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EXHIBIT 4.12
REGISTRATION RIGHTS AGREEMENT
Dated as of December 22, 1999
by and among
THERMADYNE HOLDINGS CORPORATION,
THERMADYNE MFG. LLC,
DLJ MERCHANT BANKING PARTNERS II, L.P.,
DLJ MERCHANT BANKING PARTNERS ▇▇-▇, ▇.▇.,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇.▇.,
▇▇▇ DIVERSIFIED PARTNERS, L.P.,
DLJ DIVERSIFIED PARTNERS-A, L.P.,
DLJMB FUNDING II, INC.,
DLJ MILLENNIUM PARTNERS, L.P.,
DLJ MILLENNIUM PARTNERS-A, L.P.,
DLJ EAB PARTNERS, L.P.,
DLJ ESC II L.P.
and
DLJ FIRST ESC, L.P.
relating to the registration of
Junior Subordinated Notes due 2009 of Thermadyne Mfg. LLC
and
Warrants for the Purchase of Shares of Common Stock of
Thermadyne Holdings Corporation
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This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of December 22, 1999, by and among Thermadyne Mfg. LLC, a
Delaware limited liability company (the "COMPANY"), Thermadyne Holdings
Corporation, a Delaware corporation ("PARENT"), DLJ Merchant Banking Partners
II, L.P., DLJ Merchant Banking Partners ▇▇-▇, ▇.▇., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇,
▇.▇., ▇▇▇ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJMB
Funding II, Inc., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A,
L.P., DLJ EAB Partners, L.P., DLJ ESC II L.P. and DLJ First ESC, L.P. (each a
"DLJ BUYER" and, collectively, the "DLJ BUYERS" and sometimes referred to as the
"BUYERS"), each of whom has agreed to purchase the Company's Junior Subordinated
Notes due 2009 (the "NOTES") and Warrants for the Purchase of Shares of Common
Stock of Parent (the "WARRANTS") pursuant to the Subscription Agreement (as
defined below).
This Agreement is made pursuant to the Subscription Agreement, dated
December 22, 1999 (the "SUBSCRIPTION AGREEMENT"), by and among the Company,
Parent and the Buyers. In order to induce the Buyers to purchase the Notes and
the Warrants, the Company and Parent have agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the obligations of the Buyers set forth in Section 2 of the
Subscription Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture, attached as Exhibit A
to the Notes (the "INDENTURE").
The parties hereby agree as follows:
SECTION 1. (a) Definitions.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACCRETED VALUE: Shall have the meaning assigned to it in the Indenture.
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
AFFILIATED MARKET MAKER: A Broker-Dealer who is deemed to be an
Affiliate of the Company and/or Parent and who is, therefore, required to
deliver a prospectus in connection with sales or market making activities.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
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COMMON STOCK: The common stock, par value $0.01 per share, of Parent.
COMMISSION: The Securities and Exchange Commission.
DEMAND REGISTRATION: As defined in Section 4 hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXPIRATION DATE: 5:00 p.m. New York City time on December 15, 2009.
NOTE REGISTRATION STATEMENT: Any registration statement of the Company
relating to the registration of Transfer Restricted Notes, in each case, (i)
that is filed pursuant to the provisions of this Agreement and (ii) including
the Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material incorporated
by reference therein.
PARENT SECURITIES: The Common Stock and securities convertible into or
exchangeable for Common Stock and options, warrants or other rights to acquire
Common Stock or any other equity security issued by Parent.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
PUBLIC OFFERING: An underwritten public offering of Transfer Restricted
Securities of the Company or Parent pursuant to an effective registration
statement under the Act.
REGISTRATION STATEMENT: Any Note Registration Statement or Warrant
Registration Statement.
RULE 144: Rule 144 promulgated under the Act.
SECURITIES: shall mean the Notes, the Warrants and the Warrant Shares.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED NOTES: Each Note, until the earliest to occur of
(a) the date on which such Note has been disposed of in accordance with a Note
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Registration Statement, or (b) the date on which such Note is distributed to the
public pursuant to Rule 144 under the Act.
TRANSFER RESTRICTED SECURITIES: Each Transfer Restricted Note and each
Transfer Restricted Warrant Security.
TRANSFER RESTRICTED WARRANT SECURITIES: (a) Each Warrant and Warrant
Share until the earlier to occur of (i) the date on which such Warrant or
Warrant Share has been disposed of in accordance with a Warrant Registration
Statement or the date on which such Warrant Share is issued upon exercise of a
Warrant in accordance with a registration statement filed under the Act and (ii)
the date on which such Warrant or Warrant Share is distributed to the public
pursuant to Rule 144 under the Act.
WARRANT AGENT: The warrant agent, if any, with respect to the Warrants.
WARRANT SHARE: The Common Stock of Parent issuable on the exercise of
the Warrants.
WARRANT REGISTRATION STATEMENT: Any registration statement of Parent
relating to the registration of Transfer Restricted Warrant Securities,
including any Warrant Shelf Registration Statement, in each case, (i) that is
filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
(b) Other Definitions.
Defined in
Term Section
---- ----------
Applicable Holdback Period 6
Demand Registration 4(a)
Demand Registration Reguest 3(a)
Holder 2
Incidental Registration 5(a)
indemnified party 10(c)
indemnifying person 10(c)
Inspectors 8(a)
Losses 10(a)
Maximum Offering Size 4(e)
Recommencement Date 8(c)
Records 8(a)
Selling Holders 4(a)
Suspension Notice 8(c)
Warrant Shelf Registration Statement 7(a)
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SECTION 2. Holders.
A person is deemed to be a holder of Transfer Restricted Securities
whenever such person is the record holder of Transfer Restricted Securities. As
used herein, "HOLDER" refers to the holder of a Transfer Restricted Note or a
Transfer Restricted Warrant Security, or both, as the context may require.
SECTION 3. Demand Registration Rights. (a) Notes: At any time after
Parent has filed its annual report on Form 10-K for the year ended December 31,
1999, if the Company or Parent, as the case may be, shall receive a written
request (a "DEMAND REGISTRATION REQUEST") from the Holders of 50% or more of the
aggregate Accreted Value of Transfer Restricted Notes then outstanding to effect
the registration of such Transfer Restricted Notes, then the Company or Parent,
as the case may be, shall effect the registration under the Act of such Transfer
Restricted Notes in accordance with Section 4 hereof.
(b) Warrant Securities: At any time after Parent has filed its annual
report on Form 10-K for the year ended December 31, 1999 if Parent shall receive
a Demand Registration Request from the Holders of 50% or more of the aggregate
Transfer Restricted Warrant Securities then outstanding to effect the
registration of such Transfer Restricted Warrant Securities, then Parent shall
effect the registration under the Act of such Transfer Restricted Warrant
Securities in accordance with Section 4 and Section 7 hereof.
SECTION 4. Demand Registration. (a) If the Company or Parent, as the
case may be shall receive a Demand Registration Request from the Holders (the
"SELLING HOLDERS") of Transfer Restricted Securities that the Company or Parent,
as the case may be, effect the registration under the Act of all or a portion of
such Selling Holders' Transfer Restricted Securities, and specifying the
intended method of disposition thereof, then the Company or Parent, as the case
may be, shall promptly give written notice of such requested registration (a
"DEMAND REGISTRATION") at least 30 days prior to the anticipated filing date of
the registration statement relating to such Demand Registration to all Holders
and thereupon will use its best efforts to effect, as expeditiously as possible,
the registration under the Act of:
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(i) the Transfer Restricted Securities which the Company or
Parent, as the case may be, has been so requested to register by the
Selling Holders, then held by such Selling Holders; and
(ii) subject to the restrictions set forth in Section 4(e),
all other Transfer Restricted Securities of the same type as that to
which the request by the Selling Holders relates which any other person
entitled to request Parent to effect an Incidental Registration (as
such term is defined in Section 5) pursuant to Section 5 has requested
Parent to register by written request received by Parent within 15 days
after the receipt by such Holders of such written notice given by
Parent,
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Transfer Restricted Securities so
to be registered; provided that, (A) the Company shall not be obligated to
effect more than two Demand Registrations with respect to Transfer Restricted
Notes, and (B) Parent shall not be obligated to effect more than one Demand
Registration with respect to Transfer Restricted Warrant Securities in addition
to its obligations under Section 7; provided, further that the Company shall not
be obligated to effect any shelf registration of Transfer Restricted Notes and
neither the Company nor Parent shall be obligated to effect a Demand
Registration unless the aggregate proceeds expected to be received from the sale
of the Transfer Restricted Securities to be included in such Demand
Registration, in the reasonable opinion of DLJ Merchant Banking Partners II,
L.P. exercised in good faith, equals or exceeds $15,000,000. In no event will
the Company or Parent be required to effect more than one Demand Registration
within any four-month period.
(b) Promptly after the expiration of the 15-day period referred to in
Section 4(a)(ii) hereof, Parent will notify all of the Selling Holders of the
other Holders who have requested to include their Transfer Restricted Warrant
Securities in the registration and the number of Transfer Restricted Securities
requested to be included therein. The Selling Holders requesting a registration
under this Section 4 may, at any time prior to the effective date of the
registration statement relating to such registration, revoke such request,
without liability to any of the other Holders, by providing a written notice to
the Company or Parent, as the case may be, revoking such request, in which case
such request, so revoked, shall be considered an effected Demand Registration
unless the Selling Holders reimburse the Company or Parent, as the case may be,
for all costs incurred by the Company or Parent, as the case may be, in
connection with such registration, or unless such revocation arose out of the
fault of the Company or Parent, as the case may be, in which case such request
shall not be considered an effected Demand Registration.
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(c) The Company or Parent, as the case may be, will pay all
registration expenses as set forth in Section 9 hereof.
(d) A registration made pursuant to this Section 4 shall not be deemed
to have been effected (i) unless the registration statement relating thereto (A)
has become effective under the Act and (B) has remained effective for a period
of at least 180 days (or such shorter period in which all Transfer Restricted
Securities of the Holders included in such registration have actually been sold
thereunder); provided that if after any registration statement filed pursuant to
this Section 4 becomes effective (x) such registration statement is interfered
with by any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court and (y) less than 75% of the
Transfer Restricted Securities included in such registration statement has been
sold thereunder, such registration statement shall not be considered an effected
Demand Registration or (ii) if the Maximum Offering Size (as defined below) is
reduced in accordance with Section 5.01(e) or 5.01(f) such that less than
66 2/3% of the Transfer Restricted Securities of the Selling Holders sought to
be included in such registration are included.
(e) If a Demand Registration involves an underwritten Public Offering
and the managing underwriter shall advise the Company or Parent, as the case may
be, and the Selling Holders that, in its view, (i) the number of Transfer
Restricted Securities requested to be included in such registration (including
any securities which the Company or Parent, as the case may be, proposes to be
included which are not Transfer Restricted Securities) or (ii) the inclusion of
some or all of the Transfer Restricted Securities owned by the Holders, in any
such case, exceeds the largest number of securities which can be sold without
having an adverse effect on such offering, including the price at which such
securities can be sold (the "MAXIMUM OFFERING SIZE"), the Company or Parent, as
the case may be, will include in such registration, in the priority listed
below, up to the Maximum Offering Size:
(i) first, the Transfer Restricted Securities requested to be
included in such registration pursuant to Section 4(a)(i) and pursuant
to Section 5 by the Holders, allocated (if necessary) pro rata among
such Holders on the basis of the relative number of Transfer Restricted
Securities each such Holder has requested to be included in such
registrations; and
(ii) second, securities to be sold for the account of other
persons (including the Company or Parent, as the case may be), with
such priorities
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among them as the Company or Parent, as the case may be, shall
determine.
(f) Registration Statement Form. Registrations under this Section 4
shall be on such appropriate registration form of the Commission (i) as shall be
selected by the Company or Parent, as the case may be, and as shall be
reasonably acceptable to the Holders and (ii) as shall permit the disposition of
Transfer Restricted Securities in accordance with the method or methods of
disposition intended on the part of the Holders. Notwithstanding anything herein
to the contrary, if, pursuant to a registration pursuant to this Section 4, the
Company or Parent, as the case may be, proposes to effect registration by filing
of a registration statement on Form S-3 (or any successor or similar short-form
registration statement) and any managing underwriter shall advise the Company or
Parent, as the case may be, in writing that, in its opinion, the use of another
form of registration statement is of material importance to the success of such
proposed offering, then such registration shall be effected on such other form.
SECTION 5. Incidental Registration. (a) If Parent proposes to register
any Parent Securities under the Act (other than a registration (A) on Form S-8
or S-4 or any successor or similar forms, (B) relating to Common Stock issuable
upon exercise of employee stock options or in connection with any employee
benefit or similar plan of Parent or (C) in connection with a direct or indirect
acquisition by Parent of another company, whether or not for sale for its own
account), it will each such time, subject to the provisions of Section 5(b),
give prompt written notice at least 40 days prior to the anticipated filing date
of the registration statement relating to such registration to each Holder of
Transfer Restricted Warrant Securities, which notice shall set forth such
Holder's rights under this Section 5 and shall offer such Holders the
opportunity to include in such registration statement such number of Transfer
Restricted Warrant Securities as each such Holder may request (an "INCIDENTAL
REGISTRATION"). Upon the written request of any such Holder made within 20 days
after the receipt of notice from Parent (which request shall specify the number
of Transfer Restricted Warrant Securities intended to be disposed of by such
Holder), Parent will use its best efforts to effect the registration under the
Act of all Transfer Restricted Warrant Securities which Parent has been so
requested to register by such Holders, to the extent required to permit the
disposition of the Transfer Restricted Warrant Securities so to be registered;
provided that (I) if such registration involves a Public Offering, all such
Holders requesting to be included in Parent's registration must sell their
Transfer Restricted Warrant Securities to the underwriters on the same terms and
conditions as apply to Parent and (II) if, at any time after giving written
notice of its intention to register any Parent Securities pursuant to this
Section 5 and prior to the effective date of the registration statement filed in
connection with such registration, Parent shall determine for any reason not to
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register such securities, Parent shall give written notice to all such Holders
of Transfer Restricted Warrant Securities and, thereupon, shall be relieved of
its obligation to register any Transfer Restricted Warrant Securities in
connection with such registration. No registration effected under this Section 5
shall relieve Parent of its obligations to effect a Demand Registration to the
extent required by Section 4. Parent will pay all Registration Expenses in
connection with each registration of Transfer Restricted Warrant Securities
requested pursuant to this Section 5.
(b) If a registration pursuant to this Section 5 involves a Public
Offering (other than in the case of a Public Offering requested under Section 3
by the Holders in a Demand Registration, in which case the provisions with
respect to priority of inclusions in such offering as set forth in Section 4(e)
shall apply) and the managing underwriter advises Parent that, in its view, the
number of Parent Securities and Transfer Restricted Warrant Securities that
Parent and Holders intend to include in such registration exceeds the Maximum
Offering Size, Parent will include in such registration, in the following
priority, up to the Maximum Offering Size:
(i) first, so much of the Parent Securities proposed to be
registered by Parent as would not cause the offering to exceed the
Maximum Offering Size;
(ii) second, all Transfer Restricted Warrant Securities
requested to be included in such registration by the Holders pursuant
to this Section 5 (allocated, if necessary for the offering not to
exceed the Maximum Offering Size, pro rata among such Holders on the
basis of the relative number of Transfer Restricted Warrant Securities
so requested to be included in such registration); and
(iii) third, securities to be sold for the account of other
persons, with such priorities among them as Parent shall determine.
SECTION 6. Holdback Agreements. If any registration of Transfer
Restricted Securities shall be in connection with a Public Offering, the Holders
agree not to effect any public sale or distribution, including any sale pursuant
to Rule 144, or any successor provision, under the Act, of any Transfer
Restricted Securities, and not to effect any such public sale or distribution of
any other securities of the Company or Parent or of any stock convertible into
or exchangeable or exercisable for any securities of the Company or Parent (in
each case, other than as part of such Public Offering) during the 14 days prior
to the effective date of such registration statement (except as part of such
registration) or during the period after such effective date equal to the lesser
of (i) such period of
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time as agreed between such managing underwriter, the Company and Parent and
(ii) 180 days (such lesser period, the "APPLICABLE HOLDBACK PERIOD").
SECTION 7. Warrant Shelf Registration. (a) If any Warrants are included
in a Demand Registration, Parent shall prepare and cause to be filed with the
Commission on or prior to 30 days (or, if the Warrants are not at such time of
the same class as securities listed on a national securities exchange or quoted
in a U.S. automated system (as determined pursuant to Rule 144A under the Act,
90 days)) after the date of the Demand Registration Request, pursuant to Rule
415 under the Act, a Registration Statement (each a "WARRANT SHELF REGISTRATION
STATEMENT") on the appropriate form relating to resales of Transfer Restricted
Warrant Securities by the Holders thereof. Parent shall use its best efforts to
cause the Warrant Shelf Registration Statement to be declared effective by the
Commission on or before 90 days (or, if the Warrants are not at such time of the
same class as securities listed on a national securities exchange or quoted in a
U.S. automated system (as determined pursuant to Rule 144A under the Act, 180
days), after the date the Demand Registration is effected.
To the extent necessary to ensure that the Warrant Shelf Registration
Statement is available for sales of Transfer Restricted Warrant Securities by
the Holders thereof entitled to the benefit of this Section 7(a), Parent shall
use its best efforts to keep any Warrant Shelf Registration Statement required
by this Section 7(a) continuously effective, supplemented, amended and current
as required by and subject to the provisions of Section 8(b) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, until
the earlier of (i) two years following the first date as of which no Warrants
remain outstanding and (ii) if all of the Warrants expire unexercised, the
Expiration Date; provided that such obligation shall expire before such date if
Parent delivers to the Warrant Agent (if there is a Warrant Agent at such time,
or, if there is no Warrant Agent, to the Holders) a written opinion of counsel
to Parent (which opinion of counsel shall be satisfactory to Parent) that all
Holders (other than Affiliates of Parent) of Warrants and Warrant Shares may
resell the Warrants and the Warrant Shares without registration under the Act
and without restriction as to the manner, timing or volume of any such sale and
instruct the Warrant Agent to (or if there is no Warrant Agent, Parent shall)
remove the private placement legend from all Warrants and Warrant Shares;
provided, further, that notwithstanding the foregoing, any Affiliate of Parent
may, with notice to Parent, require Parent to keep the Registration Statement
continuously effective for resales by such Affiliate for so long as such
Affiliate holds Warrants or Warrant Shares, including as a result of any
market-making activities or other trading activities of such Affiliate.
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(b) Provision by Holders of Certain Information in Connection with the
Warrant Shelf Registration Statement. No Holder of Transfer Restricted Warrant
Securities may include any of its Transfer Restricted Warrant Securities in any
Warrant Shelf Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to Parent in writing the information specified in Item 507
or 508 of Regulation S-K, as applicable, of the Act for use in connection with
any Warrant Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. Each Selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to Parent by such Holder not materially misleading.
Parent will promptly prepare and file a Prospectus supplement including
such information provided by any Holder to the extent that such Holder
reasonably determines that a Prospectus supplement is required in connection
with such Holder's sale of Transfer Restricted Warrant Securities under the
Warrant Shelf Registration Statement and so notifies Parent.
(c) Parent shall have no registration obligations under this Agreement
with respect to any Warrants or Warrant Shares except as provided in Section
3(b) or this Section 7. References herein to the Warrants, Warrant Shares and
Transfer Restricted Warrant Securities shall only refer to such securities to
the extent that Parent has registration obligations therefor.
SECTION 8. Registration Procedures. (a) Whenever Holders request that
any Transfer Restricted Securities be registered pursuant to Sections 3, 4 or 5,
the Company or Parent, as the case may be, will, subject to the provisions of
such Sections, use its best efforts to effect the registration and the sale of
such Transfer Restricted Securities in accordance with the intended method of
disposition thereof as quickly as practicable, and in connection with any such
request:
(i) The Company or Parent, as the case may be, will as
expeditiously as possible prepare and file with the Commission a
registration statement on any form, subject to Section 4(f), for which
the Company or Parent, as the case may be, then qualifies or which
counsel for the Company or Parent, as the case may be, shall deem
appropriate and which form shall be available for the sale of the
Transfer Restricted Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use
its best efforts to cause such filed registration statement to become
and remain effective for a period of not less than 180 days.
(ii) The Company or Parent, as the case may be, will, if
requested, prior to filing a registration statement or prospectus or
any
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amendment or supplement thereto, furnish to participating Holder and
each underwriter, if any, of the Transfer Restricted Securities covered
by such registration statement copies of such registration statement as
proposed to be filed, and thereafter the Company or Parent, as the case
may be, will furnish to such Holder and underwriter, if any, such
number of copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein), the prospectus included
in such registration statement (including each preliminary prospectus)
and such other documents as such Holder or underwriter may reasonably
request in order to facilitate the disposition of the Transfer
Restricted Securities owned by such Holder.
(iii) After the filing of the registration statement, the
Company or Parent, as the case may be, will promptly notify each Holder
holding Transfer Restricted Securities covered by such registration
statement of any stop order issued or threatened by the Commission and
take all reasonable actions required to prevent the entry of such stop
order or to remove it if entered.
(iv) The Company or Parent, as the case may be, will use its
best efforts to (A) register or qualify the Transfer Restricted
Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions in the United States
as any Holder holding such Transfer Restricted Securities reasonably
(in light of such Holder's intended plan of distribution) requests and
(B) cause such Transfer Restricted Securities to be registered with or
approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company or
Parent, as the case may be, and do any and all other acts and things
that may be reasonably necessary or advisable to enable such Holder to
consummate the disposition of the Transfer Restricted Securities owned
by such Holder; provided that the Company or Parent, as the case may
be, will not be required to (1) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this paragraph (d), (2) subject itself to taxation in any such
jurisdiction or (3) consent to general service of process in any such
jurisdiction.
(v) The Company or Parent, as the case may be, will
immediately notify each Holder holding such Transfer Restricted
Securities, at any time when a prospectus relating thereto is required
to be delivered under the Act, of the occurrence of an event requiring
the preparation of a supplement or amendment to such prospectus so
that, as thereafter
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delivered to the purchasers of such Transfer Restricted Securities,
such prospectus will not contain an 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 promptly
prepare and make available to each such Holder any such supplement or
amendment.
(vi) The Holder will have the right, in its sole discretion,
to select an underwriter or underwriters in connection with any Public
Offering, which underwriter or underwriters may include any Affiliate
of DLJ Merchant Banking Partners II, L.P. In connection with any Public
Offering, the Company or Parent, as the case may be, will enter into
customary agreements (including an underwriting agreement in customary
form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of Transfer Restricted
Securities in any such Public Offering, including the engagement of a
"qualified independent underwriter" in connection with the
qualification of the underwriting arrangements with the NASD.
(vii) Upon the execution of confidentiality agreements in form
and substance satisfactory to the Company or Parent, as the case may
be, the Company or Parent, as the case may be, will make available for
inspection by any Holder and any underwriter participating in any
disposition pursuant to a registration statement being filed by the
Company or Parent, as the case may be, pursuant to this Section 8 and
any attorney, accountant or other professional retained by any such
Holder or underwriter (collectively, the "INSPECTORS"), all financial
and other records, pertinent corporate documents and properties of the
Company or Parent, as the case may be, (collectively, the "RECORDS") as
shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's or Parent's, as the
case may be, officers, directors and employees to supply all
information reasonably requested by any Inspectors in connection with
such registration statement. Records that the Company or Parent, as the
case may be, determines, in good faith, to be confidential and that it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (A) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such registration
statement or (B) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction. Each
Holder agrees 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 Company's or Parent's
securities unless and until such information is made generally
available to the public. Each Holder further agrees that it will, upon
learning that
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disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company or Parent, as the case may be,
and allow the Company or Parent, as the case may be, at its expense, to
undertake appropriate action to prevent disclosure of the Records
deemed confidential.
(viii) The Company or Parent, as the case may be, will furnish
to each such Holder and to each such underwriter, if any, a signed
counterpart, addressed to such underwriter, of (A) an opinion or
opinions of counsel to the Company or Parent, as the case may be, and
(B) a comfort letter or comfort letters from the Company's or Parent's,
as the case may be, independent public accountants, each in customary
form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as a majority of such
Holders or the managing underwriter therefor reasonably requests.
The Company or Parent, as the case may be, may require each such Holder
to promptly furnish in writing to the Company or Parent, as the case may be,
such information regarding the distribution of the Transfer Restricted
Securities as the Company or Parent, as the case may be, may from time to time
reasonably request and such other information as may be legally required in
connection with such registration.
Each such Holder agrees that, upon receipt of any notice from the
Company or Parent, as the case may be, of the happening of any event of the kind
described in Section 8(a)(v), such Holder will forthwith discontinue disposition
of Transfer Restricted Securities pursuant to the registration statement
covering such Transfer Restricted Securities until such Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
8(a)(v), and, if so directed by the Company or Parent, as the case may be, such
Holder will deliver to the Company or Parent, as the case may be, all copies,
other than any permanent file copies then in such Holder's possession, of the
most recent prospectus covering such Transfer Restricted Securities at the time
of receipt of such notice. In the event that the Company or Parent, as the case
may be, shall give such notice, the Company or Parent, as the case may be, shall
extend the period during which such registration statement shall be maintained
effective (including the period referred to in Section 8(a)(i)) by the number of
days during the period from and including the date of the giving of notice
pursuant to Section 8(a)(v) to the date when the Company or Parent, as the case
may be, shall make available to such Holder a prospectus supplemented or amended
to conform with the requirements of Section 8(a)(v).
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(b) Special Warrant Shelf Registration Procedures. In connection with
any Warrant Shelf Registration Statement and any related Prospectus required by
this Agreement, Parent shall:
(i) use its best efforts to keep such Warrant Shelf
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 7 of this
Agreement. Upon the occurrence of any event that would cause any such
Warrant Shelf Registration Statement or the Prospectus contained
therein (A) to contain an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not
misleading or (B) not to be effective and usable for resale of the
relevant Transfer Restricted Warrant Securities during the period
required by this Agreement, Parent shall file promptly an appropriate
amendment to such Warrant Shelf Registration Statement curing such
defect, and, if Commission review is required, use best efforts to
cause such amendment to be declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Warrant Shelf Registration Statement
as may be necessary to keep such Warrant Shelf Registration Statement
effective for the period set forth in Section 7 hereof; cause the
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act,
and to comply fully with Rules 424, 430A and 462, as applicable, under
the Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by such
Warrant Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Warrant Shelf Registration Statement
or supplement to the Prospectus;
(iii) advise each Holder who is an Affiliated Market Maker
promptly and, if requested by such person, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Warrant Shelf Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Warrant Shelf Registration Statement
or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the Warrant Shelf
Registration Statement under the Act or of the suspension by any state
securities commission of
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the qualification of the relevant Transfer Restricted Warrant
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, and (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Warrant Shelf Registration
Statement, the Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Warrant Shelf Registration
Statement in order to make the statements therein not misleading, or
that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any
time the Commission shall issue any stop order suspending the
effectiveness of the Warrant Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of
the relevant Transfer Restricted Warrant Securities under state
securities or Blue Sky laws, Parent shall use best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 8(b)(i), if any fact or event
contemplated by Section 8(b)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Warrant Shelf Registration Statement or 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
relevant Transfer Restricted Warrant Securities, the Prospectus will
not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(v) furnish to each Holder and each Affiliated Market Maker in
connection with such exchange or sale, if any, before filing with the
Commission, copies of any Warrant Shelf Registration Statement or any
Prospectus included therein or any amendments or supplements to any
such Warrant Shelf Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Warrant Shelf Registration Statement), which documents will be subject
to the review and comment of such persons in connection with such sale,
if any, for a period of at least five business days, and Parent will
not file any such Warrant Shelf Registration Statement or Prospectus or
any amendment or supplement to any such Warrant Shelf Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which such persons shall reasonably object within five
business days after
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the receipt thereof. Such person shall be deemed to have reasonably
objected to such filing if such Warrant Shelf Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading or fails to comply with the applicable requirements of the
Act;
(vi) promptly prior to the filing of any document that is to
be incorporated by reference into a Warrant Shelf Registration
Statement or Prospectus, provide copies of such document to each Holder
and each Affiliated Market Maker in connection with such exchange or
sale, if any, make Parent's representatives available for discussion of
such document and other customary due diligence matters, and include
such information in such document prior to the filing thereof as such
persons may reasonably request;
(vii) make available, at reasonable times, for inspection by
each Holder and each Affiliated Market Maker and any attorney or
accountant retained by such persons, all financial and other records,
pertinent corporate documents of Parent and cause Parent's officers,
directors and employees to supply all information reasonably requested
by any such persons, attorney or accountant in connection with such
Warrant Shelf Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its
effectiveness;
(viii) if requested by any Holders in connection with such
exchange or sale or any Affiliated Market Maker, promptly include in
any Warrant Shelf Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information
as such persons may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the relevant Transfer Restricted Warrant Securities
and the use of the Warrant Shelf Registration Statement or Prospectus
for market making activities; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after Parent is notified of the matters to be included in
such Prospectus supplement or post-effective amendment;
(ix) furnish to each Holder in connection with such exchange
or sale and each Affiliated Market Maker, without charge, at least one
copy of the Warrant Shelf Registration Statement, as first filed with
the Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
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(x) deliver to each Holder and each Affiliated Market Maker
without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
persons reasonably may request; Parent hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each selling person in connection with the offering and the
sale of the Transfer Restricted Warrant Securities covered by the
Prospectus or any amendment or supplement thereto and all market making
activities of such Affiliated Market Maker, as the case may be;
(xi) upon the request of any Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Warrant Securities pursuant to any
applicable Warrant Shelf Registration Statement contemplated by this
Agreement as may be reasonably requested by any Holder in connection
with any sale or resale pursuant to any applicable Warrant Shelf
Registration Statement. In such connection, and also in connection with
market making activities by any Affiliated Market Maker, Parent shall:
(A) upon request of any person, furnish (or in the case
of Sections 8(b)(xi)(A)(2) and 8(b)(xi)(A)(3), use best
efforts to cause to be furnished) to each person, upon the
effectiveness of the Warrant Shelf Registration Statement or
in connection with any sale of the Warrants (or Warrant
Shares) pursuant to the Warrant Shelf Registration Statement:
(1) a certificate, dated such date, signed on
behalf of Parent by (x) the chief executive officer
and (y) the principal financial or accounting officer
of Parent confirming, as of the date thereof, the
matters set forth in Section 6.02(a) of the
Subscription Agreement and such other matters as are
customary in connection with public offerings of
securities similar to the Warrants (or Warrant
Shares) as such person may reasonably request;
(2) an opinion, dated the date of effectiveness
of the Warrant Shelf Registration Statement or the
closing date of such sale of Warrants (or Warrant
Shares) of counsel for Parent covering matters as are
customary for public offerings of securities similar
to the Warrants (or
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Warrant Shares) and such other matters as such person
may reasonably request, and in any event including a
statement to the effect that such counsel has
participated in conferences with officers and other
representatives of Parent and representatives of the
independent public accountants for Parent and have
considered the matters required to be stated therein
and the statements contained therein, although such
counsel has not independently verified the accuracy,
completeness or fairness of such statements; and that
such counsel advises that, on the basis of the
foregoing (relying as to materiality to the extent
such counsel deems appropriate upon the statements of
officers and other representatives of Parent and
without independent check or verification), no facts
came to such counsel's attention that caused such
counsel to believe that the applicable Warrant Shelf
Registration Statement, at the time such Warrant
Shelf Registration Statement or any post-effective
amendment thereto became effective and, in the case
of any sale pursuant to a Warrant Shelf Registration
Statement, as of the date of the purchase agreement
for such sale and the closing date therefor,
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus
contained in such Warrant Shelf Registration
Statement as of its date and, in the case of the
opinion dated the closing date of a sale, as of the
closing date of such sale, as applicable, contained
an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading. Without
limiting the foregoing, such counsel may state
further that such counsel assumes no responsibility
for, and has not independently verified, the
accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial
data included in any Warrant Shelf Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated the date
of effectiveness of the Warrant Shelf Registration
Statement, or as of the date of closing of a sale
pursuant to the Warrant
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Shelf Registration Statement, as the case may be,
from the independent accountants for Parent in the
customary form and covering matters of the type
customarily covered in comfort letters to
underwriters in connection with underwritten
offerings; and
(B) deliver such other documents and certificates as may
be reasonably requested by the selling such persons to
evidence compliance with the matters covered in Section
8(b)(xi)(A) above and with any customary conditions contained
in any agreement entered into by Parent pursuant to this
Section 8(b)(xi);
(xii) prior to any public offering of Transfer Restricted
Warrant Securities, cooperate with the selling Holders and their
counsel in connection with the registration and qualification of the
Transfer Restricted Warrant Securities under the securities or Blue Sky
laws of such jurisdictions as the selling Holders may request and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Warrant
Securities covered by the applicable Warrant Shelf Registration
Statement; provided, however, that Parent shall not be required to
register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and
transactions relating to the Warrant Shelf Registration Statement, in
any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted
Warrant Securities that will result in such securities no longer being
Transfer Restricted Warrant Securities, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Warrant Securities to be sold and not
bearing any restrictive legends; and to register such Transfer
Restricted Warrant Securities in such denominations and such names as
the selling Holders may request at least two business days prior to
such sale of Transfer Restricted Warrant Securities;
(xiv) use their respective best efforts to cause the
disposition of the Transfer Restricted Warrant Securities covered by
the Warrant Shelf Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to consummate the
disposition of such Transfer Restricted Warrant Securities, subject to
the proviso contained in Section 8(b)(xii) above;
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(xv) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable Warrant
Shelf Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not
be audited) covering a twelve-month period beginning after the
effective date of the Warrant Shelf Registration Statement (as such
term is defined in paragraph (c) of Rule 158 under the Act);
(xvi) provide promptly to each Holder and Affiliated Market
Maker, upon request, each document filed with the Commission pursuant
to the requirements of Section 13 or Section 15(d) of the Exchange Act.
(c) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security and each Affiliated Market Maker agrees that, upon
receipt of the notice referred to in Section 8(b)(iii)(C) or any notice from the
Company (in the case of a Note Registration Statement) or Parent (in the case of
a Warrant Registration Statement) of the existence of any fact of the kind
described in Section 8(b)(iii)(D) hereof (in each case, a "SUSPENSION NOTICE"),
such person will forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the applicable Registration Statement until (i) such
person has received copies of the supplemented or amended Prospectus
contemplated by Section 8(b)(iv) hereof, or (ii) such person is advised in
writing by the Company or Parent, as applicable, that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (in each case, the
"RECOMMENCEMENT DATE"). Each person receiving a Suspension Notice hereby agrees
that it will either (i) destroy any Prospectuses, other than permanent file
copies, then in such person's possession which have been replaced by the Company
or Parent, as applicable with more recently dated Prospectuses or (ii) deliver
to the Company or Parent, as applicable(at the Company's or Parent's expense)
all copies, other than permanent file copies, then in such person's possession
of the Prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 4 or Section 7
hereof, as applicable, shall be extended by a number of days equal to the number
of days in the period from and including the date of delivery of the Suspension
Notice to the date of delivery of the Recommencement Date.
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SECTION 9. Registration Expenses.
(a) All expenses incident to the Company's and Parent's performance of
or compliance with this Agreement will be borne by the Company or Parent, as the
case may be, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws (including without limitation the costs and expenses of
any Trustee selected pursuant to the requirements of the Trust Indenture Act);
(iii) all expenses of printing (including printing of Prospectuses whether for
sales, market making or otherwise), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company, Parent
and the Holders of Transfer Restricted Securities; (v) all application and
filing fees in connection with listing the Warrants or the Warrant Shares on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and Parent (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
The Company and Parent will each, in any event, bear its respective
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any person, including special
experts, retained by the Company or Parent.
The Holders will bear any underwriting discounts and commissions
incurred in connection with the resale of any of their securities.
(b) In connection with any Registration Statement required by this
Agreement, the Company or Parent, as the case may be, will reimburse the Buyers
and the Holders of Transfer Restricted Securities who are selling or reselling
Transfer Restricted Notes pursuant to the "Plan of Distribution" contained in a
Note Registration Statement or selling or reselling Warrants or Warrant Shares
pursuant to a Warrant Registration Statement, as applicable, for the reasonable
fees and disbursements of not more than one counsel, who shall be ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, unless another firm shall be chosen by the Holders of a majority in
principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
SECTION 10. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder, its
directors, officers and each person, if any, who controls such Holder (within
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the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from
and against any and all losses, claims, damages, liabilities, judgments,
(including without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action that
could give rise to any such losses, claims, damages, liabilities or judgments)
(collectively, "LOSSES") caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
provided by the Company to any Holder or any prospective purchaser of Notes 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, except insofar as such Losses are caused by an untrue statement or
omission or alleged untrue statement or omission that is based upon information
relating to any of the Holders furnished in writing to the Company by any of the
Holders; provided that the Company shall not be liable to any Holder, its
directors, officers and any controlling person for any Losses that are caused by
any untrue statement or alleged untrue statement of a material fact if (i) such
Holder was required by law to send or deliver, and failed to send or deliver, a
copy of the Prospectus with or prior to delivery of written confirmation of the
sale by such Holder to the person asserting the claims from which such Losses
arise and (ii) the Prospectus would have corrected such untrue statement or
alleged untrue statement or omission or alleged omission.
Parent agrees to indemnify and hold harmless each Holder, its
directors, officers and each person, if any, who controls such Holder (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from
and against any and all Losses caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
provided by Parent to any Holder or any prospective purchaser of registered
Warrants or Warrant Shares, 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, except insofar as such Losses are caused
by an untrue statement or omission or alleged untrue statement or omission that
is based upon information relating to any of the Holders furnished in writing to
Parent by any of the Holders; provided that Parent shall not be liable to any
Holder, its directors, officers and any controlling person for any Losses that
are caused by any untrue statement or alleged untrue statement of a material
fact if (i) such Holder was required by law to send or deliver, and failed to
send or deliver, a copy of the Prospectus with or prior to delivery of written
confirmation of the sale by such Holder to the person asserting the claims from
which such Losses arise and (ii) the Prospectus would have corrected such untrue
statement or alleged untrue statement or omission or alleged omission.
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(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company (in the case of any Note
Registration Statement) or Parent (in the case of any Warrant Registration
Statement), and their respective directors and officers, and each person, if
any, who controls (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) the Company or Parent, as applicable, to the same extent as
the foregoing indemnity from the Company or Parent, as applicable, set forth in
Section 10(a) above, but only with reference to information relating to such
Holder furnished in writing to the Company or Parent, as applicable, by such
Holder expressly for use in such Registration Statement. In no event shall any
Holder, its directors, officers or any person who controls such Holder be liable
or responsible for any amount in excess of the amount by which the total amount
received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any
damages that such Holder, its directors, officers or any person who controls
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 10(a) or 10(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 10(a) and 10(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 10(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the
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indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by a majority of the Holders, in the case of
the parties indemnified pursuant to Section 10(a), and by the Company or Parent,
as applicable, in the case of parties indemnified pursuant to Section 10(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action 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 the indemnified party.
(d) To the extent that the indemnification provided for in this Section
10 is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company (in the
case of any Note Registration Statement) or Parent (in the case of any Warrant
Registration Statement), on the one hand, and the Holders, on the other hand,
from their sale of Transfer Restricted Securities or (ii) if the allocation
provided by clause 10(d)(i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 10(d)(i) above but also the relative fault of the Company or
Parent, as applicable, on the one hand, and of the Holder, on the other hand, in
connection with the statements or omissions which resulted
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in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative fault of the Company or Parent,
as applicable, on the one hand, and of the Holder, 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 Company or Parent, as
applicable, on the one hand, or by the Holder, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, Parent and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 10(d) were determined by pro
rata allocation (even if the Holders 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 in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 10, no Holder, its
directors, its officers or any person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 10(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
(e) The Company and Parent agree that the indemnity and contribution
provisions of this Section 10 shall apply to Affiliated Market Makers to the
same extent, on the same conditions, as it applies to Holders.
SECTION 11. Rule 144A and Rule 144.
Each of the Company and Parent agrees with each Holder, for so long as
any Transfer Restricted Securities remain outstanding and during any period in
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which such person (i) is not subject to Section 13 or 15(d) of the Exchange Act,
to make available, upon request of any Holder, to such Holder or beneficial
owner of Transfer Restricted Securities in connection with any sale thereof and
any prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule 144A(d)(4)
under the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 12. Miscellaneous.
(a) Remedies. The Company and Parent acknowledge and agree that any
failure by the Company and/or Parent to comply with their respective obligations
under Section 4 or Section 7 hereof may result in material irreparable injury to
the Buyers, the Holders or any Affiliated Market Makers 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 Buyers, any
Holder or any Affiliated Market Makers may obtain such relief as may be required
to specifically enforce the Company's obligations under Section 4 hereof and
Parent's obligations under Section 4 and Section 7 hereof. The Company and
Parent further agree to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor Parent will, on
or after the date of this Agreement, enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. Neither the
Company nor Parent has previously entered into any agreement granting any
registration rights with respect to its securities to any person other than the
Investors' Agreement dated as of May 22, 1998 among Parent and the investors and
stockholders party thereto as in effect on the date 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 Company's and
Parent's securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of this clause
12(c)(i), the Company and Parent have obtained the written consent of Holders of
all outstanding Transfer Restricted Securities, (ii) in the case of all other
provisions hereof with respect to the Transfer Restricted Notes, the Company has
obtained the written consent of Holders of a majority of the
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outstanding principal amount of Transfer Restricted Notes and (iii) in the case
of all other provisions hereof with respect to the Transfer Restricted Warrant
Securities, Parent has obtained the written consent of Holders of a majority of
the outstanding principal amount of Transfer Restricted Warrant Securities
(excluding in each case Transfer Restricted Securities held by Parent, the
Company and any Affiliate of the Company or Parent other than the Buyers).
(d) Third Party Beneficiary. The Holders and any Affiliated Market
Makers shall be third party beneficiaries to the agreements made hereunder
between the Company and Parent, on the one hand, and the Buyers, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect their rights or
the rights of Holders and Affiliated Market Makers hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder of Notes: at the address set forth on the
records of the Registrar under the Indenture or the Notes, as
applicable, with a copy to the Registrar (if other than the Company)
under the Indenture;
(ii) if to a Holder of Warrants and/or Warrant Shares, at the
address set forth on the records of the Company; and
(iii) if to the DLJ Buyers, to:
▇/▇ ▇▇▇ Merchant Banking Partners II, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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(iv) if to the Company and/or Parent
Thermadyne Holdings Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇ or ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
R. ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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 receipt
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 (if there is
a Trustee as of such date) and the Warrant Agent (if there is a Warrant Agent as
of such date) at the address specified in the Indenture and in the terms of the
Warrant, respectively.
Upon the date of filing of any Registration Statement, notice shall be
delivered to any Affiliated Market Makers at the addresses specified by such
Affiliated Market Makers in writing to Parent.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns 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 Transfer Restricted Securities in
violation of the terms hereof or of the Subscription Agreement, the Indenture or
the Warrants. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking
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and holding such Transfer Restricted 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.
(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 AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(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.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THERMADYNE HOLDINGS CORPORATION.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: SR. VP & CFO
THERMADYNE MFG. LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: SR. VP & CFO
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Principal
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Principal
DLJ OFFSHORE PARTNERS II, C.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Principal
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DLJ DIVERSIFIED PARTNERS, L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJMB FUNDING II, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ MILLENNIUM PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Principal
DLJ MILLENNIUM PARTNERS-A, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Principal
DLJ EAB PARTNERS, L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
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DLJ ESC II L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ FIRST ESC, L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
33