EXHIBIT 4.6
Bio-Rad Laboratories,
Inc.
6.125% Senior Subordinated Notes
due 2014
Exchange and Registration Rights
Agreement
December 21, 2004
Credit Suisse First Boston 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) $200,000,000
aggregate principal amount of its 6.125% Senior Subordinated Notes
due 2014. 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.
“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.
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“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 December 21, 2004, 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 December 13, 2004,
between the Purchaser and the Company relating to the
Securities.
“Purchaser” shall mean
Credit Suisse First Boston LLC.
“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
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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; (iii) such Security is sold pursuant to Rule 144 under
circumstances in which any legend borne by such Security relating
to restrictions on transferability thereof, under the Securities
Act or otherwise, is removed by the Company or pursuant to the
Indenture; (iv) such Security is eligible to be sold pursuant to
paragraph (k) of Rule 144; or (v) 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 6.125% Senior Subordinated Notes due 2014 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.
“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.
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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 180 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 270 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 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.
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(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 315 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 second
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), 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 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
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(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):
(i) prepare and file with the
Commission, as soon as practicable but no later than 180 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 270 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
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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, (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 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;
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(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).
(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 ,
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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 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,
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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 threatening of any
proceedings for that purpose, (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
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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 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;
(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
11
consummate the disposition in such
jurisdictions of such Registrable Securities; 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(d)(xii), (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;
(xiii) 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 Shelf Registration or the offering or sale
in connection therewith or to enable the selling holder or holders
to offer, or to consummate the disposition of, their Registrable
Securities;
(xiv) unless any Registrable
Securities shall be in book-entry only form, cooperate with the
Electing Holders and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates,
if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel
engraved borders, and which certificates sha
