not been declared effective on
or prior to the 180th calendar day following the date of original issue of the
Securities or (c) the Exchange Offer is not consummated on or prior to the
210th calendar day following the date of original issue of the Securities or a
Shelf Registration Statement is not declared effective on or prior to the
180th calendar day following the date of original issue of the Securities (or,
if a Shelf Registration Statement is required to be filed because of the
request of any Initial Purchaser, 30 days following the request by any such
Initial Purchasers that the Company file the Shelf Registration Statement)
(each such event referred to in clauses (a) through (c) above, a "Registration
Default"), the Company will pay liquidated damages to each Holder of
Registrable Securities as to which such Registration Default applies, during
the period of such Registration Default, in an amount equal to $0.192 per week
per $1,000 amount of such Registrable Securities held by such Holder until the
applicable Registration Statement is filed or declared effective, the Exchange
Offer is consummated or the Shelf Registration Statement again becomes
effective, as the case may be. All accrued liquidated damages shall be paid to
Holders in the same manner as interest payments on the Securities on
semi-annual payment dates which correspond to interest payment dates for the
Securities. Following the cure of all Registration Defaults, the accrual of
liquidated damages will cease.
3. Registration Procedures.
In connection with the obligations of the Company with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) prepare and file with the SEC a Registration Statement,
within the relevant time period specified in Section 2, on the
appropriate form under the 1933 Act, which form (i) shall be selected
by the Company, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling
Holders named therein and by any Affiliated Market Maker, (iii) shall
comply as to form in all material respects with the requirements of
the applicable form and include or incorporate by reference all
financial statements required by the SEC to be filed therewith or
incorporated by reference therein, and (iv) shall comply in all
respects with the requirements of Regulation S-T under the 1933 Act,
and use its best efforts to cause such Registration Statement to
become effective and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; and cause each Prospectus to be
supplemented if so determined by the Company or requested by the SEC,
by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provision then in force)
under the 1933 Act and comply with the provisions of the 1933 Act,
the 1934 Act and the rules and regulations thereunder applicable to
them with respect to the disposition of all securities covered by
each Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement (including sales
by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities and each Affiliate Market Maker, at
least five business days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Securities is being filed
and advising such Holders that the distribution of Registrable
Securities will be made in accordance with the method selected by the
Majority Holders participating in the Shelf Registration; (ii)
furnish to each Holder of Registrable Securities and each Affiliated
Market Maker 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 Affiliated Market Maker or underwriter may reasonably
request, including financial statements and schedules and, if so
requested, all exhibits in order to facilitate the public sale or
other disposition of the Registrable Securities; and (iii) hereby
consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Securities in
connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto and
by each Affiliated Market Maker in connection with sales or market
making activities;
(d) in the case of a Shelf Registration, 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 and each
underwriter of an underwritten offering of Registrable Securities
shall reasonably request by the time the applicable Registration
Statement is declared effective by the SEC, and do any and all other
acts and things which may be reasonably necessary or advisable to
enable each such Holder and underwriter to consummate the disposition
in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), or (ii) take any
action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities
under a Shelf Registration, each Affiliated Market Maker and any
Participating Broker-Dealer who has notified the Company that it is
utilizing the Exchange Offer Registration Statement as provided in
paragraph (f) below and, if requested by such Holder or Affiliated
Market Maker or Participating Broker-Dealer, confirm such advice in
writing promptly (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the SEC or any state
securities authority for post-effective amendments and supplements to
a Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) in the case of a
Shelf Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to the offering cease to
be true and correct in all material respects, (v) of the happening of
any event or the discovery of any facts during the period a Shelf
Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading, (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Registrable Securities or the Exchange Securities, as the case
may be, for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose and (vii) of any determination by
the Company that a post-effective amendment to such Registration
Statement would be appropriate;
(f) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution" which section shall be
reasonably acceptable to ▇.▇. ▇▇▇▇▇▇ Securities Inc. on behalf of the
Participating Broker-Dealers, and which shall contain a summary
statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any
broker-dealer that holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities and that will be the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of Exchange Securities to be received
by such broker-dealer in the Exchange Offer, whether such positions
or policies have been publicly disseminated by the staff of the SEC
or such positions or policies, in the reasonable judgment of the
Initial Purchasers and their counsel, represent the prevailing views
of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the requirements of
the 1933 Act in connection with any resale of such Exchange
Securities, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e),
without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request, (iii) hereby
consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto,
by any person subject to the prospectus delivery requirements of the
SEC, including all Participating Broker-Dealers, in connection with
the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto, for a period not
to exceed 180 days, and (iv) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order
to participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the Securities Act of 1933 in connection
with any resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Securities, the
broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the 1933 Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Company agrees, if requested by the Initial
Purchasers, to deliver to the Initial Purchasers on behalf of the
Participating Broker-Dealers upon consummation of the Exchange Offer
(i) an opinion of counsel or opinions of counsel in form and
substance reasonably satisfactory to the Initial Purchasers covering
the matters customarily covered in underwritten offerings and such
other matters as may be reasonably requested (it being agreed that
the matters to be covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in
Section 5(c) of the Purchase Agreement and such other certifications
as are customarily delivered in a public offering of debt securities
and (iii) as well as upon effectiveness of the Exchange Offer
Registration Statement, a comfort letter or comfort letters, in
customary form if permitted by Statement on Auditing Standards No. 72
of the American Institute of Certified Public Accountants (or if such
a comfort letter is not permitted, an agreed upon procedures letter
in customary form) from the Company's independent certified public
accountants (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements are,
or are required to be, included in the Registration Statement);
(g) (i) in the case of an Exchange Offer, furnish counsel
for the Initial Purchasers and (ii) in the case of a Shelf
Registration, furnish counsel for the Holders of Registrable
Securities copies of any comment letters received from the SEC or any
other request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and Prospectus
or for additional information;
(h) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at
the earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities and each Affiliated Market Maker
included within the coverage of such Shelf Registration Statement,
and each underwriter, if any, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment
thereto, including financial statements and schedules (without
documents incorporated therein by reference and all exhibits thereto,
unless requested);
(j) 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 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 or the underwriters, if any, may
reasonably request at least two business days prior to the closing of
any sale of Registrable Securities pursuant to such Shelf
Registration Statement;
(k) in the case of a Shelf Registration, upon the occurrence
of any circumstance contemplated by Sections 3(e)(v) and 3(e)(vi)
hereof as promptly as practicable after the occurrence of such event,
use its best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers
of the Registrable Securities or Participating Broker-Dealers or
Affiliated Market Makers, such Prospectus will not contain at the
time of such delivery any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
or will remain so qualified. At such time as such public disclosure
is otherwise made or the Company determines that such disclosure is
not necessary, in each case, to correct any misstatement of a
material fact or to include any omitted material fact, the Company
agrees promptly to notify each Holder of such determination and to
furnish each Holder such number of copies of the Prospectus as
amended or supplemented, as such Holder may reasonably request;
(l) in the case of a Shelf Registration, a reasonable time
prior to the filing of any Registration Statement, any Prospectus,
any amendment to a Registration Statement or supplement to a
Prospectus or any document which is to be incorporated by reference
into a Registration Statement or Prospectus after initial filing of a
Registration Statement, provide copies of such document to the
Initial Purchasers on behalf of such Holders and to each Affiliated
Market Maker; and make representatives of the Company as shall be
reasonably requested by the Holders of Registrable Securities, or the
Initial Purchasers on behalf of such Holders, or Affiliated Market
Makers available for discussion of such document;
(m) obtain a CUSIP number for all Exchange Securities,
Private Exchange Securities or Registrable Securities, as the case
may be, not later than the effective date of a Registration
Statement, and provide the Trustee with printed certificates for the
Exchange Securities, Private Exchange Securities or Registrable
Securities, as the case may be, in a form eligible for deposit with
the Depositary;
(n) (i) cause the Indenture or an indenture to be qualified
under the TIA in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be, (ii)
cooperate with the Trustee and the Holders to effect such changes to
the Indenture as may be required for the Indenture to be so qualified
in accordance with the terms of the TIA and (iii) execute, and use
its best efforts to cause the Trustee to execute, all documents as
may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable the Indenture
or an indenture to be so qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into
agreements (including underwriting agreements) and take all other
customary and appropriate actions as are reasonably requested in
order to expedite or facilitate the disposition of such Registrable
Securities, and in such connection whether or not an underwriting
agreement is entered into and whether or not the registration is an
underwritten registration, if requested by (x) any Initial Purchaser,
in the case where an Initial Purchasers holds Securities acquired by
it as part of its initial distribution and (y) other Holders of
Securities covered thereby:
(i) make such representations and warranties to
the Holders of such Registrable Securities and the
underwriters, if any, as are customarily made by issuers to
underwriters in similar underwritten offerings;
(ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and the Holders of a majority
in principal amount of the Registrable Securities being
sold) addressed to each selling Holder and the underwriters,
if any, covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings
and such other matters as may be reasonably requested by
such Holders and underwriters (it being agreed that the
matters to be covered by such opinion may be subject to
customary qualifications and exceptions);
(iii) obtain "cold comfort" letters and updates
thereof from the Company's independent certified public
accountants (and, if necessary, any other independent
certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which
financial statements are, or are required to be, included in
the Registration Statement) addressed to the underwriters,
with copies to each of the selling Holders of Registrable
Securities, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with similar
underwritten offerings in accordance with Statement on
Auditing Standards No. 72 of the American Institute of
Certified Public Accounts;
(iv) enter into a securities sales agreement with
the Holders and an agent of the Holders providing for, among
other things, the appointment of such agent for the selling
Holders for the purpose of soliciting purchases of
Registrable Securities, which agreement shall be in form,
substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to said Section or, at the request of
any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and
(vi) deliver such documents and certificates as may
be reasonably requested and as are customarily delivered in
similar offerings to the Holders of a majority in principal
amount of the Registrable Securities being sold and the
managing underwriters, if any.
The above shall be done at each closing under any underwriting or
similar agreement or as and to the extent required thereunder.
(p) in the case of a Shelf Registration or if a Prospectus
is required to be delivered by any Participating Broker-Dealer in the
case of an Exchange Offer, make reasonably available for inspection
by representatives of the Holders of the Registrable Securities, any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement, any Participating Broker-Dealer and any
counsel or accountant retained by any of the foregoing (collectively,
the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent
corporate documents and properties of the Company (collectively, the
"Records") reasonably necessary to enable such persons to exercise
any applicable due diligence responsibilities, and cause the
respective officers, directors, employees, and any other agents of
the Company to supply all information reasonably requested by any
such representative, underwriter, special counsel or accountant in
connection with a Registration Statement, and make such
representatives of the Company available for discussion of such
documents as shall be reasonably requested by the Initial Purchasers;
provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Initial Purchasers by
▇.▇. ▇▇▇▇▇▇ Securities Inc. and on behalf of the other parties, by
one counsel designated by the holders of a Majority of the
Registrable Securities. Records which the Company determines, in good
faith, to be confidential and any records which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or
correct a material misstatement or omission in such Registration
Statement or is otherwise required by law, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or is necessary in connection with any
action, suit or proceeding or (iii) the information in such Records
has been made generally available to the public. Each selling Holder
of such Registrable Securities and each such Participating
Broker-Dealer will be required to agree in writing that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such
is made generally available to the public. Each selling Holder of
such Registrable Securities and each such Participating Broker-Dealer
will be required to further agree in writing that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the
Company at its expense to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(q) (i) in the case of an Exchange Offer Registration
Statement a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Initial Purchasers or counsel to the Holders of Registrable
Securities and make such changes in any such document prior to the
filing thereof as the Initial Purchasers to counsel to the Holders of
Registrable Securities and may reasonably request and, except as
otherwise required by applicable law, nor file any such document in a
form to which the Initial Purchasers on behalf of the Holders of
Registrable Securities and counsel to Holders of Registrable
Securities shall not have previously been advised and furnished a
copy of or to which the Initial Purchasers on behalf of the Holders
of Registrable Securities shall reasonably object and make the
representatives of the Company available for discussion of such
documents as shall be reasonably requested by the Initial Purchasers,
and
(ii) in the case of a Shelf Registration, a reasonable time
prior to filing any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf Registration
Statement or amendment or supplement to such Prospectus, provide
copies of such document to the Holders of Registrable Securities, to
the Initial Purchasers, to counsel on behalf of the Holders and to
the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any, make such changes in any such
document prior to the filing thereof as the Initial Purchasers, the
counsel to the Holders or the underwriter or underwriters reasonably
request and not file any such document in a form to which the
Majority Holders, the Initial Purchasers on behalf of the Holders of
the Registrable Securities, counsel to the Holders of Registrable
Securities or any underwriter shall reasonably object, and make the
representatives of the Company available for discussion of such
document as shall be reasonably requested by the Holders of
Registrable Securities, the Initial Purchasers on behalf of such
Holders, or any underwriter;
(r) in the case of a Shelf Registration, use its best
efforts to cause all Registrable Securities to be listed on any
securities exchange on which similar debt securities issued by the
Company are then listed if requested by the Majority Holders, or if
requested by the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any;
(s) in the case of a Shelf Registration, use its best
efforts to cause the Registrable Securities to be rerated by the
appropriate rating agencies, if so requested by the Majority Holders,
or if requested by the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any;
(t) comply with all applicable rules and regulations of the
SEC so long as any provision of this Agreement shall be applicable
and make available to its security holders an earning statement
satisfying the provisions of Section 11(a) of the 1933 Act and Rule
158 thereunder (or any similar rule promulgated under the ▇▇▇▇ ▇▇▇)
no later than the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal
quarter of the Company after the effective date of a Registration
Statement, which statement shall cover said 12-month periods;
(u) cooperate and assist in any filings required to be made
with the NASD and, in the case of a Shelf Registration, in the
performance of any due diligence investigation by any underwriter and
its counsel (including any "qualified independent underwriter" that
is required to be retained in accordance with the rules and
regulations of the NASD); and
(v) upon consummation of an Exchange Offer or a Private
Exchange, if requested by the Trustee, obtain a customary opinion of
counsel to the Company addressed to the Trustee for the benefit of
all Holders of Registrable Securities participating in the Exchange
Offer or Private Exchange, and which includes an opinion that (i) the
Company has duly authorized, executed and delivered the Exchange
Securities and/or Private Exchange Securities, as applicable and the
related indenture, and (ii) each of the Exchange Securities and
related indenture constitute a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its
respective terms (in each case with customary exceptions).
The Company may (as a condition to such Holder's participation in the
Shelf Registration) require each Holder of Registrable Securities to furnish
to the Company such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities for inclusion in
any Shelf Registration Statement or Prospectus included therein as the Company
may from time to time reasonably request in writing. The Company shall have no
obligation to register under the 1933 Act the Registrable Securities of a
seller who so fails to furnish such information within a reasonable time after
receiving such request. Each Holder as to which any Shelf Registration is
being effected agrees to furnish to the Company all information with respect
to such Holder necessary to make the information previously furnished to the
Company by such Holder not materially misleading.
In the case of a Shelf Registration Statement, each Holder and each
Affiliated Market Maker agrees that, upon receipt of any notice from the
Company of the occurrence of a circumstance contemplated by Sections 3(e)(v)
and 3(e)(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such
Person's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at its expense) all copies in such
Person's possession of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of such Registrable
Securities included in such offering and shall be acceptable to the Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
4. Indemnification; Contribution.
(a) In connection with any Registration Statement, the
Company agrees to indemnify and hold harmless the Initial Purchasers, each
Holder, each Participating Broker-Dealer, each person who participates as an
underwriter (any such person being an "Underwriter") and each Person, if any,
who controls any Holder or Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto)
pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided, that (subject to Section 4(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by any
indemnified party), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that the indemnity agreement of this Section 4 shall not
apply to any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Company by the Holder or Underwriter expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto); provided, further, that the Company shall
not be liable to any such Holder, Participating Broker-Dealer or controlling
person, with respect to any untrue statement or alleged untrue statement or
omission or alleged omission in any preliminary Prospectus to the extent that
any such loss, liability, claim, damage or expense of any Holder,
Participating Broker-Dealer or controlling person results from the fact that
such Holder or Participating Broker-Dealer sold Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the final Prospectus as then amended or supplemented if the
Company had previously furnished copies thereof to such Holder or
Participating Broker-Dealer and the loss, liability, claim, damage or expense
of such Holder, Participating Broker-Dealer or controlling person results from
an untrue statement or omission of a material fact contained in the
preliminary Prospectus which was corrected in the final Prospectus. Any
amounts advanced by the Company to an indemnified party pursuant to this
Section 4 as a result of such losses shall be returned to the Company if it
shall be finally determined by such a court in a judgment not subject to
appeal or final review that such indemnified party was not entitled to
indemnification by the Company.
(b) Each Holder severally, but not jointly, agrees to
indemnify and hold harmless the Company, the Initial Purchasers, each
Underwriter and the other selling Holders, and each of their respective
directors and officers, and each Person, if any, who controls the Company, the
Initial Purchasers, each Underwriter or any other selling Holder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 4(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in
reliance upon and in conformity with written information with respect to such
Holder furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto); provided, however, that no such Holder shall
be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to
such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder,
but failure so to notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of the
indemnity agreement of this Section 4. An indemnifying party may participate
at its own expense in the defense of such action. If an indemnifying party so
elects within a reasonable time after receipt of such notice, an indemnifying
party, severally or jointly with any other indemnifying parties receiving such
notice, may assume the defense of such action with counsel chosen by it and
reasonably acceptable to the indemnified parties defendant (or target of) in
such action, provided, however, that if (i) representation of such indemnified
party by the same counsel would present a conflict of interest or (ii) the
actual or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and any such indemnified
party reasonably determines that there may be legal defenses available to such
indemnified party which are different from or in addition to those available
to such indemnifying party, then in the case of clauses (i) or (ii) of this
Section 4(c) such indemnifying party and counsel for each indemnifying party
or parties shall not be entitled to assume such defense. If an indemnifying
party is not entitled to assume the defense of such action as a result of the
proviso to the preceding sentence, counsel for each indemnified party or
parties shall be entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of such action, in
accordance with and as permitted by the provisions of this paragraph, such
indemnifying parties shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such
action. In no event shall the indemnifying party or parties be liable for the
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes
an unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding 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, an indemnifying party
shall not be liable for any settlement of the nature contemplated by Section
4(a)(ii) effected without its consent if such indemnifying party (i)
reimburses such indemnified party in accordance with such request to the
extent it considers such request to be reasonable and (ii) provides written
notice to the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand, and the Holders and the Initial Purchasers on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative fault of the Company on the one hand and the Holders and
the Initial Purchasers on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Holders or the Initial Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 4
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
which does not take account of the equitable considerations referred to above
in this Section 4(e). The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 4(e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 4(e), no Initial
Purchaser shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities sold by it were offered
exceeds the amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4(e), each Person, if any, who controls
an Initial Purchaser or Holder within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution
as such Initial Purchaser or Holder, and each director of the Company and each
Person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
5. Additional Agreements with Respect to Affiliated Market Makers.
5.1. From and after the effectiveness of any Registration Statement,
the Company shall, for so long as any Securities, Exchange Securities or
Private Exchange Securities are outstanding and any Affiliated Market Maker is
required by applicable law in the judgment of counsel to the Initial
Purchasers, after consultation with counsel to the Company to deliver a
prospectus in connection with sales or market making activities, periodically
amend each Registration Statement or amend each Prospectus covering
Securities, Exchange Securities or Private Exchange Securities to reflect the
occurrence of any fact or information becoming known to the Company that
should be set forth in an amendment to any such Registration Statement or in a
supplement to any such Prospectus so that each such Prospectus, when delivered
by an Affiliated Market Maker to a purchaser in connection with sales or
market marking activities of such Affiliated Market Maker, will comply with
applicable law.
5.2. Prior to filing any amendment to any such Registration Statement
or any supplement to any such Prospectus, the Company shall furnish a
reasonable period of time prior to the proposed filing thereof to each
Affiliated Market Maker and their counsel copies of all such documents
proposed to be filed, which documents shall be subject to review. The Company
shall provide to each Affiliated Market Maker and such counsel such reasonable
number of copies of each filed amendment or supplement as shall be requested
and hereby consents to the use of such Prospectus or any amendment or
supplement thereto by each Affiliated Market Maker in connection with sales or
market making activities with respect to the Securities, Exchange Securities
or Private Exchange Securities.
5.3. In connection with any such sales or market making activities as
contemplated by this Section 5, the Company agrees to indemnify each
Affiliated Market Maker, and if applicable to contribute to such Affiliated
Market Maker and such Affiliated Market Maker agrees to indemnify the Company,
and if applicable to contribute to the Company, in each case in a manner
substantially identical to that specified in Section 4 hereof.
5.4. In the case of a Registration Statement, each Affiliated Market
Maker agrees that, upon receipt of any notice from the Company of the
occurrence of a circumstance contemplated by the following:
(i) the happening of any event or the discovery of any
facts during the period a 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 in order to make the statements therein not misleading; or
(ii) the receipt by the Company of any notification with
respect to the suspension of the qualification of the Exchange
Securities, for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, such Affiliated
Market Maker will forthwith discontinue disposition of such Exchange
Securities, pursuant to a Registration Statement until such Person's
receipt of the copies of the supplemented or amended Prospectus in
accordance with the following:
that as promptly as practicable after the occurrence of an event
contemplated by (i) and (ii) of this Section 5.4, the Company
shall use its best efforts to prepare a supplement or
post-effective amendment to the Registration Statement or the
related Prospectus or any document incorporated therein by
reference or file any other required document so that, as
thereafter delivered to the purchasers of the Exchange Securities,
such Prospectus will not contain at the time of such delivery any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading or will
remain so qualified.
Further, if so directed by the Company, such Affiliated Market Maker
will deliver to the Company (at its expense) all copies in such Person's
possession of the Prospectus covering such Exchange Securities current at the
time of receipt of such notice.
6. Miscellaneous.
6.1. Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act and any
Registrable Securities remain outstanding, the Company will file the reports
required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of
the 1934 Act and the rules and regulations adopted by the SEC thereunder. If
the Company ceases to be so required to file such reports, the Company
covenants that it will upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and it will take such further action
as any Holder of Registrable Securities may reasonably request, and (c) take
such further action that is reasonable in the circumstances, in each case, to
the extent required from time to time to enable such Holder to sell its
Registrable Securities without registration under the 1933 Act within the
limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
6.2. No Inconsistent Agreements. The Company has not entered into and
the Company will not after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way conflict
with the rights granted to the holders of the Company's other issued and
outstanding securities under any such agreements.
6.3. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has 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 departure.
6.4. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions of
this Section 6.4, which address initially shall be the address set forth in
Section 12 of the Purchase Agreement with respect to the Initial Purchasers;
and (b) if to the Company, initially at the Company's address set forth in
Section 12 of the Purchase Agreement, and thereafter at such other address of
which notice is given in accordance with the provisions of this Section 6.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
6.5. Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed
to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such person shall be entitled to receive the benefits hereof.
6.6. Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Company, on
the one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand and the Initial 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 hereunder.
6.7. Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Section 2.1
through 2.4 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 would 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
Company's obligations under Section 2.1 through 2.4 hereof.
6.8. Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities, the Company will not, and will cause
its "affiliates" (as such term is defined in Rule 144(a)(1) under the ▇▇▇▇
▇▇▇) not to, resell any Securities which are "restricted securities" (as such
term is defined under Rule 144(a)(3) under the ▇▇▇▇ ▇▇▇) that have been
reacquired by any of them and shall immediately upon any purchase of any such
Securities submit such Securities to the Trustee for cancellation.
6.9. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6.10. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
6.11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
6.12. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
▇▇▇▇▇▇ SCIENTIFIC INTERNATIONAL INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, General
Counsel and Secretary
Confirmed and accepted as of the date first above written:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
CREDIT SUISSE FIRST BOSTON CORPORATION,
DEUTSCHE BANK SECURITIES INC.
BY: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President