EXHIBIT 4.16
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 20, 2003
BETWEEN
▇▇▇▇▇▇ SCIENTIFIC INTERNATIONAL INC.
AND
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
AND
CREDIT SUISSE FIRST BOSTON LLC
AND
LAZARD FRERES & CO. LLC
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into this 20th day of August, 2003, among ▇▇▇▇▇▇ Scientific
International Inc., a Delaware corporation (the "Company"), ▇.▇. ▇▇▇▇▇▇
Securities Inc., Credit Suisse First Boston LLC and Lazard Freres & Co. LLC (the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement,
dated August 6, 2003, 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% Senior Subordinated Notes due 2013 (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% Senior Subordinated
Notes due 2013 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 August 20, 2003 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.
"Filing Date" shall mean the earlier of (x) the 90th day
following the Company's acquisition of more than 50% of the outstanding
shares of Perbio or (y) the day the Exchange Offer Registration
Statement is filed with the Commission.
"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 August 20, 2003, 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 LLC and Lazard Freres & Co.
LLC, 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.
"Perbio" shall mean Perbio Science AB.
"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 pro-
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spectus 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 reasonable 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (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.
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"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 the Filing 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 120 days after the Filing 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 within 45 days
following the Exchange Offer Registration Statement being declared effective.
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.
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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;
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(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 120 days after the Filing Date or the Exchange Offer is not consummated
within 45 days after the Exchange Offer Registration Statement being declared
effective, (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
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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 (or, in the case
of a request by any Initial Purchaser, within 30 days of such request,
which shall be no earlier than the Filing Date), and thereafter shall
use its best efforts to cause to be declared effective as promptly as
practicable but no later than 120 days after the date the Shelf
Registration Statement was first filed, 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. 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 dur-
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ing 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 Filing Date (or, if a Shelf Registration Statement is required to
be filed because of the request of any Initial Purchaser, such Shelf
Registration Statement is not filed with the Commission on or prior to the 30th
calendar day following the request by any such Initial Purchasers that the
Company file the Shelf Registration Statement), (b) the Exchange Offer
Registration Statement has not been declared effective on or prior to the 120th
calendar day following the Filing Date or a Shelf Registration Statement is not
declared effective on or prior to the 120th calendar day following the filing of
such Shelf Registration Statement or (c) the Exchange Offer is not consummated
on or prior to the 45th calendar day following the Exchange Offer Registration
Statement being declared effective (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 Hold-
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ers 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) 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-
-9-
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);
-10-
(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
-11-
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 Accountants;
(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
re-
-12-
quest 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
-13-
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
-14-
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
-15-
(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
-16-
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.
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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.
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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:
(iii) 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
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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
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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. 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.
6.9. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
6.10. 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.
6.11. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
▇▇▇▇▇▇ SCIENTIFIC INTERNATIONAL INC.
By: __________________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CREDIT SUISSE FIRST BOSTON LLC
LAZARD FRERES & CO. LLC
BY: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: _____________________________
Authorized Signatory