Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
Dated as of February 17, 2000
by and among
BIO-RAD LABORATORIES, INC.
and
WARBURG DILLON READ LLC
ABN AMRO INCORPORATED
This Registration Rights Agreement (this "Agreement") is
made and entered into as of February 17, 2000, by and among (i)
Bio-Rad Laboratories, Inc., a Delaware corporation (the
"Company"), and (ii) Warburg Dillon Read LLC and ABN AMRO
Incorporated (each an "Initial Purchaser" and collectively, the
"Initial Purchasers"), each of whom has agreed to purchase the
Company's 11-5/8% Series A Senior Subordinated Notes due 2007 (the
"Series A Notes") pursuant to the Purchase Agreement (as defined
below).
This Agreement is made pursuant to the Purchase Agreement,
dated February 14, 2000 (the "Purchase Agreement"), by and among
the Company and the Initial Purchasers. In order to induce the
Initial Purchasers to purchase the Series A Notes, the Company
has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth
in Sections 2 and 3 of the Purchase Agreement. Capitalized terms
used herein and not otherwise defined shall have the meaning
assigned to them in the Indenture, dated February 17, 2000,
between the Company and Norwest Bank Minnesota, N.A., as Trustee,
relating to the Series A Notes and the Series B Notes (the
"Indenture").
The parties hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the
following capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Certificated Securities: Definitive Notes, as defined in
the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (a) the
filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Series B Notes to be
issued in the Exchange Offer, (b) the maintenance of such
Exchange Offer Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than
the period required pursuant to Section 3(b) hereof and (c) the
delivery by the Company to the Registrar under the Indenture of
Series B Notes in the same aggregate principal amount as the
aggregate principal amount of Series A Notes tendered by Holders
thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Section 3(a) and 4(a)
hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Offer: The exchange and issuance by the Company of
a principal amount of Series B Notes (which shall be registered
pursuant to the Exchange Offer Registration Statement) equal to
the outstanding principal amount of Series A Notes that are
tendered by such Holders in connection with such exchange and
issuance.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Series A Notes to certain
"qualified institutional buyers," as such term is defined in Rule
144A under the Act and pursuant to Regulation S under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a)
hereof.
Holders: As defined in Section 2 hereof.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared
effective, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including post-
effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company relating to (a) an offering of Series B Notes pursuant to
an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration
Statement, in each case, (i) that is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus
included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and
material incorporated by reference therein.
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Series B Notes: The Company's 11% Series B Senior
Subordinated Notes due 2009 to be issued pursuant to the
Indenture: (i) in the Exchange Offer or (ii) as contemplated by
Section 4 hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Series A Note, until
the earliest to occur of (a) the date on which such Series A Note
is exchanged in the Exchange Offer for a Series B Note which is
entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act,
(b) the date on which such Series A Note has been disposed of in
accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Series B Notes), or (c) the
date on which such Series A Note is distributed to the public
pursuant to Rule 144 under the Act or may be sold under Rule
144(k) under the Act (and purchasers thereof have been issued
Series B Notes) and each Series B Note until the date on which
such Series B Note is disposed of by a Broker-Dealer pursuant to
the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including the delivery of the Prospectus
contained therein).
Section 2. Holders. A Person is deemed to be a holder of
Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
Section 3. Registered Exchange Offer.
(1) Unless the Exchange Offer shall not be permitted by
applicable federal law (after the procedures set forth in Section
6(a)(i) below have been complied with), the Company shall (i)
cause the Exchange Offer Registration Statement to be filed with
the Commission as soon as practicable after the Closing Date, but
in no event later than 90 days after the Closing Date (such 90th
day being the "Filing Deadline"), (ii) use its best efforts to
cause such Exchange Offer Registration Statement to become
effective at the earliest possible time, but in no event later
than 180 days after the Closing Date (such 180th day being the
"Effectiveness Deadline"), (iii) in connection with the
foregoing, (A) file all pre-effective amendments to such Exchange
Offer Registration Statement as may be necessary in order to
cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act and (C) cause all
necessary filings, if any, in connection with the registration
and qualification of the Series B Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer
shall be on the appropriate form permitting (i) registration of
the Series B Notes to be offered in exchange for the Series A
Notes that are Transfer Restricted Securities and (ii) resales of
Series B Notes by Broker-Dealers that tendered into the Exchange
Offer Series A Notes that such Broker-Dealer acquired for its own
account as a result of market making activities or other trading
activities (other than Series A Notes acquired directly from the
Company or any of its Affiliates) as contemplated by Section 3(c)
below.
(2) The Company shall use its best efforts to cause the Exchange
Offer Registration Statement to be effective continuously, and
shall keep the Exchange Offer open for a period of not less than
the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20
Business Days. The Company shall cause the Exchange Offer to
comply with all applicable federal and state securities laws. No
securities other than the Series B Notes (and guarantees thereof,
if any) shall be included in the Exchange Offer Registration
Statement. The Company shall use its best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 Business Days thereafter
(such 30th Business Day being the "Consummation Deadline").
(3) The Company shall include a "Plan of Distribution" section
in the Prospectus contained in the Exchange Offer Registration
Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account
of such Broker-Dealer as a result of market-making activities or
other trading activities (other than Series A Notes acquired
directly from the Company or any Affiliate of the Company), may
exchange such Transfer Restricted Securities pursuant to the
Exchange Offer. Such "Plan of Distribution" section shall also
contain all other information with respect to such sales by such
Broker-Dealers that the Commission may require in order to permit
such sales pursuant thereto, but such "Plan of Distribution"
shall not name any such Broker-Dealer or disclose the amount of
Transfer Restricted Securities held by any such Broker-Dealer,
except to the extent required by the Commission as a result of a
change in policy, rules or regulations after the date of this
Agreement. See the Shearman & Sterling no action letter
(available July 2, 1993).
Because such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of
the Act in connection
with its initial sale of any Series B Notes received by such
Broker-Dealer in the Exchange Offer, the Company shall permit the use of
the Prospectus contained in the Exchange Offer Registration Statement by
such Broker-Dealer to satisfy such prospectus delivery requirement.
To the extent necessary to ensure that the Prospectus contained
in the Exchange Offer Registration Statement is available
for sales of Series B Notes by Broker-Dealers, the Company
agrees to use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented,
amended and current as required by and subject to the
provisions of Section 6(a) and (c) hereof and in conformity
with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as
announced from time to time, for a period of one year from
the Consummation Deadline or such shorter period as will
terminate when all Transfer Restricted Securities covered by
such Registration Statement have been sold pursuant thereto.
The Company shall provide sufficient copies of the latest
version of such Prospectus to such Broker-Dealers, promptly
upon request, and in no event later than one day after such
request, at any time during such period.
Section 4. Shelf Registration.
(1) Shelf Registration. If (i) the Exchange Offer is not
permitted by applicable law (after the Company has complied with
the procedures set forth in Section 6(a)(i) below) or (ii) if any
Holder of Transfer Restricted Securities shall notify the Company
within 20 Business Days following the Consummation Deadline that
(A) such Holder was prohibited by law or Commission policy from
participating in the Exchange Offer or (B) such Holder may not
resell the Series B Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Series A Notes acquired
directly from the Company or any of its Affiliates, then the
Company shall:
(x) cause to be filed, on or prior to 30 days
after the earlier of (i) the date on which the Company
determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause (a)(i)
above and (ii) the date on which the Company receives
the notice specified in clause (a)(ii) above, (such
earlier date, the "Filing Deadline"), a shelf
registration statement pursuant to Rule 415 under the
Act (which may be an amendment to the Exchange Offer
Registration Statement (the "Shelf Registration
Statement")), relating to all Transfer Restricted
Securities, and
(y) shall use their respective best efforts to
cause such Shelf Registration Statement to become
effective on or prior to 60 days after the Filing
Deadline for the Shelf Registration Statement (such
60th day the "Effectiveness Deadline").
If, after the Company has filed an Exchange Offer
Registration Statement that satisfies the requirements of
Section 3(a) above, the Company is required to file and make
effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law
(i.e., clause (a)(i) above), then the filing of the Exchange
Offer Registration Statement shall be deemed to satisfy the
requirements of clause (x) above; provided that, in such
event, the Company shall remain obligated to meet the
Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf
Registration Statement is available for sales of Transfer
Restricted Securities by the Holders thereof entitled to the
benefit of this Section 4(a) and the other securities
required to be registered therein pursuant to Section
6(b)(ii) hereof, the Company shall use its best efforts to
keep any Shelf Registration Statement required by this
Section 4(a) continuously effective, supplemented, amended
and current as required by and subject to the provisions of
Sections 6(b) and (c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from
time to time, for a period of at least two years (as
extended pursuant to Section 6(c)(i)) following the Closing
Date, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant thereto, or
otherwise cease to be Transfer Restricted Securities.
(2) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company
in writing, within 20 days after receipt of a request therefor,
the information specified in Item 507 or 508 of Regulation S-K,
as applicable, of the Act for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus
included therein or Prospectus supplement thereto. No Holder of
Transfer Restricted Securities shall be entitled to liquidated
damages pursuant to Section 5 hereof unless and until such Holder
shall have provided all such information. Each selling Holder
agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
Section 5. Liquidated Damages.
(1) If:
(1) any Registration Statement required by this Agreement is
not filed with the Commission on or prior to the
applicable Filing Deadline,
(2) any such Registration Statement has not been declared
effective by the Commission on or prior to the applicable
Effectiveness Deadline,
(3) the Exchange Offer has not been Consummated on or prior to
the Consummation Deadline or
(4) any Registration Statement required by this Agreement is
filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without
being succeeded immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself
declared effective immediately after filing such post-effective
amendment to such Registration Statement (each such event
referred to in clauses (i) through (iv), a "Registration
Default"),
then the Company hereby agrees to pay to each Holder of
Transfer Restricted Securities affected thereby liquidated
damages in an amount equal to $.05 per week per $1,000 in
principal amount of Transfer Restricted Securities held by
such Holder for each week or portion thereof that the
Registration Default continues for the first 90-day period
immediately following the occurrence of such Registration
Default. The amount of the liquidated damages shall
increase by an additional $.05 per week per $1,000 in
principal amount of Transfer Restricted Securities with
respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum
amount of liquidated damages of $.30 per week per $1,000 in
principal amount of Transfer Restricted Securities;
provided, that the Company shall in no event be required to
pay liquidated damages for more than one Registration
Default at any given time. Notwithstanding anything to the
contrary set forth herein, (1) upon filing of the Exchange
Offer Registration Statement (and/or, if applicable, the
Shelf Registration Statement), in the case of (i) above, (2)
upon the effectiveness of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation
of the Exchange Offer, in the case of (iii) above, or (4)
upon the filing of a post-effective amendment to the
Registration Statement or an additional Registration
Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration
Statement) to again be declared effective or made usable in
the case of (iv) above, the liquidated damages payable with
respect to the Transfer Restricted Securities as a result of
such clause (i), (ii), (iii) or (iv), as applicable, shall
cease.
(2) All accrued liquidated damages shall be paid to the Holders
entitled thereto, in the manner provided for the payment of
interest in the Indenture, on each Interest Payment Date, as more
fully set forth in the Indenture and the Series A Notes.
Notwithstanding the fact that any securities for which liquidated
damages are due cease to be Transfer Restricted Securities, all
obligations of the Company to pay liquidated damages with respect
to securities shall survive until such time as such obligations
with respect to such securities shall have been satisfied in
full.
Section 6. Registration Procedures.
(1) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Company shall (x) comply with all
applicable provisions of Section 6(c) below, (y) use its best
efforts to effect such exchange and to permit the resale of
Series B Notes by Broker-Dealers that tendered in the Exchange
Offer Series A Notes that such Broker-Dealer acquired for its own
account as a result of its market making activities or other
trading activities (other than Series A Notes acquired directly
from the Company or any of its Affiliates) being sold in
accordance with the intended method or methods of distribution
thereof, and (z) comply with all of the following provisions:
(1) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such
as the Exchange Offer, that in the reasonable opinion of counsel
to the Company raises a substantial question as to whether the
Exchange Offer is permitted by applicable federal law, the
Company hereby agrees to seek a no-action letter or other
favorable decision from the Commission allowing the Company to
Consummate an Exchange Offer for such Transfer Restricted
Securities. The Company hereby agrees to pursue the issuance of
such a decision to the Commission staff level. In connection
with the foregoing, the Company hereby agrees to take all such
other actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic
conferences with the Commission staff, (B) delivering to the
Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel
has concluded that such an Exchange Offer should be permitted and
(C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(2) As a condition to its participation in the Exchange Offer,
each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker-Dealer) shall furnish,
upon the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company (which
may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A) it
is not an Affiliate of the Company, (B) it is not engaged in, and
does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution
of the Series B Notes to be issued in the Exchange Offer and
(C) it is acquiring the Series B Notes in its ordinary course of
business. As a condition to its participation in the Exchange
Offer each Holder using the Exchange Offer to participate in a
distribution of the Series B Notes shall acknowledge and agree
that, if the resales are of Series B Notes obtained by such
Holder in exchange for Series A Notes acquired directly from the
Company or an Affiliate thereof, it (1) could not, under
Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in
Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Act in connection with a secondary
resale transaction and that such a secondary resale transaction
must be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508,
as applicable, of Regulation S-K.
(3) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company shall provide a supplemental letter to the
Commission (A) stating that the Company is registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May
13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991)
as interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and, if applicable, any no-action letter
obtained pursuant to clause (i) above, (B) including a
representation that the Company has not entered into any
arrangement or understanding with any Person to distribute the
Series B Notes to be received in the Exchange Offer and that, to
the best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the Series B
Notes in its ordinary course of business and has no arrangement
or understanding with any Person to participate in the
distribution of the Series B Notes received in the Exchange Offer
and (C) any other undertaking or representation required by the
Commission as set forth in any no-action letter obtained pursuant
to clause (i) above, if applicable.
(2) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall:
(1) comply with all the provisions of Section 6(c) below and
use its best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant to
Section 4(b) hereof), and pursuant thereto the Company will
prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the
Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof; and
(2) issue, upon the request of any Holder or purchaser of
Series A Notes covered by any Shelf Registration Statement
contemplated by this Agreement, Series B Notes having an aggregate
principal amount equal to the aggregate principal amount of Series A
Notes sold pursuant to the Shelf Registration Statement and
surrendered to the Company for cancellation; the Company shall
register Series B Notes on the Shelf Registration Statement for this
purpose and issue the Series B Notes to the purchaser(s) of
securities subject to the Shelf Registration Statement in the
names as such purchaser(s) shall designate.
(3) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement,
the Company shall:
(1) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial
statements for the period specified in Section
3 or 4 hereof, as applicable. Upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus
contained therein (A) to contain an untrue statement of material
fact or omit to state any material fact necessary to make the
statements therein not misleading or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall file promptly
an appropriate amendment to such Registration Statement curing such
defect, and, if Commission review is required, use its best
efforts to cause such amendment to be declared effective as soon
as practicable;
(2) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration
Statement as may be necessary to keep such Registration Statement
effective for the applicable period set forth in Section 3 or 4
hereof, as the case may be; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and
to comply fully with Rules 424, 430A and 462, as applicable,
under the Act in a timely manner; and comply with the provisions
of the Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(3) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus
or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any applicable Registration Statement
or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of
the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes and (D) of the existence of any
fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto or any document incorporated
by reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement in order to
make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company shall use its best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(4) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(5) furnish to each Holder in connection with such exchange or
sale, if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement), which
documents will be subject to the review and comment of such
Holder in connection with such sale, if any, for a period of at
least five Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which
such Holder shall reasonably object within five Business Days
after the receipt thereof. A Holder shall be deemed to have
reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading or fails to comply with the
applicable requirements of the Act;
(6) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to each Holder in
connection with such exchange or sale, if any, make the Company's
representatives available for discussion of such document and
other customary due diligence matters, and include such
information in such document prior to the filing thereof as such
Holder may reasonably request;
(7) make available, at reasonable times, for inspection by
each Holder and any attorney or accountant retained by such Holder,
all financial and other pertinent corporate documents and records
of the Company and cause the Company's officers, directors and
employees to supply all information reasonably requested by any
such Holder, attorney or accountant in connection with such
Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
(8) if requested by any Holder in connection with such
exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment
if necessary, such information as such Holder may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the
Transfer Restricted Securities; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
included in such Prospectus supplement or post-effective
amendment;
(9) furnish to each Holder in connection with such exchange or
sale, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each
amendment thereto, including, if requested, all documents
incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(10) deliver to each Holder without charge, as many copies of
the Prospectus (including each preliminary Prospectus) and any
amendment or supplement thereto as such Holder reasonably may
request; the Company hereby consents to the use (in accordance
with law) of the Prospectus and any amendment or supplement
thereto by each selling Holder in connection with the offering
and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(11) upon the request of any Holder, enter into such agreements
(including underwriting agreements) and make such representations
and warranties and take all such
other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any applicable Registration Statement contemplated by
this Agreement as may be reasonably requested by any Holder in
connection with any sale or resale pursuant to any applicable
Registration Statement. In such connection, the Company shall:
(1) upon request of any Holder, furnish (or in the case
of paragraphs (A) and (B), use its best efforts to cause to be
furnished) to each Holder, upon Consummation of the Exchange
Offer or upon the effectiveness of the Shelf Registration
Statement, as the case may be:
(1) a certificate, dated such date, in the same form
as the certificate delivered upon closing of the
transactions contemplated by the Purchase Agreement and
signed on behalf of the Company by (x) the President or any
Vice President and (y) a principal financial or accounting
officer of the Company, confirming, as of the date thereof,
the matters set forth in Sections 6(w), 9(a) and 9(b) of
the Purchase Agreement and such other similar matters as
such Holder may reasonably request;
(2) an opinion, dated the date of Consummation of
the Exchange Offer or the date of effectiveness of the
Shelf Registration statement, as the case may be, of
counsel for the Company covering matters similar to those
set forth in paragraph (e) of Section 9 of the Purchase
Agreement and such other matters as such Holder may
reasonably request, and in any event including a statement
to the effect that such counsel has participated in
conferences with officers and other representatives of the
Company, including representatives of the independent
public accountants for the Company, in connection with the
preparation of such Registration Statement and the related
Prospectus and have considered the matters required to be
stated therein and the statements contained therein,
although such counsel has not independently verified the
accuracy, completeness or fairness of such statements; and
that such counsel advises that, on the basis of the
foregoing (relying as to materiality to the extent such
counsel deems appropriate upon the statements of officers
and other representatives of the Company without
independent check or verification), no facts came to such
counsel's attention that caused such counsel to believe
that the applicable Registration Statement, at the time
such Registration Statement or any post-effective amendment
thereto became effective and, in the case of the Exchange
Offer Registration Statement, as of the date of
Consummation of the Exchange Offer,contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date
and, in the case of the opinion dated the date of
Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel may state
further that such counsel assumes no responsibility for,
and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes
and schedules and other financial data included or
incorporated by
reference in any Registration Statement contemplated by
this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration Statement, as the
case may be, from the Company's independent accountants, in
customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection
with underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to Section
9(g) of the Purchase Agreement; and
(2) deliver such other documents and certificates as may
be reasonably requested by the selling Holders to evidence
compliance with the matters covered in clause (A) above and with
any customary conditions contained in any agreement entered into
by the Company pursuant to this clause (xi);
(12) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel
in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky
laws of such jurisdictions as the selling Holders may request and
do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration
Statement; provided, however, that the Company shall not be
required to register or qualify as a foreign corporation where it
is not now so qualified or to take any action that would subject
it to the service of process in suits or to taxation, other than
as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(13) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days prior to
such sale of Transfer Restricted Securities;
(14) use its best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Registration
Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the
disposition of such Transfer Restricted Securities, subject to
the proviso contained in clause (xii) above;
(15) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and
provide the Trustee under the Indenture with printed certificates
for the Transfer Restricted Securities which are in a form
eligible for deposit with The Depository Trust Company;
(16) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited)
covering a twelve-month period beginning after the effective date of
the Registration Statement (as such term is defined in paragraph (c)
of Rule 158 under the Act);
(17) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith,
cooperate with the Trustee and the Holders to effect such changes
to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute
and use its best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all
other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a
timely manner;
(18) provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act; and
(19) use its best efforts to take all other steps necessary to
effect the registration of the Transfer Restricted Securities
covered by a Registration Statement contemplated hereby.
(4) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of the
notice referred to in Section 6(c)(iii)(C) or any notice from the
Company of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof (in each case, a "Suspension
Notice"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable
Registration Statement until (i) such Holder has received copies
of the supplemented or amended Prospectus contemplated by Section
6(c)(iv) hereof, or (ii) such Holder is advised in writing by the
Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus (in each case,
the "Recommencement Date"). Each Holder receiving a Suspension
Notice hereby agrees that it will either (i) destroy any
Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Company with
more recently dated Prospectuses or (ii) deliver to the Company
(at the Company's expense) all copies, other than permanent file
copies, then in such Holder's possession of the Prospectus
covering such Transfer Restricted Securities that was current at
the time of receipt of the Suspension Notice. The time period
regarding the effectiveness of such Registration Statement set
forth in Section 3 or 4 hereof, as applicable, shall be extended
by a number of days equal to the number of days in the period
from and including the date of delivery of the Suspension Notice
to the date of delivery of the Recommencement Date.
Section 7. Registration Expenses.
(1) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective,
including without limitation:
(1)
(1) all registration and filing fees and expenses;
(2) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws (including, without
limitation, reasonable fees and disbursements of one firm of
lawyers in connection with Blue Sky qualifications of the
Transfer Restricted Securities or Series B Notes);
(3) all expenses of printing (including printing certificates
for the Series B Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and
telephone;
(4) all fees and disbursements of counsel for the Company and
one counsel for the Holders of Transfer Restricted Securities;
(5) all application and filing fees in connection with listing
the Series B Notes on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and
(6) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special
audit and comfort letters required by or incident to such
performance).
The Company will, in any event, bear its internal
expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts,
retained by the Company.
(2) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the
Company will reimburse the Initial Purchasers and the Holders of
Transfer Restricted Securities who are tendering Series A Notes
in the Exchange Offer and/or selling or reselling Series A Notes
or Series B Notes pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or the
Shelf Registration Statement, as applicable, for the reasonable
fees and disbursements of not more than one counsel, who shall be
Skadden, Arps, Slate, Meagher & Flom LLP, unless another firm
shall be chosen by the Holders of a majority in principal amount
of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
Section 8. Indemnification.
(1) The Company agrees to indemnify and hold harmless each
Holder, its directors, officers and each Person, if any, who
controls such Holder (within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act), from and against any and all
losses, claims, damages, liabilities, and judgments, (including
without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including
any action that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement
or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary Prospectus or Prospectus (or
any amendment or supplement thereto) provided by the Company to
any Holder or any prospective purchaser of Series B Notes or
registered Series A Notes, or caused by any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by an untrue statement or
omission or alleged untrue statement or omission that is based
upon information relating to any of the Holders furnished in
writing to the Company by any of the Holders.
(2) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the
Company, its directors and officers, and each person, if any, who
controls (within the meaning of Section 15 of the Act or Section
20 of the Exchange Act) the Company to the same extent as the
foregoing indemnity from the Company set forth in section (a)
above, but only with reference to information relating to such
Holder furnished in writing to the Company by such Holder ex
pressly for use in any Registration Statement. In no event shall
any Holder, its directors, officers or any Person who controls
such Holder be liable or responsible for any amount in excess of
the amount by which the total amount received by such Holder with
respect to its sale of Transfer Restricted Securities pursuant to
a Registration Statement exceeds (i) the amount paid by such
Holder for such Transfer Restricted Securities and (ii) the
amount of any damages that such Holder, its directors, officers
or any Person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(3) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section
8(a) or 8(b) (the "indemnified party"), the indemnified party
shall promptly notify the person against whom such indemnity may
be sought (the "indemnifying party") in writing (provided, that
the failure to give such notice shall not relieve the
indemnifying party of its obligations pursuant to this Agreement,
except to the extent that such failure materially prejudices the
position of such indemnifying party as determined by a final non-
appealable order of a court of competent jurisdiction) and the
indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to
the indemnified party and the payment of all fees and expenses of
such counsel, as incurred (except that in the case of any action
in respect of which indemnity may be sought pursuant to both
Sections 8(a) and 8(b), a Holder shall not be required to assume
the defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof,
but the fees and expenses of such counsel, except as provided
below, shall be at the expense of the Holder). Any indemnified
party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the
indemnified party unless (i) the employment of such counsel shall
have been specifically authorized in writing by the indemnifying
party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably
satisfactory to the indemnified party or (iii) the named parties
to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the
indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are
different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf
of the indemnified party). In any such case, the indemnifying
party shall not, in connection with any one action or separate
but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to one local counsel)
for all indemnified parties and all such fees and expenses shall
be reimbursed as they are incurred. Such firm shall be
designated in writing by a majority of the Holders, in the case
of the parties indemnified pursuant to Section 8(a), and by the
Company, in the case of parties indemnified pursuant to Section
8(b). The indemnifying party shall indemnify and hold harmless
the indemnified party from and against any and all losses,
claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is
entered into more than twenty business days after the
indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the
expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply
with such reimbursement request. No indemnifying party shall,
without the prior written consent of the indemnified party,
effect any settlement or compromise of, or consent to the entry
of judgment with respect to, any pending or threatened action in
respect of which the indemnified party is or could have been a
party and indemnity or contribution may be or could have been
sought hereunder by the indemnified party, unless such
settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the
indemnified party.
(4) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of
any losses, claims, damages, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by
the Company, on the one hand, and the Holders, on the other hand,
from their initial sale of Transfer Restricted Securities or (ii)
if the allocation provided by clause 8(d)(i) is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 8(d)(i)
above but also the relative fault of the Company, on the one
hand, and of the Holder, on the other hand, in connection with
the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative fault of the
Company, on the one hand, and of the Holder, on the other hand,
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by the
Holder, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable
by a party as a result of the losses, claims, damages,
liabilities and judgments referred to above shall be deemed to
include, subject to the limitations set forth in the second
paragraph of Section 8(a), any legal or other fees or expenses
reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company and, by its acquisition of Transfer
Restricted Securities, each Holder agree that it would not
be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take
account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any matter,
including any action that could have given rise to such
losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 8, no Holder,
its directors, its officers or any Person, if any, who
controls such Holder shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the
total amount received by such Holder with respect to the
sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such
Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute
pursuant to this Section 8(c) are several in proportion to
the respective principal amount of Transfer Restricted
Securities held by each Holder hereunder and not joint.
Section 9. Rule 144A and Rule 144. The Company agrees with
each Holder, for so long as any Transfer Restricted Securities
remain outstanding and during any period in which the Company (i)
is not subject to Section 13 or 15(d) of the Exchange Act, to
make available, upon request of any Holder, to such Holder or
beneficial owner of Transfer Restricted Securities in connection
with any sale thereof and any prospective purchaser of such
Transfer Restricted Securities designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4)
under the Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A, and (ii) is subject
to Section 13 or 15 (d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of
such Transfer Restricted Securities pursuant to Rule 144.
Section 10. Miscellaneous.
(1) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under
Sections 3 and 4 hereof may result in material irreparable injury
to the Initial Purchasers or the Holders for which there is no
adequate remedy at law, that it will 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 Sections 3 and 4 hereof. The Company
further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(2) No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with
respect to its securities to any Person that would require such
securities to be included in any Registration Statement required
by this Agreement. The rights granted to the Holders hereunder
do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities under
any agreement in effect on the date hereof.
(3) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or
consents to or departures from the provisions hereof may not be
given unless (i) in the case of Section 5 hereof and this Section
10(c)(i), the Company has obtained the written consent of Holders
of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the
written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities (excluding
Transfer Restricted Securities held by the Company or its
Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively
to the rights of Holders whose Transfer Restricted Securities are
being tendered pursuant to the Exchange Offer, and that does not
affect directly or indirectly the rights of other Holders whose
Transfer Restricted Securities are not being tendered pursuant to
such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted
Securities subject to such Exchange Offer.
(4) Third-Party Beneficiary. The Holders shall be third-party
beneficiaries 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 they may deem such enforcement necessary
or advisable to protect their rights or the rights of Holders
hereunder.
(5) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to a Holder, at the address set forth on the records
of the Registrar under the Indenture, with a copy to the Registrar
under the Indenture; and
(2) if to the Company:
Bio-Rad Laboratories, Inc.
1000 Alfred Nobel Drive
Hercules, California 94547
Telecopier No.: (510) 741-5815
Attention: Chief Financial Officer
With a copy (which shall not constitute
notice) to:
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
Telecopier No.: (415) 395-8095
Attention: Tracy K. Edmonson, Esq.
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when
receipt acknowledged, if telecopied; and on the next
business day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee at the address specified in
the Indenture.
Upon the date of filing of the Exchange Offer
Registration Statement or a Shelf Registration Statement, as
the case may be, notice shall be delivered to Warburg Dillon
Read LLC, on behalf of the Initial Purchasers (in the form
attached hereto as Exhibit A) and shall be addressed to: 667
Washington Blvd., Stamford, CT 06912, Attention: High
Yield Capital Markets, with a copy (which shall not
constitute notice) to Skadden, Arps, Slate, Meagher & Flom
LLP, 300 South Grand Avenue, Los Angeles, California 90071,
Telecopier No.: (213) 687-5600, Attention: Rodrigo A.
Guerra, Jr., Esq.
(6) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each
of the parties, including without limitation and without the need
for an express assignment, subsequent Holders; provided, that
nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Transfer Restricted Securities in
violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire
Transfer Restricted Securities in any manner, whether by
operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted
Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and
provisions of this Agreement, 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.
(7) 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.
(8) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(9) Governing Law. This Agreement shall be construed,
interpreted and the rights of the parties determined in
accordance with the laws of the State of New York, without regard
to principles of conflicts of law except Section 5-1401 of the
New York General Obligations Law. The Company hereby irrevocably
submits to the jurisdiction of any New York state court sitting
in the Borough of Manhattan in the City of New York or any
federal court sitting in the Borough of Manhattan in the City of
New York in respect of any suit, action or proceeding arising out
of or relating to this Agreement, and irrevocably accepts for
itself and in respect of its property, generally and
unconditionally, jurisdiction of the aforesaid courts. The
Company irrevocably waives, to the fullest extent it may
effectively do so under applicable law, trial by jury and any
objection that it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient
forum. The Company irrevocably consents, to the fullest extent
it may effectively do so under applicable law, to the service of
process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Company at its address
set forth herein, such service to become effective 30 days after
such mailing. Nothing herein shall affect the rights of the
Initial Purchasers and the Holders to serve process in any other
manner permitted by law or to commence legal proceedings or
otherwise proceed against the Company in any other jurisdiction.
(10) 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.
(11) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or
referred to herein with respect to the registration rights
granted with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
BIO-RAD LABORATORIES, INC.
By: /s/ Thomas C. Chesterman
Name: Thomas C. Chesterman
Title:Vice President & Chief Financial Officer
WARBURG DILLON READ LLC
By: /s/ Kaj Ahlburg
Name: Kaj Ahlburg
Title: Managing Director
Leveraged Finance
By: /s/ Matthew R. Stopnik
Name: Matthew R. Stopnik
Title: Associate Director
ABN AMRO INCORPORATED
By: /s/ June Yuson
Name: June Yuson
Title: Managing Director
EXHIBIT A
NOTICE OF FILING OF
[A/B EXCHANGE OFFER/SHELF] REGISTRATION STATEMENT
To: Warburg Dillon Read LLC
ABN AMRO Incorporated
Warburg Dillon Read LLC
299 Park Avenue
New York, New York 10171
From: Bio-Rad Laboratories, Inc.
11-5/8% Senior Subordinated Notes Due 2007
Date: [________] [__], 2000
For your information only (NO ACTION REQUIRED):
Today, [________] [__], 2000, we filed [an A/B Exchange
Offer Registration Statement/a Shelf Registration Statement] with
the Securities and Exchange Commission. We currently expect this
registration statement to be declared effective within [____]
business days of the date hereof.