EXHIBIT 4.2
Execution Copy
Bio-Rad Laboratories, Inc.
8.00% Senior Subordinated Notes due 2016
Exchange and Registration Rights Agreement
________________
May 26, 2009
Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
Bio-Rad Laboratories, Inc., a Delaware
corporation (the “Company”), proposes to issue and sell
to the Purchaser (as defined herein) upon the terms set forth in
the Purchase Agreement (as defined herein) $300,000,000 aggregate
principal amount of its 8.00% Senior Subordinated Notes due 2016.
As an inducement to the Purchaser to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of
the Purchaser thereunder, the Company agrees with the Purchaser for
the benefit of holders (as defined herein) from time to time of the
Registrable Securities (as defined herein) as follows:
1.
Certain Definitions
. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the
following respective meanings:
“Base Interest” shall mean
the interest that would otherwise accrue on the Securities under
the terms thereof and the Indenture, without giving effect to the
provisions of this Exchange and Registration Rights
Agreement.
The term “broker-dealer”
shall mean any broker or dealer registered with the Commission
under the Exchange Act.
“Closing Date” shall mean the
date on which the Securities are initially issued.
“Commission” shall mean the
United States Securities and Exchange Commission, or any other
federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the
particular purpose.
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“Effective Time,” in the case
of (i) an Exchange Registration, shall mean the time and date
as of which the Commission declares the Exchange Registration
Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the
Commission declares the Shelf Registration Statement effective or
as of which the Shelf Registration Statement otherwise becomes
effective.
“Electing Holder” shall mean
any holder of Registrable Securities that has returned a completed
and signed Notice and Questionnaire to the Company in accordance
with Section 3(d)(ii) or 3(d)(iii) hereof.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, or any successor thereto, as the
same shall be amended from time to time.
“Exchange Offer” shall have
the meaning assigned thereto in Section 2(a) hereof.
“Exchange Registration” shall
have the meaning assigned thereto in Section 3(c)
hereof.
“Exchange Registration
Statement” shall have the meaning assigned thereto in Section
2(a) hereof.
“Exchange Securities” shall
have the meaning assigned thereto in Section 2(a)
hereof.
“Guarantor” shall have the
meaning assigned thereto in the Indenture.
The term “holder” shall mean
the Purchaser and other persons who acquire Registrable Securities
from time to time (including any successors or assigns), in each
case for so long as such person owns any Registrable
Securities.
“Indenture” shall mean the
Indenture, dated as of May 26, 2009, between the Company and Wells
Fargo Bank, National Association, as Trustee, as the same shall be
amended from time to time.
“Notice and Questionnaire”
means a Notice of Registration Statement and Selling Securityholder
Questionnaire substantially in the form of Exhibit A
hereto.
The term “person” shall mean
a corporation, association, partnership, organization, business,
individual, government or political subdivision thereof or
governmental agency.
“Purchase Agreement” shall
mean the Purchase Agreement, dated as of May 19, 2009, between the
Purchaser and the Company relating to the Securities.
“Purchaser” shall mean Credit
Suisse Securities (USA) LLC.
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“Registrable Securities”
shall mean the Securities; provided, however , that a
Security shall cease to be a Registrable Security when (i) in
the circumstances contemplated by Section 2(a) hereof, the Security
has been exchanged for an Exchange Security in an Exchange Offer as
contemplated in Section 2(a) hereof (provided that any Exchange
Security that, pursuant to the last two sentences of Section 2(a),
is included in a prospectus for use in connection with resales by
broker-dealers shall be deemed to be a Registrable Security with
respect to Sections 5, 6 and 9 until resale of such Registrable
Security has been effected within the 180-day period referred to in
Section 2(a)); (ii) in the circumstances contemplated by
Section 2(b) hereof, a Shelf Registration Statement registering
such Security under the Securities Act has been declared or becomes
effective and such Security has been sold or otherwise transferred
by the holder thereof pursuant to and in a manner contemplated by
such effective Shelf Registration Statement; or (iii) such Security
shall cease to be outstanding.
“Registration Default” shall
have the meaning assigned thereto in Section 2(c)
hereof.
“Registration Expenses” shall
have the meaning assigned thereto in Section 4 hereof.
“Resale Period” shall have
the meaning assigned thereto in Section 2(a) hereof.
“Restricted Holder” shall
mean (i) a holder that is an affiliate of the Company within
the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder’s
business, (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer
for the purpose of distributing Exchange Securities and (iv) a
holder that is a broker-dealer, but only with respect to Exchange
Securities received by such broker-dealer pursuant to an Exchange
Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company.
“Rule 144,” “Rule
405” and “Rule 415” shall mean, in each case,
such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to
time.
“Securities” shall mean,
collectively, the 8.00% Senior Subordinated Notes due 2016 of the
Company to be issued and sold to the Purchaser, and securities
issued in exchange therefor or in lieu thereof pursuant to the
Indenture. Each Security is entitled to the benefit of the
guarantee, if any, provided for in the Indenture (the
“Guarantee”) and, unless the context otherwise
requires, any reference herein to a “Security,” an
“Exchange Security” or a “Registrable
Security” shall include a reference to the related
Guarantees, if any.
“Securities Act” shall mean
the Securities Act of 1933, or any successor thereto, as the same
shall be amended from time to time.
“Shelf Registration” shall
have the meaning assigned thereto in Section 2(b)
hereof.
“Shelf Registration
Statement” shall have the meaning assigned thereto in Section
2(b) hereof.
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“Special Interest” shall have
the meaning assigned thereto in Section 2(c) hereof.
“Trust Indenture Act” shall
mean the Trust Indenture Act of 1939, or any successor thereto, and
the rules, regulations and forms promulgated thereunder, all as the
same shall be amended from time to time.
Unless the context otherwise requires,
any reference herein to a “Section” or
“clause” refers to a Section or clause, as the case may
be, of this Exchange and Registration Rights Agreement, and the
words “herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Exchange and Registration Rights Agreement as a whole and not
to any particular Section or other subdivision.
2.
Registration Under the Securities
Act .
(a)
Except as set forth in Section 2(b)
below, the Company agrees to file under the Securities Act, as soon
as practicable, but no later than 230 days after the Closing Date,
a registration statement relating to an offer to exchange (such
registration statement, the “Exchange Registration
Statement”, and such offer, the “Exchange Offer”)
any and all of the Securities for a like aggregate principal amount
of debt securities issued by the Company, which debt securities are
substantially identical to the Securities, including without
limitation, the Guarantees, if any (and are entitled to the
benefits of a trust indenture which is substantially identical to
the Indenture or is the Indenture and which has been qualified
under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under
the Securities Act and do not contain provisions for the additional
interest contemplated in Section 2(c) below (such new debt
securities hereinafter called “Exchange Securities”).
The Company agrees to use its reasonable best efforts to
cause the Exchange Registration Statement to become effective under
the Securities Act as soon as practicable, but no later than 320
days after the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and
will comply with all applicable tender offer rules and regulations
under the Exchange Act. The Company further agrees to
commence and complete the Exchange Offer promptly, but no later
than 45 days after such registration statement has become
effective, hold the Exchange Offer open for at least 20 business
days and exchange Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn on or
prior to the expiration of the Exchange Offer. The Exchange
Offer will be deemed to have been “completed” only if
the debt securities and the related Guarantees, if any, received by
holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the
Exchange Act and without material restrictions under the blue sky
or securities laws of a substantial majority of the States of the
United States of America. The Exchange Offer shall be deemed
to have been completed upon the earlier to occur of (i) the
Company having exchanged the Exchange Securities for all
outstanding Registrable Securities pursuant to the Exchange Offer
and (ii) the Company having exchanged, pursuant to the
Exchange Offer, Exchange Securities for all Registrable Securities
that have been properly tendered and not withdrawn before the
expiration of the Exchange Offer, which shall be on a date that is
at least 20 business days following the commencement of the
Exchange Offer. The Company agrees (x) to include in the
Exchange Registration Statement a prospectus for use in any resales
by any holder of Exchange Securities that is a broker-dealer and
(y) to keep such
SFDOCS01/270919.6
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Exchange Registration Statement effective
for a period (the “Resale Period”) beginning when
Exchange Securities are first issued in the Exchange Offer and
ending upon the earlier of the expiration of the 180th day after
the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Registrable Securities. With
respect to such Exchange Registration Statement, such holders shall
have the benefit of the rights of indemnification and contribution
set forth in Sections 6(a), (c), (d) and (e) hereof.
(b)
If (i) on or prior to the time the
Exchange Offer is completed, existing Commission interpretations
are changed such that the debt securities and the related
Guarantees, if any, received by holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are not or
would not be, upon receipt, transferable by each such holder
without restriction under the Securities Act, (ii) the
Exchange Offer has not been completed within 365 days
following the Closing Date or (iii) the Exchange Offer is not
available to any holder of the Securities, the Company shall, in
lieu of (or, in the case of clause (iii), in addition to)
conducting the Exchange Offer contemplated by Section 2(a), file
under the Securities Act as soon as practicable, but no later than
the later of the thirtieth (30th) day after the time such
obligation to file arises, a “shelf” registration
statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule
that may be adopted by the Commission (such filing, the
“Shelf Registration” and such registration statement,
the “Shelf Registration Statement”). The Company
agrees to use its reasonable best efforts (x) to cause the Shelf
Registration Statement to become or be declared effective no later
than 120 days after such Shelf Registration Statement is filed and
to keep such Shelf Registration Statement continuously effective
for a period ending on the earlier of the first anniversary of the
Effective Time or such time as there are no longer any Registrable
Securities outstanding, provided, however , that no holder
shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement or to use the prospectus forming a
part thereof for resales of Registrable Securities unless such
holder is an Electing Holder, and (y) after the Effective Time of
the Shelf Registration Statement, promptly upon the request of any
holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such
holder to use the prospectus forming a part thereof for resales of
Registrable Securities, including, without limitation, any action
necessary to identify such holder as a selling securityholder in
the Shelf Registration Statement, provided, however , that
nothing in this clause (y) shall relieve any such holder of the
obligation to return a completed and signed Notice and
Questionnaire to the Company in accordance with Section
3(d)(iii) hereof. The Company further agrees to
supplement or make amendments to the Shelf Registration Statement,
as and when required by the rules, regulations or instructions
applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, and the Company
agrees to furnish to each Electing Holder copies of any such
supplement or amendment prior to its being used or promptly
following its filing with the Commission.
(c)
In the event that (i) the Company
has not filed the Exchange Registration Statement or Shelf
Registration Statement on or before the date on which such
registration statement is required to be filed pursuant to Section
2(a) or 2(b), respectively, or (ii) such Exchange Registration
Statement or Shelf Registration Statement has not become effective
or been declared effective by the Commission on or before the date
on which such registration statement is required to become or be
declared effective pursuant to Section 2(a) or 2(b),
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respectively, or (iii) the Exchange
Offer has not been completed within 45 days after the initial
effective date of the Exchange Registration Statement relating to
the Exchange Offer (if the Exchange Offer is then required to be
made) or (iv) any Exchange Registration Statement or Shelf
Registration Statement required by Section 2(a) or 2(b) hereof is
filed and declared or becomes effective but shall thereafter either
be withdrawn by the Company or shall become subject to an effective
stop order issued pursuant to Section 8(d) of the Securities Act
suspending the effectiveness of such registration statement (except
as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and
declared effective (each such event referred to in clauses
(i) through (iv), a “Registration Default” and
each period during which a Registration Default has occurred and is
continuing, a “Registration Default Period”), then, as
liquidated damages for such Registration Default, subject to the
provisions of Section 9(b), special interest (“Special
Interest”), in addition to the Base Interest, shall accrue at
a per annum rate of 0.25% for the first 90 days of the Registration
Default Period, at a per annum rate of 0.50% for the second 90 days
of the Registration Default Period, at a per annum rate of 0.75%
for the third 90 days of the Registration Default Period and at a
per annum rate of 1.0% thereafter for the remaining portion of the
Registration Default Period.
(d)
The Company shall take and shall cause
the Guarantors, if any, to take all actions necessary or advisable
to be taken by it to ensure that the transactions contemplated
herein are effected as so contemplated, including all actions
necessary or desirable to register the Guarantees, if any, under
the registration statement contemplated in Section 2(a) or 2(b)
hereof, as applicable.
(e)
Any reference herein to a registration
statement as of any time shall be deemed to include any document
incorporated, or deemed to be incorporated, therein by reference as
of such time and any reference herein to any post-effective
amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time.
3.
Registration Procedures
. If the Company files a
registration statement pursuant to Section 2(a) or Section 2(b),
the following provisions shall apply:
(a)
At or before the Effective Time of the
Exchange Offer or the Shelf Registration, as the case may be, the
Company shall qualify the Indenture under the Trust Indenture
Act.
(b)
In the event that such qualification
would require the appointment of a new trustee under the Indenture,
the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c)
In connection with the Company’s
obligations with respect to the registration of Exchange Securities
as contemplated by Section 2(a) (the “Exchange
Registration”), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
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(i)
prepare and file with the Commission, as
soon as practicable but no later than 230 days after the
Closing Date, an Exchange Registration Statement on any form which
may be utilized by the Company and which shall permit the Exchange
Offer and resales of Exchange Securities by broker-dealers during
the Resale Period to be effected as contemplated by Section 2(a),
and use its reasonable best efforts to cause such Exchange
Registration Statement to become effective as soon as practicable
thereafter, but no later than 320 days after the Closing
Date;
(ii)
as soon as practicable prepare and file
with the Commission such amendments and supplements to such
Exchange Registration Statement and the prospectus included therein
as may be necessary to effect and maintain the effectiveness of
such Exchange Registration Statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each broker-dealer holding Exchange
Securities with such number of copies of the prospectus included
therein (as then amended or supplemented), in conformity in all
material respects with the requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may request
prior to the expiration of the Resale Period, for use in connection
with resales of Exchange Securities;
(iii)
promptly notify each broker-dealer that
has requested or received copies of the prospectus included in such
registration statement, and confirm such advice in writing, (A)
when such Exchange Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
Exchange Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the
Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Exchange
Registration Statement or prospectus or for additional information,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration
Statement or the initiation or threatening of any proceedings for
that purpose, or of the issuance by the Commission of a
notification of objection to the use of the form on which the
Exchange Registration Statement has been filed, or of the happening
of any event that causes the Company to become an “ineligible
issuer” as defined in Rule 405, (D) if at any time the
representations and warranties of the Company contemplated by
Section 5 cease to be true and correct in all material respects,
(E) of 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, or (F) at any time during the
Resale Period when a prospectus is required to be delivered under
the Securities Act, that such Exchange Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material
SFDOCS01/270919.6
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fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing;
(iv)
in the event that the Company would be
required, pursuant to Section 3(e)(iii)(F) above, to notify any
broker-dealers holding Exchange Securities, without delay prepare
and furnish to each such holder a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered
to purchasers of such Exchange Securities during the Resale Period,
such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and shall not 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 in light
of the circumstances then existing;
(v)
use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of such
Exchange Registration Statement or any post-effective amendment
thereto at the earliest practicable date;
(vi)
use its reasonable best efforts to (A)
register or qualify the Exchange Securities under the securities
laws or blue sky laws of such jurisdictions as are contemplated by
Section 2(a) no later than the commencement of the Exchange Offer,
(B) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions until the expiration of the
Resale Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer
holding Exchange Securities to consummate the disposition thereof
in such jurisdictions; provided, however , that neither the
Company nor any Guarantor, if any, shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(c)(vi), (2) consent to general
service of process in any such jurisdiction or (3) make any changes
to its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(vii)
use its reasonable best efforts to obtain
the consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect
the Exchange Registration, the Exchange Offer and the offering and
sale of Exchange Securities by broker-dealers during the Resale
Period;
(viii)
provide a CUSIP number for all Exchange
Securities, not later than the applicable Effective Time;
and
(ix)
comply with all applicable rules and
regulations of the Commission, and make generally available to its
securityholders as soon as practicable but no later than
eighteen months after the effective date of such Exchange
Registration Statement, an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158
thereunder).
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(d)
In connection with the Company’s
obligations with respect to the Shelf Registration, if applicable,
the Company shall, as soon as practicable (or as otherwise
specified):
(i)
prepare and file with the Commission, as
soon as practicable but in any case within the time periods
specified in Section 2(b), a Shelf Registration Statement on any
form which may be utilized by the Company and which shall register
all of the Registrable Securities for resale by the holders thereof
in accordance with such method or methods of disposition as may be
specified by such of the holders as, from time to time, may be
Electing Holders and use its reasonable best efforts to cause such
Shelf Registration Statement to become effective as soon as
practicable but in any case within the time periods specified in
Section 2(b);
(ii)
not less than 30 calendar days prior to
the Effective Time of the Shelf Registration Statement, mail
the Notice and Questionnaire to the holders of Registrable
Securities; no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such holder has returned a completed
and signed Notice and Questionnaire to the Company by the deadline
for response set forth therein; provided, however , holders
of Registrable Securities shall have at least 28 calendar days from
the date on which the Notice and Questionnaire is first mailed to
such holders to return a completed and signed Notice and
Questionnaire to the Company;
(iii)
after the Effective Time of the Shelf
Registration Statement, upon the request of any holder of
Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder; provided
that the Company shall not be required to take any action to name
such holder as a selling securityholder in the Shelf Registration
Statement or to enable such holder to use the prospectus forming a
part thereof for resales of Registrable Securities until such
holder has returned a completed and signed Notice and Questionnaire
to the Company;
(iv)
as soon as practicable prepare and file
with the Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as may
be necessary to effect and maintain the effectiveness of such Shelf
Registration Statement for the period specified in Section 2(b)
hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to
the form of such Shelf Registration Statement, and furnish to the
Electing Holders copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(v)
comply with the provisions of the
Securities Act with respect to the disposition of all of the
Registrable Securities covered by such Shelf Registration Statement
in accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vi)
provide (A) the Electing Holders, (B) the
underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a
SFDOCS01/270919.6
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person deemed to be an underwriter within
the meaning of Section 2(a)(11) of the Securities Act), if any,
thereof, (C) any sales or placement agent therefor, (D) counsel for
any such underwriter or agent and (E) not more than one counsel for
all the Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement, each prospectus
included therein or filed with the Commission and each amendment or
supplement thereto;
(vii)
for a reasonable period prior to the
filing of such Shelf Registration Statement, and throughout
the period specified in Section 2(b), make available at reasonable
times at the Company’s principal place of business or such
other reasonable place for inspection by the persons referred to in
Section 3(d)(vi) who shall certify to the Company that they
have a current intention to sell the Registrable Securities
pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and use its
reasonable best efforts to cause the officers, employees, counsel
and independent certified public accountants of the Company to
respond to such inquiries, as shall be reasonably necessary, in the
judgment of the respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning of Section 11
of the Securities Act; provided, however , that each such
party shall be required to maintain in confidence and not to
disclose to any other person any information or records
reasonably designated by the Company as being confidential, until
such time as (A) such information becomes a matter of public record
(whether by virtue of its inclusion in such registration statement
or otherwise other than by disclosure by such party), or (B) such
person shall be required so to disclose such information pursuant
to a subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall have
given the Company prompt prior written notice of such requirement),
or (C) such information is required to be set forth in such Shelf
Registration Statement or the prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be,
complies with applicable requirements of the federal securities
laws and the rules and regulations of the Commission and does not
contain an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing;
(viii)
promptly notify each of the Electing
Holders, any sales or placement agent therefor and any underwriter
thereof (which notification may be made through any managing
underwriter that is a representative of such underwriter for such
purpose) and confirm such advice in writing, (A) when such Shelf
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Shelf Registration Statement
or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the blue
sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus or
for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or
SFDOCS01/270919.6
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threatening of any proceedings for that
purpose, or of the issuance by the Commission of a notification of
objection to the use of the form on which the Shelf Registration
Statement has been filed, or of the happening of any event that
causes the Company to become an “ineligible issuer” as
defined in Rule 405, (D) if at any time the representations and
warranties of the Company contemplated by Section
3(d)(xvii) or Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or
(F) if at any time when a prospectus is required to be delivered
under the Securities Act, that such Shelf Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(ix)
use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at
the earliest practicable date;
(x)
if requested by any managing underwriter
or underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such Electing
Holder specifies should be included therein relating to the terms
of the sale of such Registrable Securities, including information
with respect to the principal amount of Registrable Securities
being sold by such Electing Holder or agent or to any underwriters,
the name and description of such Electing Holder, agent or
underwriter, the offering price of such Registrable Securities and
any discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of
the Registrable Securities to be sold by such Electing Holder or
agent or to such underwriters; and make all required filings of
such prospectus supplement or post-effective amendment promptly
after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(xi)
furnish to each Electing Holder, each
placement or sales agent, if any, therefor, each underwriter,
if any, thereof and the respective counsel referred to in Section
3(d)(vi) an executed copy (or, in the case of an Electing
Holder, a conformed copy) of such Shelf Registration Statement,
each such amendment and supplement thereto (in each case including
all exhibits thereto (in the case of an Electing Holder of
Registrable Securities, upon request) and documents incorporated by
reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested
by such Electing Holder, agent or underwriter, as the case may be)
and of the prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and
SFDOCS01/270919.6
11
any summary prospectus), in conformity in
all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, and such other documents,
as such Electing Holder, agent, if any, and underwriter, if any,
may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such Electing
Holder, offered or sold by such agent or underwritten by such
underwriter and to permit such Electing Holder, agent and
underwriter to satisfy the prospectus delivery requirements of the
Securities Act; and the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus) and
any amendment or supplement thereto by each such Electing
Holder and by any such agent and underwriter, in each case in
the form most recently provided to such person by the Company, in
connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto; the Company
shall not, without the prior consent of the Purchaser, make any
offer relating to the Securities that would constitute a
“free writing prospectus” as defined in Rule
405;
(xii)
use its reasonable best efforts to (A)
register or qualify the Registrable Securities to be included in
such Shelf Registration Statement under such securities laws or
blue sky laws of such jurisdictions as any Electing Holder and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required
to remain effective under Section 2(b) above and for so long as may
be necessary to enable any such Electing Holder, agent or
underwriter to complete its distribution of Securities pursuant to
such Shelf Registration Statement and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
such Electing Holder, agent, if any, and underwriter, if any, to
consummate the disp
