Exhibit 10.1
CONMED CORPORATION
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REGISTRATION RIGHTS AGREEMENT
November 10, 2004
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of November 10, 2004, by and between CONMED Corporation, a New
York corporation (the "Company"), and UBS Securities LLC, on behalf of the
several Initial Purchasers (collectively, the "Initial Purchasers") named in
that certain Purchase Agreement, dated November 5, 2004 (the "Purchase
Agreement"), between the Company and the Initial Purchasers.
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement. The execution of this Agreement is a condition to the closing
under the Purchase Agreement. The terms "herein," "hereof," "hereto,"
"hereinafter" and similar terms, as used in this Agreement, shall in each case
refer to this Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement.
The Company agrees with the Initial Purchasers (i) for their benefit
as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Covered Securities
(as defined herein) (each of the foregoing a "Holder" and, together, the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the respective meanings set forth in, as applicable, the Purchase
Agreement or the Indenture, dated as of the date hereof, between the
Company and the Trustee (the "Indenture"), pursuant to which the Notes are
being issued. As used in this Agreement, the following terms shall have
the following meanings:
(a) "Additional Filing Deadline Date" has the meaning set forth in Section
2(e) hereof.
(b) "additional interest" has the meaning set forth in Section 2(e)
hereof.
(c) "Additional Interest Accrual Period" has the meaning set forth in
Section 2(e) hereof.
(d) "Additional Interest Amount" has the meaning set forth in Section 2(e)
hereof.
(e) "Additional Interest Payment Date" means each May 15 and November 15
of each year.
(f) "Business Day" means each day on which the New York Stock Exchange is
open for trading.
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(g) "Common Stock" means the shares of common stock, $0.01 par value per
share, of the Company and any other shares of capital stock as may
constitute "Common Stock" for purposes of the Indenture, including the
Underlying Common Stock.
(h) "Covered Security" has the meaning set forth in Section 1(ii) hereof.
(i) "Designated Counsel" has the meaning set forth in Section 3(c) hereof.
(j) "Effectiveness Deadline Date" has the meaning set forth in Section
2(a) hereof.
(k) "Effectiveness Period" means a period that terminates when there are
no Registrable Securities outstanding.
(l) "Event" has the meaning set forth in Section 2(e) hereof.
(m) "Event Date" has the meaning set forth in Section 2(e) hereof.
(n) "Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
(o) "Form S-3" means a Registration Statement on Form S-3 under the
Securities Act.
(p) "Holder" has the meaning set forth in the preamble hereof.
(q) "Holder Information" has the meaning set forth in Section 6(b) hereof.
(r) "Indemnified Party" has the meaning set forth in Section 6(c) hereof.
(s) "Indemnifying Party" has the meaning set forth in Section 6(c) hereof.
(t) "Indenture" has the meaning set forth in the preamble hereof.
(u) "Initial Purchasers" has the meaning set forth in the preamble hereof.
(v) "Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
(w) "Issue Date" means November 10, 2004.
(x) "Managing Underwriters" has the meaning set forth in Section 8(a)
hereof.
(y) "Material Event" has the meaning set forth in Section 3(i) hereof.
(z) "NASD Rules" has the meaning set forth in Section 3(r) hereof.
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(aa) "Notes" means the 2.50% Convertible Senior Subordinated Notes due
2024 of the Company to be purchased pursuant to the Purchase Agreement.
(bb) "Notice and Questionnaire" means a written questionnaire containing
substantially the information called for by the Selling Securityholder Notice
and Questionnaire attached as Annex A to the Offering Memorandum of the Company,
dated November 5, 2004, relating to the Notes.
(cc) "Notice Holder" means, on a given date, any Holder that has delivered
a properly completed and executed Notice and Questionnaire to the Company on or
prior to such date, provided not all of such Holder's Registrable Securities
that have been registered for resale pursuant to a Notice and Questionnaire have
been sold in accordance with a Shelf Registration and provided that the
information in such Notice and Questionnaire shall not, in any material respect,
be incomplete, misleading or incorrect.
(dd) "Proceeding" has the meaning set forth in Section 6(c) hereof.
(ee) "Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 415 under the Act), as amended or
supplemented by any amendment or prospectus supplement, including post-effective
amendments, and all materials incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
(ff) "Purchase Agreement" has the meaning set forth in the preamble
hereof.
(gg) "Record Date" means, (i) May 1, with respect to an Additional
Interest Payment Date that occurs on May 15 and (ii) November 1, with respect to
an Additional Interest Payment Date that occurs on November 15.
(hh) "Record Holder" means, with respect to an Additional Interest Payment
Date relating to a Registrable Security for which any Additional Interest Amount
has accrued, a Notice Holder that was the holder of record of such Registrable
Security at the close of business on the Record Date relating to such Additional
Interest Payment Date.
(ii) "Registrable Securities" means the Notes, until such Notes have been
converted into the Underlying Common Stock, and, at all times, the Underlying
Common Stock and any securities into or for which such Underlying Common Stock
has been converted or exchanged, and any security issued with respect thereto
upon any stock dividend, split or similar event (each of the foregoing, a
"Covered Security") until, in the case of any such security, the earliest of:
(i) the date on which such security has been effectively registered
under the Act and disposed of in accordance with the Registration
Statement relating thereto;
(ii) the date on which such security may be resold without
restriction pursuant to Rule 144(k) or any successor provision thereto; or
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(iii) the date on which such security has been publicly sold
pursuant to Rule 144 or any successor provision thereto.
(jj) "Registration Expenses" has the meaning set forth in Section 5
hereof.
(kk) "Registration Statement" means any registration statement, under the
Securities Act, of the Company that covers any of the Registrable Securities
pursuant to this Agreement, including the Prospectus, amendments and supplements
to such registration statement, including post-effective amendments, all
exhibits and all materials incorporated by reference or deemed to be
incorporated by reference in such registration statement, Prospectus, amendment
or supplement.
(ll) "Rule 144" means Rule 144 under the Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
Commission.
(mm) "Shelf Registration Statement" means the Initial Shelf Registration
Statement and any Subsequent Shelf Registration Statement.
(nn) "Subsequent Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
(oo) "Subsequent Shelf Registration Statement" has the meaning set forth
in Section 2(b) hereof.
(pp) "Suspension Notice" has the meaning set forth in Section 3(i) hereof.
(qq) "Suspension Period" has the meaning set forth in Section 3(i) hereof.
(rr) "TIA" means the Trust Indenture Act of 1939, as amended.
(ss) "Trustee" means The Bank of New York, the trustee under the
Indenture.
(tt) "Underlying Common Stock" means the Common Stock issuable upon
conversion of the Notes.
2. Shelf Registration.
(a) The Company shall prepare and file, or cause to be prepared and filed,
with the Commission, by the date (the "Filing Deadline Date") that is ninety
(90) days after the Issue Date, a Registration Statement (the "Initial Shelf
Registration Statement") for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 under the Act registering the resale from time to
time by Holders thereof of all of the Registrable Securities (or, if
registration of Registrable Securities not held by Notice Holders is not
permitted by the rules and regulations of the Commission, then registering the
resale from time to time by Notice Holders of their Registrable Securities). The
Initial Shelf Registration Statement shall be on Form S-3 or another appropriate
form and shall provide for the registration of such Registrable Securities for
resale by such Holders in accordance with any method of distribution elected by
the Holders. The Company shall use its commercially reasonable best efforts to
(i) cause the Initial Shelf
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Registration Statement to become effective under the Act as promptly as
practicable but in any event by the date (the "Effectiveness Deadline Date")
that is two hundred and ten (210) days after the Issue Date and (ii) keep the
Initial Shelf Registration Statement (and any Subsequent Shelf Registration
Statement) continuously effective under the Act until the expiration of the
Effectiveness Period. At the time the Initial Shelf Registration Statement
becomes effective under the Act, each Holder that became a Notice Holder prior
to the date of such effectiveness shall be named as a selling securityholder in
the Initial Shelf Registration Statement and the related Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to purchasers of
Registrable Securities in accordance with applicable law.
(b) If any Shelf Registration Statement ceases to be effective under the
Act for any reason at any time during the Effectiveness Period, the Company
shall use its commercially reasonable best efforts to promptly cause such Shelf
Registration Statement to become effective under the Act (including obtaining
the prompt withdrawal of any order suspending the effectiveness of such Shelf
Registration Statement), and in any event shall, as soon as reasonably
practicable, (i) amend such Shelf Registration Statement in a manner reasonably
expected to obtain the withdrawal of any order suspending the effectiveness of
such Shelf Registration Statement or (ii) file an additional Registration
Statement (a "Subsequent Shelf Registration Statement") for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 of the Act
registering the resale from time to time by Holders thereof of all securities
that are Registrable Securities as of the time of such filing (or, if
registration of Registrable Securities not held by Notice Holders is not
permitted by the rules and regulations of the Commission, then registering the
resale from time to time by Notice Holders of their securities that are
Registrable Securities as of the time of such filing). If a Subsequent Shelf
Registration Statement is filed, the Company shall use its commercially
reasonable best efforts to (A) cause such Subsequent Shelf Registration
Statement to become effective under the Act as promptly as practicable after
such filing, but in no event later than the Subsequent Effectiveness Deadline
Date and (B) keep such Subsequent Shelf Registration Statement (or another
Subsequent Shelf Registration Statement) continuously effective until the end of
the Effectiveness Period. Any such Subsequent Shelf Registration Statement shall
be on Form S-3 or another appropriate form and shall provide for the
registration of such Registrable Securities for resale by such Holders in
accordance with any reasonable method of distribution elected by the Holders.
(c) The Company shall supplement and amend any Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement,
if required by the Act or as reasonably requested by the Initial Purchasers or
by the Trustee on behalf of the Holders of the Registrable Securities covered by
such Shelf Registration Statement.
(d)
(i) Each Holder of Registrable Securities agrees that, if such
Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in
accordance with this Section 2(d) and Section 3(i). Each Holder of
Registrable Securities wishing to sell Registrable Securities pursuant to
a Shelf Registration Statement and related Prospectus agrees to deliver a
completed and executed Notice and Questionnaire to the Company prior to
any attempted or actual distribution of
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Registrable Securities under a Shelf Registration Statement. If a Holder
becomes a Notice Holder on or after the date the Initial Shelf
Registration Statement becomes effective under the Act, the Company shall,
as promptly as practicable after the date such Holder became a Notice
Holder, and in any event, subject to clause (B) below, within the later of
(x) thirty (30) calendar days after such date or (y) ten (10) Business
Days after the expiration of any Suspension Period that either (I) is in
effect when such Holder became a Notice Holder or (II) is put into effect
within thirty (30) calendar days after the date such Holder became a
Notice Holder,
(A) if required by applicable law, file with the Commission a
supplement to the related Prospectus or a post-effective amendment
to the Shelf Registration Statement or file a Subsequent Shelf
Registration Statement and any necessary supplement or amendment to
any document incorporated therein by reference and file any other
required document with the Commission so that such Notice Holder is
named as a selling securityholder in a Shelf Registration Statement
and the related Prospectus in such a manner as to permit such Notice
Holder to deliver a Prospectus to purchasers of the Registrable
Securities in accordance with applicable law; provided, however,
that, if a post-effective amendment or a Subsequent Shelf
Registration Statement is required by the rules and regulations of
the Commission in order to permit resales by such Notice Holder, the
Company shall not be required to file more than one (1)
post-effective amendment or Subsequent Shelf Registration Statement
for such purpose in any ninety (90) day period;
(B) if the Company shall have filed a post-effective amendment
to the Shelf Registration Statement or filed a Subsequent Shelf
Registration Statement, the Company shall use its commercially
reasonable best efforts to cause such post-effective amendment or
Subsequent Shelf Registration Statement, as the case may be, to
become effective under the Act as promptly as practicable, but in
any event by the date (the "Subsequent Effectiveness Deadline Date")
that is ninety (90) days after the date such post-effective
amendment or Subsequent Shelf Registration Statement, as the case
may be, is required by this Section 2(d) to be filed with the
Commission;
(C) the Company shall provide such Notice Holder a reasonable
number of copies of any documents filed pursuant to clause (A)
above;
(D) the Company shall notify such Notice Holder as promptly as
practicable after the effectiveness under the Act of any
post-effective amendment or Subsequent Shelf Registration Statement
filed pursuant to clause (A) above;
(E) if such Holder became a Notice Holder during a Suspension
Period, or a Suspension Period is put into effect within thirty (30)
calendar days after the date such Holder became a Notice Holder, the
Company shall so inform such Notice Holder and shall take the
actions set forth in clauses (A), (B), (C) and (D) above within ten
(10) Business Days after expiration of such Suspension Period in
accordance with Section 3(i); and
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(F) if, under applicable law, the Company has more than one
option as to the type or manner of making any such filing, the
Company shall make the required filing or filings in the manner or
of a type that is reasonably expected to result in the earliest
availability of a Prospectus for effecting resales of Registrable
Securities.
(ii) Notwithstanding anything contained herein to the contrary, the
Company shall be under no obligation to name any Holder that is not
a Notice Holder as a selling securityholder in any Shelf
Registration Statement or related Prospectus; provided, however,
that any Holder that becomes a Notice Holder (regardless of when
such Holder became a Notice Holder) shall be named as a selling
securityholder in a Shelf Registration Statement or related
Prospectus in accordance with the requirements of this Section 2(d)
or Section 2(a), as applicable.
(e) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if
(i) the Initial Shelf Registration Statement has not been filed
with the Commission on or prior to the Filing Deadline Date;
(ii) the Initial Shelf Registration Statement has not become
effective under the Securities Act on or prior to the
Effectiveness Deadline Date;
(iii) either a supplement to a Prospectus, a post-effective
amendment or a Subsequent Shelf Registration Statement is
required to be filed with the Commission and fails to be filed
with the Commission within the prescribed period and in the
manner set forth in Section 2(d) (the date such filing is
required to be made being an "Additional Filing Deadline
Date") or, in the case of a post-effective amendment or a
Subsequent Shelf Registration Statement, such post-effective
amendment or Subsequent Registration Statement does not become
effective under the Act by the applicable Subsequent
Effectiveness Deadline Date;
(iv) the Initial Shelf Registration Statement or any Subsequent
Registration Statement is filed with the Commission and
becomes effective under the Act but shall thereafter cease to
be effective (without being succeeded by a new Registration
Statement that is filed and becomes effective under the Act)
or usable for the offer and sale of Registrable Securities in
the manner contemplated by this Agreement for a period of time
(including any Suspension Period) which shall exceed
forty-five (45) days in the aggregate in any three (3) month
period or ninety (90) days in the aggregate in any twelve (12)
month period; or
(v) any Registration Statement or amendment thereto, at the time
it becomes effective under the Act, or any Prospectus relating
thereto, at the time it is
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filed with the Commission or, if later, at the time the
Registration Statement to which such Prospectus relates
becomes effective under the Act, shall fail to name each
Holder as a selling securityholder in such a manner as to
permit such Holder to sell its Registrable Securities pursuant
to such Registration Statement and Prospectus in accordance
with applicable law, which Holder was entitled, pursuant to
the terms of this Agreement, to be so named (it being
understood that, without limitation, naming such Holder in a
manner that permits such Holder to sell only a portion of such
Holder's Registrable Securities referenced in such Holder's
Notice and Questionnaire shall be deemed to be an "Event" (as
defined below) for purposes of this clause (v)).
Each of the events of a type described in any of the foregoing clauses (i)
through (v) are individually referred to herein as an "Event," and
(V) the Filing Deadline Date, in the case of clause (i) above,
(W) the Effectiveness Deadline Date, in the case of clause
(ii) above,
(X) the Additional Filing Deadline Date or the Subsequent
Effectiveness Deadline Date, as the case may be, in the case of
clause (iii) above,
(Y) the date on which the duration of the ineffectiveness or
unusability of the Shelf Registration Statement exceeds the number
of days permitted by clause (iv) above, in the case of clause (iv)
above, and
(Z) the date the applicable Registration Statement or
amendment thereto shall become effective under the Act, or the date
the applicable Prospectus is filed with the Commission or, if later,
the time the Registration Statement to which such Prospectus relates
becomes effective under the Securities Act, as the case may be, in
the case of clause (v) above, are each herein referred to as an
"Event Date." Events shall be deemed to continue until the following
dates with respect to the respective types of Events:
(A) the date the Initial Shelf Registration Statement is filed
with the Commission, in the case of an Event of the type described
in clause (i) above;
(B) the date the Initial Shelf Registration Statement becomes
effective under the Securities Act, in the case of an Event of the
type described in clause (ii) above;
(C) the date a supplement to a Prospectus, a post-effective
amendment or a Subsequent Shelf Registration Statement, whichever is
required, is filed with the Commission (in the case of a supplement)
or becomes effective under the Act (in the case of a post-effective
amendment or a Subsequent Shelf Registration Statement), in the case
of an Event of the type described in clause (iii) above;
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(D) the date the Initial Shelf Registration Statement or the
Subsequent Shelf Registration Statement, as the case may be, becomes
effective and usable again, or the date another Subsequent Shelf
Registration Statement is filed with the Commission pursuant to
Section 2(b) and becomes effective, in the case of an Event of the
type described in clause (iv) above; or
(E) the date a supplement to the Prospectus is filed with the
Commission, or the date a post-effective amendment to the
Registration Statement becomes effective under the Act, or the date
a Subsequent Shelf Registration Statement becomes effective under
the Act, which supplement, post-effective amendment or Subsequent
Shelf Registration Statement, as the case may be, names as selling
securityholders, in such a manner as to permit them to sell their
Registrable Securities pursuant to the Registration Statement and
Prospectus supplement in accordance with applicable law, all Holders
entitled as herein provided to be so named, in the case of an Event
of the type described in clause (v) above.
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have
occurred and are continuing (an "Additional Interest Accrual Period"), the
Company agrees to pay, as additional interest ("additional interest") and
not as a penalty, an amount (the "Additional Interest Amount") at the rate
described below, payable periodically on each Additional Interest Payment
Date to Record Holders of Notes, to the extent of, for each such
Additional Interest Payment Date, the unpaid Additional Interest Amount
that has accrued to (but excluding) such Additional Interest Payment Date
(or, if the Additional Interest Accrual Period shall have ended prior to
such Additional Interest Payment Date, the day immediately after the last
day of such Additional Interest Accrual Period); provided, however, that
any unpaid Additional Interest Amount that has accrued with respect to any
Note, or portion thereof, called for Redemption on a Redemption Date, or
purchased by the Company pursuant to a Repurchase at Holder's Option or
Repurchase Upon Repurchase Event on an Option Purchase Date or Repurchase
Date, as the case may be, that is after the close of business on the
Record Date relating to such Additional Interest Payment Date and before
such Additional Interest Payment Date, shall, in each case, be instead
paid, on such Redemption Date, Option Purchase Date or Repurchase Date, as
the case may be, to the Holder who submitted such Note or portion thereof
for Redemption, Repurchase at Holder's Option or Repurchase Upon
Repurchase Event, as the case may be.
The Additional Interest Amount shall accrue at a rate per annum equal to
one quarter of one percent (0.25%) for the ninety (90) day period
beginning on, and including, Event Date and thereafter at a rate per annum
equal to one half of one percent (0.50%) of the aggregate principal amount
of the Notes of which such Record Holders of Notes were holders of record
at the close of business on the applicable Record Date; provided, however,
that:
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(I) unless there shall be a default in the payment of any
Additional Interest Amount, no Additional Interest Amounts shall
accrue as to any Note from and after the earlier of (x) the date
such Note is no longer a Registrable Security, (y) the date, and to
the extent, such Note is converted into cash and, if applicable,
shares of Common Stock in accordance with the Indenture and (z) the
expiration of the Effectiveness Period;
(II) only those Holders (or their subsequent transferees)
failing to be named as selling securityholders in the manner
prescribed in Section 2(e)(v) above shall be entitled to receive any
Additional Interest Amounts that have accrued solely with respect to
an Event of the type described in Section 2(e)(v) above (it being
understood that this clause (II) shall not impair any right of any
Holder to receive Additional Interest Amounts that have accrued with
respect to an Event other than an Event of the type described in
Section 2(e)(v) above);
(III) only those Holders (or their subsequent transferees)
whose delivery of a Notice and Questionnaire gave rise to the
obligation of the Company, pursuant to Section 2(d)(i), to file and,
if applicable, make effective under the Act the supplement,
post-effective amendment or Subsequent Shelf Registration Statement
referred to in Section 2(e)(iii) above shall be entitled to receive
any Additional Interest Amounts that have accrued solely with
respect to an Event of the type described in Section 2(e)(iii) above
(it being understood that this clause (III) shall not impair any
right of any Holder to receive Additional Interest Amounts that have
accrued with respect to an Event other than an Event of the type
described in Section 2(e)(iii) above); and
(IV) if a Note ceases to be outstanding during an Additional
Interest Accrual Period for which an Additional Interest Amount
would be payable with respect to such Note, then the Additional
Interest Amount payable hereunder with respect to such Note shall be
prorated on the basis of the number of full days such Note is
outstanding during such Additional Interest Amount.
The rate of accrual of the Additional Interest Amount with respect to any
period shall not exceed the rate provided for in this Section 2(e)
notwithstanding the occurrence of multiple concurrent Events. Following
the cure of all Events requiring the payment by the Company of Additional
Interest Amounts to the Holders of Notes pursuant to this Section, the
accrual of Additional Interest Amounts shall cease (without in any way
limiting the effect of any subsequent Event requiring the payment of
Additional Interest Amounts by the Company). All installments of
Additional Interest shall be paid in the same manner as payments of
interest pursuant to the Indenture.
All of the Company's obligations set forth in this Section 2(e) that are
outstanding with respect to any Registrable Security at the time such
Registrable Security ceases to be a Registrable Security shall survive
until such time as all such obligations with respect to such security have
been satisfied in full (notwithstanding termination of this Agreement
pursuant to Section 9(n)).
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The parties hereto agree that the additional interest provided for in this
Section 2(e) constitutes a reasonable estimate of the damages in respect
of Covered Securities that may be incurred by Holders by reason of an
Event relating to such Covered Securities, including, without limitation,
the failure of a Shelf Registration Statement to be filed, become
effective under the Act, amended or replaced to include the names of all
Notice Holders or available for effecting resales of Registrable
Securities in accordance with the provisions hereof and therefore the
payment of the additional interest provided for in this Section 2(e) shall
constitute a Holder's sole and exclusive monetary remedy for any such
failure (in addition to any rights Holders may have pursuant to Section
6).
If any Additional Interest Amounts are not paid when due, then, to the
extent permitted by law, such overdue Additional Interest Amounts, if any,
shall bear interest, compounded semi-annually, until paid at the rate of
interest payable with respect to overdue amounts on the Notes pursuant to
Section 2.12 of the Indenture.
(f) The Trustee shall be entitled, on behalf of Holders, to seek
any available remedy for the enforcement of this Agreement,
including for the payment of any Additional Interest Amount.
3. Registration Procedures. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the Commission a Shelf Registration
Statement on Form S-3 or any other appropriate form under the Act available for
the sale of the Registrable Securities by the Holders thereof in accordance with
the intended method or methods of distribution thereof, and use its commercially
reasonable best efforts to cause each such Shelf Registration Statement to
become effective under the Act and remain effective under the Act as provided
herein; provided, that, before filing any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto with the Commission, the
Company shall furnish to the Initial Purchasers and counsel for the Initial
Purchasers (or, if applicable, separate counsel for the Record Holders) copies
of all such documents proposed to be filed and reflect in each such document
when so filed with the Commission such comments as the Initial Purchasers or
such counsel reasonably shall propose within two (2) Business Days of the
delivery of such copies to the Initial Purchasers and such counsel.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement or Subsequent Shelf
Registration Statement continuously effective until the expiration of the
Effectiveness Period; cause the related Prospectus to be supplemented by any
required Prospectus supplement and, as so supplemented, to be filed with the
Commission pursuant to Rule 424 (or any similar provisions then in force) under
the Act; and comply with the provisions of the Act applicable to it with respect
to the disposition of all securities covered by each Shelf Registration
Statement during the Effectiveness Period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Shelf
Registration Statement as so amended or such Prospectus as so supplemented.
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(c) As promptly as practicable, give notice to the Notice Holders,
UBS Securities LLC and, if designated, one separate counsel designated in
writing to the Company by Holders of a majority of the Registrable Securities
("Designated Counsel"):
(i) when any Prospectus, Prospectus supplement, Shelf
Registration Statement or post-effective amendment to a Shelf
Registration Statement has been filed with the Commission and, with
respect to a Shelf Registration Statement or any post-effective
amendment, when the same has become effective under the Act,
(ii) of any request, following the effectiveness of a Shelf
Registration Statement under the Act, by the Commission or any other
governmental authority for amendments or supplements to such Shelf
Registration Statement or the related Prospectus or for additional
information,
(iii) of the issuance by the Commission or any other
governmental authority of any stop order suspending the
effectiveness of any Shelf Registration Statement or the initiation
or threatening of any proceedings for that purpose,
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose,
(v) after the effective date of any Shelf Registration
Statement filed with the Commission pursuant to this Agreement, of
the occurrence of (but not the nature of or details concerning) a
Material Event, and
(vi) of the determination by the Company that a post-effective
amendment to a Shelf Registration Statement or a Subsequent Shelf
Registration Statement will be filed with the Commission, which
notice may, at the discretion of the Company (or as required
pursuant to Section 3(i)), state that it constitutes a Suspension
Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use its commercially reasonable best efforts to (i) prevent the
issuance of, and, if issued, to obtain the withdrawal of, any order suspending
the effectiveness of a Shelf Registration Statement and (ii) obtain the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction in which they have
been qualified for sale, in either case at the earliest possible moment, and
provide prompt notice to each Notice Holder, UBS Securities LLC and, if
applicable, Designated Counsel, of the withdrawal or lifting of any such order
or suspension.
(e) If requested by any Notice Holder, as promptly as practicable
incorporate in a Prospectus supplement or a post-effective amendment to a Shelf
Registration Statement such information as such Notice Holder (if applicable,
based on advice of Designated Counsel) shall determine to be required to be
included therein by applicable law and make any required filings of such
Prospectus supplement or such post-effective amendment; provided, however, that
the
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Company shall not be required to take any actions under this Section 3(e) that
are not in compliance with applicable law.
(f) As promptly as practicable, furnish to each Notice Holder and to
UBS Securities LLC, without charge, at least one (1) conformed copy of each
Shelf Registration Statement and each amendment thereto (but excluding
schedules, exhibits and all documents incorporated or deemed to be incorporated
therein by reference), and at least one copy of any Prospectus relating to the
Registrable Securities.
(g) During the Effectiveness Period, deliver to each Notice Holder,
in connection with any sale of Registrable Securities pursuant to a Shelf
Registration Statement, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities and any amendment or
supplement thereto as such Notice Holder may reasonably request; and the Company
hereby consents (except during such periods that a Suspension Notice is
outstanding and has not been revoked) to the use of such Prospectus and each
amendment or supplement thereto by each Notice Holder, in connection with any
offering and sale of the Registrable Securities covered by such Prospectus or
any amendment or supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities
pursuant to a Shelf Registration Statement, use its commercially reasonable best
efforts to register or qualify or cooperate with the Notice Holders in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any Notice Holder reasonably requests in writing (which request may be
included in the Notice and Questionnaire); use its commercially reasonable best
efforts to keep each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period in connection with such Notice
Holder's offer and sale of Registrable Securities pursuant to such registration
or qualification (or exemption therefrom) and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set forth in the
relevant Shelf Registration Statement and the related Prospectus; provided,
however, that the Company will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified.
(i) Upon: (A) the issuance by the Commission of a stop order
suspending the effectiveness of any Shelf Registration Statement or the
initiation of proceedings with respect to any Shelf Registration Statement under
Section 8(d) or 8(e) of the Act; (B) the occurrence of any event or the
existence of any fact as a result of which any Shelf Registration Statement
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any Prospectus shall contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; or (C) the occurrence or existence of any pending
corporate development (a "Material Event") that, in the reasonable discretion of
the Company, makes it appropriate to suspend the availability of any Shelf
Registration Statement and the related Prospectus,
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(i) in the case of clause (B) or (C) above, subject to the
next sentence, as promptly as reasonably practicable, prepare and
file, if necessary pursuant to applicable law, a post-effective
amendment to such Shelf Registration Statement or a supplement to
such Prospectus or any document incorporated therein by reference or
file any other required document that would be incorporated by
reference into such Shelf Registration Statement and Prospectus so
that such Shelf Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and so that such Prospectus does not contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, subject
to the next sentence, use its commercially reasonable best efforts
to cause it to become effective under the Act as promptly as
practicable, and
(ii) give notice to the Notice Holders (and, if applicable,
separate counsel for the Notice Holders) that the availability of
the Shelf Registration Statement is suspended (a "Suspension
Notice") (and, upon receipt of any Suspension Notice, each Notice
Holder agrees not to sell any Registrable Securities pursuant to
such Shelf Registration Statement until such Notice Holder's receipt
of copies of the supplemented or amended Prospectus provided for in
clause (i) above or until such Notice Holder is advised in writing
by the Company that the Prospectus may be used).
The Company will use its commercially reasonable best efforts to ensure that the
use of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the reasonable judgment of the Company, the Shelf Registration Statement does
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and the Prospectus does not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and (z) in the case of clause (C) above, as soon as, in
the reasonable discretion of the Company, such suspension is no longer
appropriate. The period during which the availability of the Shelf Registration
Statement and any Prospectus may be suspended (the "Suspension Period") without
the Company incurring any obligation to pay additional interest pursuant to
Section 2(e) shall not exceed forty-five (45) days in the aggregate in any three
(3) month period or ninety (90) days in the aggregate in any twelve (12) month
period.
(j) If the Notice Holders retain underwriters to participate in the
disposition of Registrable Securities pursuant to a Shelf Registration Statement
(or if otherwise reasonably requested by Notice Holders, provided such Notice
Holders have been advised in writing by Designated Counsel that such Notice
Holders have a due diligence defense to liabilities under the Securities Act in
respect of such Shelf Registration Statement) make available for inspection
during normal business hours by such Designated Counsel and such underwriters,
all relevant
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financial and other records and pertinent corporate documents and properties of
the Company and its subsidiaries, and cause the appropriate officers, directors
and employees of the Company and its subsidiaries to make available for
inspection during normal business hours all relevant information reasonably
requested by such Designated Counsel or such underwriters, in each case as is
customary for similar "due diligence" examinations; provided, however, that such
persons shall, at the Company's request, first agree in writing with the Company
that any information that is reasonably and in good faith designated by the
Company in writing as confidential at the time of delivery of such information
shall be kept confidential by such persons and shall be used solely for the
purposes of exercising rights under this Agreement, unless (i) disclosure of
such information is required by court or administrative order or is necessary to
respond to inquiries of governmental or regulatory authorities (after reasonable
notice is provided to the Company), (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to federal
securities laws in connection with the filing of any Shelf Registration
Statement or the use of any Prospectus referred to in this Agreement) or
necessary to defend or prosecute a claim brought against or by any such persons
(e.g., to establish a "due diligence" defense), (iii) such information becomes
generally available to the public other than as a result of a disclosure or
failure to safeguard by any such person or (iv) such information becomes
available to any such person from a source other than the Company and such
source is not bound by a confidentiality agreement or is not otherwise under a
duty of trust to the Company; provided further, that the foregoing inspection
and information gathering shall, to the greatest extent possible, be coordinated
on behalf of all the Notice Holders and the other parties entitled thereto by
the counsel, referred to in Section 5, for the Holders in connection with Shelf
Registration Statements.
(k) Comply with all applicable rules and regulations of the
Commission and with the reporting requirements of Section 13(a) or Section 15(d)
of the Exchange Act; and make generally available to its securityholders
earnings statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Act and Rule 158 thereunder.
(l) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold pursuant to a Shelf Registration Statement, which certificates shall not
bear any restrictive legends, and cause such Registrable Securities to be in
such denominations as are permitted by the Indenture and registered in such
names as such Notice Holder may request in writing at least two (2) Business
Days prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by
a Shelf Registration Statement not later than the effective date of the Initial
Shelf Registration Statement and provide the Trustee and the transfer agent for
the Common Stock with certificates for the Registrable Securities that are in a
form eligible for deposit with The Depository Trust Company.
(n) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(o) If the Notice Holders retain underwriters to participate in the
disposition of Registrable Securities pursuant to a Shelf Registration
Statement, take all actions and enter into such customary agreements (including,
if requested, an underwriting agreement in
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customary form) as are necessary in order to permit disposition of such
Registrable Securities and in such connection:
(i) the Company shall make such representations and warranties
to the Holders of such Registrable Securities and the underwriters in form,
substance and scope as would be customarily made by the Company to underwriters
in similar offerings of securities;
(ii) the Company shall obtain customary opinions of counsel of
the Company addressed to the underwriters covering the matters that would be
customarily covered in opinions requested in sales of securities or underwritten
offerings;
(iii) the Company shall obtain "comfort letters" and updates
thereof from the Company's independent certified public accountants (and, if
necessary, any other independent certified public accountants of any subsidiary
of the Company or of any business acquired by the Company for which financial
statements are, or are required to be, included in any Shelf Registration
Statement) addressed to the underwriters (to the extent consistent with
Statement on Auditing Standards No. 72 of the American Institute of Certified
Public Accounts), such letters to be in customary form and covering matters of
the type that would customarily be covered in "comfort letters" to underwriters
in connection with similar underwritten offerings;
(iv) the Company shall cause any such underwriting agreement
to contain indemnification provisions and procedures substantially equivalent to
the indemnification provisions and procedures set forth in Section 6 hereof with
respect to the underwriters and all other parties to be indemnified pursuant to
said Section; and
(v) the Company shall deliver such documents and certificates
as may be reasonably requested and as are customarily delivered in similar
offerings to the holders of a majority of the Registrable Securities being sold
and to the Managing Underwriters, if any;
the above to be done in connection with each underwriting agreement as and to
the extent required thereunder.
(p) Cause the Indenture to be qualified under the TIA not later than
the effective date of the Initial Shelf Registration Statement; and, in
connection therewith, cooperate with the Trustee to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA and execute, and use its commercially reasonable best
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be filed with
the Commission to enable the Indenture to be so qualified in a timely manner.
(q) Use its commercially reasonable best efforts to cause the
Underlying Common Stock to be approved for quotation on the Nasdaq National
Market.
(r) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as a
member of an underwriting syndicate or selling group or "participate in a public
offering" (within the meaning of the Conduct Rules (the "NASD Rules") of the
National Association of Securities Dealers, Inc.) thereof, whether as a Holder
of such Registrable Securities or as an underwriter, a placement or
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sales agent or a broker or dealer in respect thereof, or otherwise, the Company
will assist such broker-dealer in complying with the requirements of such NASD
Rules, including, without limitation, by: (i) if such NASD Rules, including NASD
Rule 2720, shall so require, engaging a "qualified independent underwriter" (as
defined in NASD Rule 2720) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereof and, if any portion of the
offering contemplated by such Shelf Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the yield
or price, as the case may be, of such Registrable Securities; (ii) indemnifying
any such qualified independent underwriter to the extent of the indemnification
of underwriters provided in Section 6 hereof; and (iii) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the NASD Rules.
4. Holder's Obligations. Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Shelf
Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with a completed and executed Notice and
Questionnaire as required pursuant to Section 2(d) hereof (including the
information required to be included in such Notice and Questionnaire) and the
information set forth in the next sentence. Each Notice Holder agrees promptly
to furnish to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Notice Holder
not misleading and any other information regarding such Notice Holder and the
distribution of such Registrable Securities as the Company may from time to time
reasonably request. Any sale of any Registrable Securities by any Holder shall
constitute a representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set forth in the
Prospectus delivered by such Holder in connection with such disposition, that
such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Holder or its plan
of distribution and that such Prospectus does not as of the time of such sale
omit to state any material fact relating to or provided by such Holder or its
plan of distribution necessary in order to make the statements in such
Prospectus, in the light of the circumstances under which they were made, not
misleading. If any Notice Holder retains underwriters to participate in the
distribution of Registrable Securities pursuant to a Shelf Registration
Statement, such Notice Holder agrees to enter into, and use commercially
reasonable efforts to cause any such underwriters to enter into, an underwriting
agreement in customary form for the type of underwriting contemplated.
5. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance by the Company of its obligations
under Section 2 and Section 3 of this Agreement whether or not any of the Shelf
Registration Statements are filed or declared effective under the Act. Such fees
and expenses ("Registration Expenses") shall include, without limitation, (i)
all registration and filing fees and expenses (including, without limitation,
fees and expenses (x) with respect to filings required to be made with the
National Association of Securities Dealers, Inc. and (y) of compliance with
federal securities laws and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of one counsel for the
Holders in connection with Blue Sky qualifications of the Registrable Securities
under the laws of such jurisdictions as the Notice Holders of a majority of the
Registrable Securities being sold pursuant to a Shelf Registration Statement may
designate), (ii) all printing expenses
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(including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and printing Prospectuses), (iii) all duplication and mailing expenses
relating to copies of any Shelf Registration Statement or Prospectus delivered
to any Holders hereunder, (iv) all fees and disbursements of counsel for the
Company; and (v) all fees and disbursements of the Trustee and its counsel and
of the registrar and transfer agent for the Common Stock.
6. Indemnification, Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each
Initial Purchaser, each Holder, each person (a "Controlling Person"), if any,
who controls any Initial Purchaser or Holder within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act and the respective officers,
directors, partners and employees of any Initial Purchaser, the Holders or any
Controlling Person, from and against any loss, damage, expense, liability, claim
or any actions in respect thereof (including the reasonable cost of
investigation) which such Indemnified Party (as defined below) may incur or
become subject to under the Act, the Exchange Act or otherwise, insofar as such
loss, damage, expense, liability, claim or action arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
any Shelf Registration Statement or Prospectus, including any document
incorporated by reference therein, or in any amendment or supplement thereto or
in any preliminary prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated in any Shelf
Registration Statement or in any amendment or supplement thereto or necessary to
make the statements therein not misleading, or arises out of or is based upon
any omission or alleged omission to state a material fact necessary in order to
make the statements made in any Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, in the light of the circumstances
under which such statements were made, not misleading, and the Company shall
reimburse, as incurred, the Indemnified Parties for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, damage, expense, liability, claim or action in respect thereof;
provided, however, that the Company shall not be required to provide any
indemnity pursuant to this Section 6(a) in any such case insofar as any such
loss, damage, expense, liability, claim or action arises out of or is based upon
any untrue statement or omission or alleged untrue statement or omission of a
material fact contained in, or omitted from, and in conformity with information
furnished in writing by or on behalf of an Initial Purchaser or a Holder to the
Company expressly for use in, any Shelf Registration Statement or any
Prospectus. This indemnity agreement will be in addition to any liability which
the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify,
defend and hold harmless the Company, any Controlling Person of the Company and
their respective directors, officers and employees from and against any loss,
damage, expense, liability, claim or any actions in respect thereof (including
the reasonable cost of investigation) which such Indemnified Party may incur or
become subject to under the Act, the Exchange Act or otherwise, insofar as such
loss, damage, expense, liability, claim or action arises
-18-
out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information (the "Holder
Information") furnished in writing by or on behalf of such Holder to the Company
expressly for use in, any Shelf Registration Statement or Prospectus, or arises
out of or is based upon any omission or alleged omission to state a material
fact in connection with such Holder Information required to be stated in any
Shelf Registration Statement or Prospectus or necessary to make such Holder
Information not misleading; and, subject to the limitation set forth in the
immediately preceding clause, each Holder shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the Company or
any such controlling person in connection with investigating or defending any
loss, damage, expense, liability, claim or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to the Company or any of its controlling persons. In no event
shall the liability of any selling Holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds received by such Holder
upon the sale, pursuant to the Shelf Registration Statement, of the Registrable
Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a "Proceeding") is
brought against any person in respect of which indemnity may be sought pursuant
to either Section 6(a) or Section 6(b), such person (the "Indemnified Party")
shall promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Party") in writing of the institution of such Proceeding and the
Indemnifying Party shall assume the defense of such Proceeding; provided,
however, that the omission to so notify such Indemnifying Party shall not
relieve such Indemnifying Party from any liability which it may have to such
Indemnified Party or otherwise. Such Indemnified Party shall have the right to
employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless the employment
of such counsel shall have been authorized in writing by such Indemnifying Party
in connection with the defense of such Proceeding or such Indemnifying Party
shall not have employed counsel to have charge of the defense of such Proceeding
within a reasonable period of time or such Indemnified Party shall have
reasonably concluded upon the written advice of counsel that there may be one or
more defenses available to it that are different from, additional to or in
conflict with those available to such Indemnifying Party (in which case such
Indemnifying Party shall not have the right to direct that portion of the
defense of such Proceeding on behalf of the Indemnified Party, but such
Indemnifying Party may employ counsel and participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
Indemnifying Party), in any of which events such reasonable fees and expenses
shall be borne by such Indemnifying Party and paid as incurred (it being
understood, however, that such Indemnifying Party shall not be liable for the
expenses of more than one separate counsel in any one Proceeding or series of
related Proceedings together with reasonably necessary local counsel
representing the Indemnified Parties who are parties to such action). An
Indemnifying Party shall not be liable for any settlement of such Proceeding
effected without the written consent of such Indemnifying Party, but if settled
with the written consent of such Indemnifying Party, such Indemnifying Party
agrees to indemnify and hold harmless an Indemnified Party from and against any
loss or liability by reason of such settlement. No Indemnifying Party shall,
without the prior written consent of any Indemnified Party, effect any
settlement of any pending or threatened Proceeding in respect of which such
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault or culpability or a failure to act by or on behalf of such Indemnified
Party.
-19-
(d) If the indemnification provided for in this Section 6 is
unavailable to an Indemnified Party under Section 6(a) or Section 6(b), or
insufficient to hold such Indemnified Party harmless, in respect of any losses,
damages, expenses, liabilities, claims or actions referred to therein, then each
applicable 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, damages, expenses, liabilities, claims or actions (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company, on the one hand, and by the Holders or the Initial Purchasers, on
the other hand, from the offering of the Registrable Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and of the Holders or the Initial Purchasers, on the other hand,
in connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities, claims or actions, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Holders or the Initial Purchasers, on the other hand, shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company or by the Holders or the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities, claims and actions referred to above shall be deemed to include any
reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant to this Section 6
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in
Section 6(d) above. Notwithstanding the provisions of this Section 6, no Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities giving rise to such contribution
obligation and sold by such Holder were offered to the public exceeds the amount
of any damages which it 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' respective obligations to
contribute pursuant to this Section 6 are several in proportion to the
respective amount of Registrable Securities they have sold pursuant to a Shelf
Registration Statement, and not joint. The remedies provided for in this Section
6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or the Initial Purchasers or any person controlling any Holder or
Initial Purchaser, or the Company, or the Company's officers or directors or any
person controlling the Company and (iii) the sale of any Registrable Security by
any Holder.
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7. Information Requirements. The Company covenants that, if at any time
before the end of the Effectiveness Period it is not subject to the reporting
requirements of the Exchange Act, it will cooperate with any Holder of
Registrable Securities and take such further action as any Holder of Registrable
Securities may reasonably request in writing (including, without limitation,
making such representations as any such Holder may reasonably request), all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Act within the limitations of the
exemptions provided by Rule 144, Rule 144A and Regulation S under the Act and
customarily taken in connection with sales pursuant to such exemptions. Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether the Company has complied with the reporting
requirements of the Exchange Act, unless such a statement has been included in
the Company's most recent report filed with the Commission pursuant to Section
13 or Section 15(d) of Exchange Act.
8. Underwritten Registrations.
---------------------------
(a) If any of the Registrable Securities covered by the Shelf
Registration Statement are to be offered and sold in an underwritten
offering, the investment banker or investment bankers and manager or
managers that will administer the offering ("Managing Underwriters") shall
be selected by the holders of a majority of such Registrable Securities to
be included in such offering with the consent of the Company, which shall
not be unreasonably withheld.
(b) No person (including, without limitation, a Holder or
underwriter) may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Registrable Securities
on the basis reasonably provided in any underwriting arrangements approved
by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous.
--------------
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under this Agreement in such
circumstances where additional interest is not payable pursuant to Section
2(e) (including, without limitation, Events occurring with respect to
Underlying Common Stock) may result in material irreparable injury to the
Initial Purchasers and 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, any Initial
Purchaser or Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under this Agreement, and,
in such circumstances, the Company agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement,
enter into, any agreement with respect to the Company's securities that
conflicts with the rights granted to the Holders in this Agreement. The
Company represents and warrants that the rights granted to the
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Holders hereunder do not in any way conflict with the rights granted to
the holders of the Company's securities under any other agreements. The
Company will not take any action with respect to the Registrable
Securities which would materially adversely affect the ability of any of
the Holders to include such Registrable Securities in a registration
undertaken pursuant to this Agreement, and after the date hereof, the
Company shall not grant to any of its securityholders (other than Holders
in such capacity) the right to include any of the Company's securities in
any Shelf Registration Statement filed pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written
consent of Holders of a majority of outstanding Registrable Securities;
provided, however, that, no consent is necessary from any of the Holders
in the event that this Agreement is amended, modified or supplemented for
the purpose of curing any ambiguity, defect or inconsistency that does not
materially adversely affect the rights of any Holders. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant to a Shelf
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by Holders
of at least a majority of the Registrable Securities being sold by such
Holders pursuant to such Shelf Registration Statement; provided, however,
that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Each Holder of Registrable Securities outstanding at
the time of any such amendment, modification, supplement, waiver or
consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 9(c),
whether or not any notice, writing or marking indicating such amendment,
modification, supplement, waiver or consent appears on the Registrable
Securities or is delivered to such Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by
facsimile, by courier guaranteeing overnight delivery or by first-class
mail, return receipt requested, and shall be deemed given (A) when made,
if made by hand delivery, (B) upon confirmation, if made by facsimile, (C)
one (1) Business Day after being deposited with such courier, if made by
overnight courier or (D) on the date indicated on the notice of receipt,
if made by first-class mail, to the parties as follows:
(i) if to a Holder, at the most current address given by
such Holder to the Company in a Notice and Questionnaire
or any amendment thereto;
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(ii) if to the Company, to:
CONMED Corporation
525 French Road
Utica, New York 13502
Attention: General Counsel
Facsimile No.: (315) 793-8929
(iii) if to the Initial Purchasers, to:
UBS Securities LLC
299 Park Avenue
New York, New York 10171
Attention: Syndicate Department
Telecopy No.: (212) 713-1205
with a copy to (for informational purposes only):
UBS Securities LLC
299 Park Avenue
New York, New York 10171
Attention: Legal Department
Telecopy No.: (212) 821-4042
and
UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Syndicate Department
Telecopy No.: (203) 719-0683
or to such other address as such person may have furnished to the other persons
identified in this Section 9(d) in writing in accordance herewith.
(e) Majority of Registrable Securities. For purposes of determining
what constitutes holders of a majority of Registrable Securities, as referred to
in this Agreement, a majority shall constitute a majority in aggregate principal
amount of Registrable Securities, treating each relevant holder of shares of
Underlying Common Stock of the Notes as a holder of the aggregate principal
amount of Notes in respect of which such Common Stock was issued.
(f) Approval of Holders. Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its "affiliates" (as such term is
defined in Rule 405 under the Act) (other than the Initial Purchasers or
subsequent Holders of Registrable Securities, if the Initial Purchasers or such
subsequent Holders are deemed to be such affiliates solely by reason of their
holdings of
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such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(g) Third Party Beneficiaries. Subject to their compliance with
their obligations hereunder, 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. The
Trustee shall be entitled to the rights granted to it pursuant to this
Agreement.
(h) Successors and Assigns. Any person who purchases any Covered
Security from any Initial Purchaser or from any Holder shall be deemed, for
purposes of this Agreement, to be an assignee of such Initial Purchaser or such
Holder, as the case may be. This Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of each of the parties hereto
and shall inure to the benefit of and be binding upon each Holder of any Covered
Security.
(i) 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 original and all of which taken together
shall constitute one and the same agreement.
(j) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(k) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(l) Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their commercially
reasonable best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
(m) Entire Agreement. This Agreement is intended by the parties
hereto as a final expression of their agreement and is 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 and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to
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such registration rights. No party hereto shall have any rights, duties or
obligations other than those specifically set forth in this Agreement.
(n) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, Section 5 or Section 6 hereof
and the obligations to make payments of and provide for additional interest
under Section 2(e) hereof to the extent such additional interest accrues prior
to the end of the Effectiveness Period and to the extent any overdue additional
interest accrues in accordance with the last paragraph of such Section 2(e),
each of which shall remain in effect in accordance with its terms.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
Very truly yours,
CONMED CORPORATION
By: /s/ Daniel S. Jonas
---------------------
Name: Daniel S. Jonas
Title: VP Legal Affairs, General Counsel
Accepted and agreed to as of
the date first above written,
on behalf of itself and the
other several Initial
Purchasers:
UBS SECURITIES LLC
By: /s/ David Gately
--------------------------------
Name: David Gately
Title: Managing Director
By: /s/ Jill Kosner
--------------------------------
Name: Jill Kosner
Title: Director
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