EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of May 7, 1996
By and Among
DADE INTERNATIONAL INC.
and
BT SECURITIES CORPORATION
CS FIRST BOSTON CORPORATION
and
MORGAN STANLEY & CO. INCORPORATED
as Initial Purchasers
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$350,000,000
11 1/8% SENIOR SUBORDINATED NOTES DUE 2006
TABLE OF CONTENTS
Page
1. Definitions................................................. 1
2. Exchange Offer.............................................. 5
3. Shelf Registration.......................................... 8
4. Additional Interest......................................... 9
5. Registration Procedures..................................... 12
6. Registration Expenses....................................... 22
7. Indemnification............................................. 23
8. Rule 144 and 144A........................................... 27
9. Underwritten Registrations.................................. 28
10. Miscellaneous............................................... 28
(a) No Inconsistent Agreements............................ 28
(b) Adjustments Affecting Registrable
Notes............................................... 29
(c) Amendments and Waivers................................ 29
(d) Notices............................................... 29
(e) Successors and Assigns................................ 30
(f) Counterparts.......................................... 31
(g) Headings.............................................. 31
(h) Governing Law......................................... 31
(i) Severability.......................................... 31
(j) Notes Held by the Company or its
Affiliates.......................................... 31
(k) Third Party Beneficiaries............................. 31
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this
"Agreement"), dated as of May 7, 1996, is being entered into by
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and among Dade International Inc., a Delaware corporation (the
"Company"), and BT Securities Corporation, CS First Boston
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Corporation and Morgan Stanley & Co. Incorporated (the "Initial
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Purchasers").
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This Agreement is being entered into in connection
with the Purchase Agreement, dated April 30, 1996, between the
Company and the Initial Purchasers (the "Purchase Agreement"),
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which provides for the sale by the Company to the Initial
Purchasers of $350,000,000 aggregate principal amount of the
Company's 11 1/8% Senior Subordinated Notes due 2006 (the
"Notes"). 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 for the
benefit of the Initial Purchasers and their direct and indirect
transferees. The execution and delivery of this Agreement is a
condition to the obligation of the Initial Purchasers to
purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall
have the following meanings:
Additional Interest: See Section 4(a) hereof.
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Advice: See the last paragraph of Section 5 hereof.
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Agreement: See the first introductory paragraph
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hereto.
Applicable Period: See Section 2(b) hereof.
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Closing Date: The Closing Date as defined in the
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Purchase Agreement.
Company: See the first introductory paragraph
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hereto.
Effectiveness Date: The 225th day after the Issue
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Date.
Effectiveness Period: See Section 3(a) hereof.
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Event Date: See Section 4(b) hereof.
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Exchange Act: The Securities Exchange Act of 1934,
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as amended, and the rules and regulations of the SEC
promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
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Exchange Offer: See Section 2(a) hereof.
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Exchange Registration Statement: See Section 2(a)
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hereof.
Filing Date: The 150th day after the Issue Date.
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Holder: Any holder of a Registrable Note or
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Registrable Notes.
Indemnified Person: See Section 7(c) hereof.
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Indemnifying Person: See Section 7(c) hereof.
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Indenture: The Indenture, dated as of May 7, 1996
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between the Company and IBJ Schroder Bank & Trust Company, as
trustee, pursuant to which the Notes are being issued, as
amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchasers: See the first introductory
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paragraph hereto.
Inspectors: See Section 5(o) hereof.
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Issue Date: The date on which the original Notes
were sold to the Initial Purchasers pursuant to the Purchase
Agreement.
NASD: See Section 5(s) hereof.
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Notes: See the second introductory paragraph hereto.
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Participant: See Section 7(a) hereof.
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Participating Broker-Dealer: See Section 2(b)
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hereof.
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Person: An individual, trustee, corporation,
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partnership, limited liability company, joint stock company,
trust, unincorporated association, union, business association,
firm or other legal entity.
Private Exchange: See Section 2(b) hereof.
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Private Exchange Notes: See Section 2(b) hereof.
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Prospectus: The prospectus included in any
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Registration Statement (including, without limitation, any
prospectus subject to completion and a prospectus that includes
any information previously omitted from a prospectus filed as
part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other
amendments and supplements to the Prospectus, with respect to
the terms of the offering of any portion of the Registrable
Notes covered by such Registration Statement including post-
effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such
Prospectus.
Purchase Agreement: See the second introductory
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paragraph hereto.
Records: See Section 5(o) hereof.
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Registrable Notes: Each Note upon original issuance
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of the Notes and at all times subsequent thereto, each Exchange
Note as to which Section 2(c)(v) hereof is applicable upon
original issuance and at all times subsequent thereto and each
Private Exchange Note upon original issuance thereof and at all
times subsequent thereto, until in the case of any such Note,
Exchange Note or Private Exchange Note, as the case may be, the
earliest to occur of (i) a Registration Statement (other than,
with respect to any Exchange Note as to which Section 2(c)(v)
hereof is applicable, the Exchange Registration Statement)
covering such Note, Exchange Note or Private Exchange Note, as
the case may be, has been declared effective by the SEC and
such Note (unless such Note was not tendered for exchange by
the Holder thereof), Exchange Note or Private Exchange Note, as
the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note, Exchange Note
or Private Exchange Note, as the case may be, is sold in
compliance with Rule 144, or (iii) such Note, Exchange Note or
Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture.
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Registration Statement: Any registration statement
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of the Company, including, but not limited to, the Exchange
Registration Statement, that covers any of the Registrable
Notes pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits,
and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities
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Act, as such Rule may be amended from time to time, or any
similar rule (other than Rule 144A) or regulation hereafter
adopted by the SEC providing for offers and sales of securities
made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus
delivery requirements of the Securities Act.
Rule 144A: Rule 144A promulgated under the
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Securities Act, as such Rule may be amended from time to time,
or any similar rule (other than Rule 144) or regulation
hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities
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Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as
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amended, and the rules and regulations of the SEC promulgated
thereunder.
Shelf Notice: See Section 2(c) hereof.
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Shelf Registration: See Section 3(a) hereof.
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TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee under the Indenture and, if
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existent, the trustee under any indenture governing the
Exchange Notes and Private Exchange Notes (if any).
Underwritten registration or underwritten offering:
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A registration in which securities of the Company are sold to
an underwriter for reoffering to the public.
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2. Exchange Offer
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(a) The Company agrees to file with the SEC no later
than the Filing Date an offer to exchange (the "Exchange
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Offer") any and all of the Registrable Notes (other than the
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Private Exchange Notes, if any) for a like aggregate principal
amount of debt securities of the Company, which are identical
in all material respects to the Notes (the "Exchange Notes")
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(and which are entitled to the benefits of the Indenture or a
trust indenture which is identical in all material respects to
the Indenture (other than such changes to the Indenture or any
such identical trust indenture as are necessary to comply with
any requirements of the SEC to effect or maintain the
qualification thereof under the TIA) and which, in either case,
has been qualified under the TIA), except that the Exchange
Notes (other than Private Exchange Notes, if any) shall have
been registered pursuant to an effective Registration Statement
under the Securities Act and shall contain no restrictive
legend thereon. The Exchange Offer shall be registered under
the Securities Act on the appropriate form (the "Exchange
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Registration Statement") and shall comply with all applicable
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tender offer rules and regulations under the Exchange Act. The
Company agrees to use its best efforts to (x) cause the
Exchange Registration Statement to be declared effective under
the Securities Act on or before the Effectiveness Date; (y)
keep the Exchange Offer open for at least 20 business days (or
longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to Holders; and (z) con-
summate the Exchange Offer on or prior to the 270th day
following the Issue Date. If after such Exchange Registration
Statement is declared effective by the SEC, the Exchange Offer
or the issuance of the Exchange Notes thereunder is interfered
with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or
court, such Exchange Registration Statement shall be deemed not
to have become effective for purposes of this Agreement. Each
Holder who participates in the Exchange Offer will be required
to represent that any Exchange Notes received by it will be
acquired in the ordinary course of its business, that at the
time of the consummation of the Exchange Offer such Holder will
have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes in
violation of the provisions of the Securities Act, and that
such Holder is not an affiliate of the Company within the
meaning of the Securities Act. Upon consummation of the
Exchange Offer in accordance with this Section 2, the Company
shall have no further obligation to register Registrable Notes (other than
Private Exchange Notes and
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other than in respect of any Exchange Notes as to which clause 2(c)(v) hereof
applies) pursuant to Section 3 hereof. No securities other than the Exchange
Notes shall be included in the Exchange Registration Statement.
(b) The Company shall include within the Prospectus
contained in the Exchange Registration Statement a section
entitled "Plan of Distribution," reasonably acceptable to the
Initial Purchasers, which shall contain a summary statement of
the positions taken or policies made by the Staff of the SEC
with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of Exchange Notes received by
such broker-dealer in the Exchange Offer (a "Participating
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Broker-Dealer"), whether such positions or policies have been
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publicly disseminated by the Staff of the SEC or such positions
or policies, in the judgment of the Initial Purchasers,
represent the prevailing views of the Staff of the SEC. Such
"Plan of Distribution" section shall also expressly permit the
use of the Prospectus by all Persons subject to the prospectus
delivery requirements of the Securities Act, including all
Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may
resell the Exchange Notes.
The Company shall use its best efforts to keep the
Exchange Registration Statement effective and to amend and
supplement the Prospectus contained therein, in order to permit
such Prospectus to be lawfully delivered by any Participating
Broker-Dealer subject to the prospectus delivery requirements
of the Securities Act for such period of time as is necessary
to comply with applicable law in connection with any resale of
the Exchange Notes; provided, however, that such period shall
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not exceed 180 days after the consummation of the Exchange
Offer (or such longer period if extended pursuant to the last
paragraph of Section 5 hereof) (the "Applicable Period").
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If, prior to consummation of the Exchange Offer, the
Initial Purchasers hold any Notes acquired by them and having
the status of an unsold allotment in the initial distribution,
the Company shall, upon the request of any of the Initial
Purchasers, simultaneously with the delivery of the Exchange
Notes in the Exchange Offer issue and deliver to the Initial
Purchasers in exchange (the "Private Exchange") for such Notes
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held by the Initial Purchasers a like principal amount of debt
securities of the Company that are identical in all material
respects to the Exchange Notes (the "Private Exchange Notes")
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(and which
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are issued pursuant to the same indenture as the
Exchange Notes) except for the placement of a restrictive
legend on such Private Exchange Notes. The Private Exchange
Notes shall bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and the Private
Exchange Notes will accrue from the last interest payment date
on which interest was paid on the Notes surrendered in exchange
therefor or, if no interest has been paid on the Notes, from
the Issue Date.
In connection with the Exchange Offer, the Company
shall:
(1) mail to each Holder a copy of the Prospectus
forming part of the Exchange Registration Statement,
together with an appropriate letter of transmittal and
related documents;
(2) utilize the services of a depositary for the
Exchange Offer with an address in the Borough of
Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any
time prior to the close of business, New York time, on the
last business day on which the Exchange Offer shall remain
open; and
(4) otherwise comply in all material respects with
all applicable laws, rules and regulations.
As soon as practicable after the close of the
Exchange Offer or the Private Exchange, as the case may be, the
Company shall:
(1) accept for exchange all Notes tendered
and not validly withdrawn pursuant to the Exchange
Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation
all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and
deliver promptly to each Holder of Notes, Exchange
Notes or Private Exchange Notes, as the case may
be, equal in principal amount to the Notes of such
Holder so accepted for exchange.
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The Exchange Notes and the Private Exchange Notes may
be issued under (i) the Indenture or (ii) an indenture
identical in all material respects to the Indenture, which in
either event shall provide that (1) the Exchange Notes shall
not be subject to the transfer restrictions set forth in the
Indenture and (2) the Private Exchange Notes shall be subject
to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange
Notes, the Private Exchange Notes and the Notes shall vote and
consent together on all matters as one class and that none of
the Exchange Notes, the Private Exchange Notes or the Notes
will have the right to vote or consent as a separate class on
any matter.
(c) If, (i) because of any change in law or in
currently prevailing interpretations of the Staff of the SEC,
the Company is not permitted to effect an Exchange Offer,
(ii) the Exchange Offer is not consummated within 270 days of
the Issue Date, (iii) any holder of Private Exchange Notes so
requests at any time after the consummation of the Private
Exchange, (iv) the Holders of not less than a majority in
aggregate principal amount of the Registrable Notes reasonably
determine that the interests of the Holders would be materially
adversely affected by consummation of the Exchange Offer or
(v) in the case of any Holder that participates in the Exchange
Offer, such Holder does not receive Exchange Notes on the date
of the exchange that may be sold without restriction under
federal securities laws (other than due solely to the status of
such Holder as an affiliate of the Company within the meaning
of the Securities Act), then the Company shall promptly deliver
to the Holders and the Trustee written notice thereof (the
"Shelf Notice") to the Trustee and in the case of clauses (i),
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(ii) and (iv), all Holders, in the case of clause (iii), the
Holders of the Private Exchange Notes and in the case of
clause (v), the affected Holder, and shall file a Shelf
Registration pursuant to Section 3 hereof.
3. Shelf Registration
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If a Shelf Notice is delivered as contemplated by
Section 2(c) hereof, then:
(a) Shelf Registration. The Company shall as
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promptly as reasonably practicable file with the SEC a
Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the
Registrable Notes (the "Shelf Registration"). If the Company
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shall not
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have yet filed an Exchange Registration Statement,
the Company shall use its best efforts to file with the SEC the
Shelf Registration on or prior to the Filing Date. The Shelf
Registration shall be on Form S-1 or another appropriate form
permitting registration of such Registrable Notes for resale by
Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The
Company shall not permit any securities other than the
Registrable Notes to be included in the Shelf Registration.
The Company shall use its best efforts to cause the
Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date and to
keep the Shelf Registration continuously effective under the
Securities Act until the date which is three years from the
Issue Date, subject to extension pursuant to the last paragraph
of Section 5 hereof (the "Effectiveness Period"), or such
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shorter period ending when all Registrable Notes covered by the
Shelf Registration have been sold in the manner set forth and
as contemplated in the Shelf Registration.
(b) Withdrawal of Stop Orders. If the Shelf
-------------------------
Registration ceases to be effective for any reason at any time
during the Effectiveness Period (other than because of the sale
of all of the securities registered thereunder), the Company
shall use its best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Company shall
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promptly supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable
to the registration form used for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by
the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or by
any underwriter of such Registrable Notes.
4. Additional Interest
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(a) The Company and the Initial Purchasers agree
that the Holders of Registrable Notes will suffer damages if
the Company fails to fulfill its obligations under Section 2 or
Section 3 hereof and that it would not be feasible to ascertain
the extent of such damages with precision. Accordingly, the
Company agrees to pay, as liquidated damages, additional
interest on the Notes ("Additional Interest") under the
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circumstances and to the extent set forth below:
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(i) if neither the Exchange Registration
Statement nor the Shelf Registration has been
filed on or prior to the Filing Date, then,
commencing on the 151st day after the Issue Date,
Additional Interest shall accrue on the Notes over
and above the stated interest at a rate of 0.50%
per annum for the first 90 days immediately
following the Filing Date, such Additional
Interest rate increasing by an additional 0.50%
per annum at the beginning of each subsequent 90-
day period;
(ii) if neither the Exchange Registration
Statement nor the Shelf Registration is declared
effective by the SEC on or prior to the
Effectiveness Date, then, commencing on the 226th
day after the Issue Date, Additional Interest
shall accrue on the Notes included or which should
have been included in such Registration Statement
over and above the stated interest at a rate of
0.50% per annum for the first 90 days immediately
following the Effectiveness Date, such Additional
Interest rate increasing by an additional 0.50%
per annum at the beginning of each subsequent 90-
day period; and
(iii) if (A) the Company has not exchanged
Exchange Notes for all Notes validly tendered in
accordance with the terms of the Exchange Offer on
or prior to the 270th day after the Issue Date or
(B) the Exchange Registration Statement ceases to
be effective at any time prior to the time that
the Exchange Offer is consummated or (C) if
applicable, the Shelf Registration has been
declared effective and such Shelf Registration
ceases to be effective at any time during the
Effectiveness Period, then Additional Interest
shall accrue (over and above any interest
otherwise payable on such Notes) at a rate of
0.50% per annum on (x) the 271st day after the
Issue Date with respect to the Notes validly
tendered and not exchanged by the Company, in the
case of (A) above, or (y) the day the Exchange
Registration Statement ceases to be effective in
the case of (B) above, or (z) the day such Shelf
Registration ceases to be effective in the case of
(C) above, such Additional Interest rate
increasing by an additional 0.50% per annum at the
beginning of
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each such subsequent 90-day period
(it being understood and agreed that,
notwithstanding any provision to the contrary, so
long as any Note which is the subject of a Shelf
Notice is then covered by an effective Shelf
Registration Statement, no Additional Interest
shall accrue on such Note);
provided, however, that the Additional Interest rate on any
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affected Note may not exceed at any one time in the aggregate
1.0% per annum; and provided, further, that (1) upon the filing
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of the Exchange Registration Statement or a Shelf Registration
(in the case of clause (i) of this Section 4(a)), (2) upon the
effectiveness of the Exchange Registration Statement or the
Shelf Registration (in the case of clause (ii) of this
Section 4(a)), or (3) upon the exchange of Exchange Notes for
all Notes tendered and not validly withdrawn (in the case of
clause (iii)(A) of this Section 4(a)), or upon the
effectiveness of the Exchange Registration Statement which had
ceased to remain effective (in the case of (iii)(B) of this
Section 4(a)), or upon the effectiveness of the Shelf
Registration which had ceased to remain effective (in the case
of (iii)(C) of this Section 4(a)), Additional Interest on the
affected Notes as a result of such clause (or the relevant
subclause thereof), as the case may be, shall cease to accrue.
(b) The Company shall notify the Trustee within one
business day after each and every date on which an event occurs
in respect of which Additional Interest is required to be paid
(an "Event Date"). Any amounts of Additional Interest due
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pursuant to clauses (a)(i), (a)(ii) or (a)(iii) of this
Section 4 will be payable to the Holders of affected Notes in
cash semi-annually on each May 1 and November 1 (to the holders
of record on the April 15 and October 15 immediately preceding
such dates), commencing with the first such date occurring
after any such Additional Interest commences to accrue. The
amount of Additional Interest will be determined by multiplying
the applicable Additional Interest rate by the principal amount
of the affected Registrable Notes of such Holders, multiplied
by a fraction, the numerator of which is the number of days
such Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve
30-day months and, in the case of a partial month, the actual
number of days elapsed), and the denominator of which is 360.
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5. Registration Procedures
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In connection with the filing of any Registration
Statement pursuant to Sections 2 or 3 hereof, the Company shall
effect such registration(s) to permit the sale of the
securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto
and in connection with any Registration Statement filed by the
Company hereunder, the Company shall:
(a) Prepare and file with the SEC prior to the
Filing Date a Registration Statement or Registration Statements
as prescribed by Sections 2 or 3 hereof, and use its best
efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided,
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however, that, if (1) such filing is pursuant to Section 3
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hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, before filing any Registration
Statement or Prospectus or any amendments or supplements
thereto, the Company shall, if requested, furnish to and afford
the Holders of the Registrable Notes covered by such
Registration Statement or each such Participating Broker-
Dealer, as the case may be, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies
of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto)
proposed to be filed (in each case at least five business days
prior to such filing). The Company shall not file any
Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such
document, if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case
may be, their counsel, or the managing underwriters, if any,
shall reasonably object.
(b) Prepare and file with the SEC such amendments
and post-effective amendments to each Shelf Registration or
Exchange Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously
effective for the Effectiveness Period or the Applicable Period
or until consummation of the Exchange Offer, as the case may
be; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so
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supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended
or in such Prospectus as so supplemented and with respect to
the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus; the
Company shall be deemed not to have used its best efforts to
keep a Registration Statement effective during the Applicable
Period if it voluntarily takes any action that would result in
selling Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not
being able to sell such Registrable Notes or such Exchange
Notes during that period unless such action is required by
applicable law or unless the Company complies with this
Agreement, including without limitation, the provisions of
paragraph 5(k) hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, notify the selling Holders of
Registrable Notes, or each such Participating Broker-Dealer, as
the case may be, their counsel and the managing underwriters,
if any, promptly (but in any event within two business days),
and confirm such notice in writing, (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective
under the Securities Act (including in such notice a written
statement that any Holder may, upon request, obtain, at the
sole expense of the Company, one conformed copy of such
Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of
the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus
or the initiation of any proceedings for that purpose, (iii) if
at any time when a prospectus is required by the Securities Act
to be delivered in connection with sales of the Registrable
Notes or resales of Exchange Notes by Participating Broker-
Dealers upon written notice by any such Participting
Broker-Dealer of a resale the representations and warranties of
the Company
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contained in any agreement (including any underwriting agreement), contemplated
by Section 5(n) hereof cease to be true and correct, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating Broker-
Dealer for offer or sale in any jurisdiction, or the initiation or threatening
of any proceeding for such purpose, (v) of the happening of any event, the
existence of any condition or any information becoming known that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will 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 that in the case of the Prospectus, it will 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, in light of
the circumstances under which they were made, not misleading, and (vi) of the
determination by the Company that a post-effective amendment to a Registration
Statement would be appropriate.
(d) Use its best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange
Notes for sale in any jurisdiction, and, if any such order is
issued, to use its best efforts to obtain the withdrawal of any
such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to
Section 3 and if requested by the managing underwriter or
underwriters (if any), or the Holders of a majority in
aggregate principal amount of the Registrable Notes being sold
in connection with an underwritten offering, (i) promptly
incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or
underwriters (if any), such Holders, or counsel for any of them
reasonably request to be included therein, (ii) make all
required filings of such prospectus supplement or such post-
effective amendment as soon as practicable after the Company
has received
-15-
notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment, and
(iii) supplement or make amendments to such Registration
Statement.
(f) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, furnish to each selling Holder of
Registrable Notes and to each such Participating Broker-Dealer
who so requests and to counsel and each managing underwriter,
if any, at the sole expense of the Company, one conformed copy
of the Registration Statement or Registration Statements and
each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference
and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, deliver to each selling Holder of
Registrable Notes, or each such Participating Broker-Dealer, as
the case may be, their respective counsel, and the
underwriters, if any, at the sole expense of the Company, as
many copies of the Prospectus or Prospectuses (including each
form of preliminary prospectus) and each amendment or
supplement thereto and any documents incorporated by reference
therein as such Persons may reasonably request; and, subject to
the last paragraph of this Section 5, the Company hereby
consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as
the case may be, and the underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of
the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable
Notes or any delivery of a Prospectus contained in the Exchange
Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, use
its best efforts to register or qualify such Registrable Notes
-16-
(and to cooperate with selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the
managing underwriter or underwriters, if any, and their
respective counsel in connection with the registration or
qualification (or exemption from such registration or
qualification) of such Registrable Notes) for offer and sale
under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters
reasonably request in writing; provided, however, that where
-----------------
Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an
underwritten offering, the Company agrees to cause its counsel
to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section
5(h); keep each such registration or qualification (or
exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do
any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of
the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration
Statement; provided, however, that the Company shall not be
-----------------
required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in
any such jurisdiction where it is not then so subject or (C)
subject itself to taxation in excess of a nominal dollar amount
in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of
Registrable Notes and the managing underwriter or underwriters,
if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall
be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such
denominations and registered in such names as the managing
underwriter or underwriters, if any, or Holders may reasonably
request.
(j) Use its best efforts to cause the Registrable
Notes 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 Holders thereof
or the underwriter or underwriters, if any, to dispose of such
Registrable Notes, except as may be required solely as a
consequence of the nature of a selling Holder's business, in
which case the
-17-
Company will cooperate in all reasonable
respects with the filing of such Registration Statement and the
granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as
promptly as practicable prepare and (subject to Section 5(a)
hereof) file with the SEC, at the sole expense of the Company,
a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Notes
being sold thereunder or to the purchasers of the Exchange
Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not
contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(l) Use its best efforts to cause the Registrable
Notes covered by a Registration Statement or the Exchange
Notes, as the case may be, to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority
in aggregate principal amount of Registrable Notes covered by
such Registration Statement or the Exchange Notes, as the case
may be, or the managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first
Registration Statement relating to the Registrable Notes,
(i) provide the Trustee with certificates for the Registrable
Notes or Exchange Notes, as the case may be, in a form eligible
for deposit with The Depository Trust Company and (ii) provide
a CUSIP number for the Registrable Notes or Exchange Notes, as
the case may be.
(n) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into
an underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Notes and take all
such other actions as are reasonably requested by the managing
-18-
underwriter or underwriters in order to facilitate the
registration or the disposition of such Registrable Notes and,
in such connection, (i) make such representations and
warranties to, and covenants with, the underwriters with
respect to the business of the Company and its subsidiaries and
the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein,
in each case, as are customarily made by issuers to
underwriters in underwritten offerings of debt securities
similar to the Notes, and confirm the same in writing if and
when requested; (ii) obtain the written opinion of counsel to
the Company and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter
or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in
underwritten offerings of debt similar to the Notes and such
other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) obtain "cold comfort"
letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants
of the Company (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 and financial data are, or are required to be,
included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters
to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection
with underwritten offerings of debt similar to the Notes and
such other matters as reasonably requested by the managing
underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority
in aggregate principal amount of Registrable Notes covered by
such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section. The above shall be done
at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes
-19-
during the Applicable Period, make available for inspection by
any selling Holder of such Registrable Notes being sold, or
each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or
other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally
----------
kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the
Company and its subsidiaries (collectively, the "Records") as
shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the
officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by
any such Inspector in connection with such Registration
Statement. Records which the Company determines, in good
faith, to be confidential and any Records which it notifies the
Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in
such Registration Statement, (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction, (iii) disclosure of such information
is, in the opinion of counsel for any Inspector, necessary or
advisable in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon,
relating to, or involving this Agreement, or any transactions
contemplated hereby or arising hereunder, or (iv) the
information in such Records has been made generally available
to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be
required to agree that information obtained by it as a result
of such inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions in the
securities of the Company unless and until such information is
generally available to the public. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer
will be required to further agree that it will, upon learning
that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow
the Company to undertake appropriate action to prevent
disclosure of the Records deemed confidential at the Company's
sole expense.
(p) Provide an indenture trustee for the Registrable
Notes or the Exchange Notes, as the case may be, and cause the
-20-
Indenture or the trust indenture provided for in Section 2(a)
hereof, as the case may be, to be qualified under the TIA not
later than the effective date of the Exchange Offer or the
first Registration Statement relating to the Registrable Notes;
and in connection therewith, cooperate with the trustee under
any such indenture and the Holders of the Registrable Notes, to
effect such changes to such 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 such
trustee to execute, all documents as may be required to effect
such changes, and all other forms and documents required to be
filed with the SEC to enable such indenture to be so qualified
in a timely manner.
(q) Comply with all applicable rules and regulations
of the SEC and make generally available to its securityholders
earnings statements satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day
of the first fiscal quarter of the Company after the effective
date of a Registration Statement, which statements shall cover
said 12-month periods.
(r) If an Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Registrable Notes by
Holders to the Company (or to such other Person as directed by
the Company) in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be, the Company shall mark, or
cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may
be; in no event shall such Registrable Notes be marked as paid
or otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes
covered by any Registration Statement and each underwriter, if
any, participating in the disposition of such Registrable Notes
and their respective counsel in connection with any filings
required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
----
-21-
(t) Use its best efforts to take all other steps
necessary or advisable to effect the registration of the
Registrable Notes covered by a Registration Statement
contemplated hereby.
The Company may require each seller of Registrable
Notes as to which any Registration is being effected to furnish
to the Company such information regarding such seller and the
distribution of such Registrable Notes as the Company may, from
time to time, reasonably request. The Company may exclude from
such registration the Registrable Notes of any seller who
unreasonably fails to furnish such information within a
reasonable time after receiving such request. Each seller as
to which any Shelf Registration is being effected agrees to
furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished
to the Company by such seller not materially misleading.
Each Holder of Registrable Notes and each
Participating Broker-Dealer agrees by acquisition of such
Registrable Notes or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, that, upon
actual receipt of any notice from the Company of the happening
of any event of the kind described in Section 5(c)(ii),
5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will
forthwith discontinue disposition of such Registrable Notes
covered by such Registration Statement or Prospectus or
Exchange Notes to be sold by such Holder or Participating
Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or
supplements thereto. In the event the Company shall give any
such notice, each of the Effectiveness Period and the
Applicable Period shall be extended by the number of days
during such periods from and including the date of the giving
of such notice to and including the date when each seller of
Registrable Notes covered by such Registration Statement or
Exchange Notes to be sold by such Participating Broker-Dealer,
as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (y) the Advice.
-22-
6. Registration Expenses
(a) All fees and expenses incident to the
performance of or compliance with this Agreement by the Company
shall be borne by the Company whether or not the Exchange Offer
or a Shelf Registration is filed or becomes effective,
including, without limitation, (i) all registration and filing
fees (including, without limitation, (A) fees with respect to
filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance
with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable
Notes or Exchange Notes and determination of the eligibility of
the Registrable Notes or Exchange Notes for investment under
the laws of such jurisdictions (x) where the holders of
Registrable Notes are located, in the case of the Exchange
Notes, or (y) as provided in Section 5(h) hereof, in the case
of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)),
(ii) printing expenses, including, without limitation, expenses
of printing certificates for Registrable Notes or Exchange
Notes in a form eligible for deposit with The Depository Trust
Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate
principal amount of the Registrable Notes included in any
Registration Statement or sold by any Participating Broker-
Dealer, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for
the Company and fees and disbursements of special counsel for
the sellers of Registrable Notes (subject to the provisions of
Section 6(b) hereof), (v) fees and disbursements of all
independent certified public accountants referred to in Section
5(n)(iii) hereof (including, without limitation, the expenses
of any special audit and "cold comfort" letters required by or
incident to such performance), (vi) rating agency fees, if any,
and any fees associated with making the Registrable Notes or
Exchange Notes eligible for trading through The Depository
Trust Company, (vii) Securities Act liability insurance, if the
Company desires such insurance, (viii) fees and expenses of all
other Persons retained by the Company, (ix) internal expenses
of the Company (including, without limitation, all salaries and
expenses of officers and employees of the Company performing
legal or accounting duties), (x) the expense of any annual
audit, (xi) the fees and expenses incurred in connection with
the listing of the securities to be registered on any
securities exchange, if
-23-
applicable, and (xii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement.
(b) The Company shall (i) reimburse the Holders of
the Registrable Notes being registered in a Shelf Registration
for the reasonable fees and disbursements, not to exceed
$25,000, of not more than one counsel (in addition to
appropriate local counsel) chosen by the Holders of a majority
in aggregate principal amount of the Registrable Notes to be
included in such Registration Statement and (ii) reimburse out-
of-pocket expenses (other than legal expenses) of Holders of
Registrable Notes incurred in connection with the registration
and sale of the Registrable Notes pursuant to a Shelf
Registration or in connection with the exchange of Registrable
Notes pursuant to the Exchange Offer.
7. Indemnification
---------------
(a) The Company agrees to indemnify and hold
harmless each Holder of Registrable Notes offered pursuant to a
Shelf Registration Statement and each Participating Broker-
Dealer selling Exchange Notes during the Applicable Period, the
affiliates, directors, officers, agents, representatives and
employees of each such Person or its affiliates, and each other
Person, if any, who controls any such Person or its affiliates
within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act (each, a "Participant"), from
-----------
and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and
other expenses actually incurred in connection with any suit,
action or proceeding or any claim asserted) caused by, arising
out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration
Statement pursuant to which the offering of such Registrable
Notes or Exchange Notes, as the case may be, is registered (or
any amendment thereto) or related Prospectus (or any amendments
or supplements thereto) or any related preliminary prospectus,
or caused by, arising out of or based upon any omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading; provided, however, that the Company will not be
-------- -------
required to indemnify a Participant if (i) such losses, claims,
damages or liabilities are caused by any untrue statement or
-24-
omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to
any Participant furnished to the Company in writing by or on
behalf of such Participant expressly for use therein or (ii) if
such Participant sold to the person asserting the claim the
Registrable Notes or Exchange Notes which are the subject of
such claim and such untrue statement or omission or alleged
untrue statement or omission was contained or made in any
preliminary prospectus and corrected in the Prospectus or any
amendment or supplement thereto and the Prospectus does not
contain any other untrue statement or omission or alleged
untrue statement or omission of a material fact that was the
subject matter of the related proceeding and it is established
by the Company in the related proceeding that such Participant
failed to deliver or provide a copy of the Prospectus (as
amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange
Notes sold to such Person if required by applicable law, unless
such failure to deliver or provide a copy of the Prospectus (as
amended or supplemented) was a result of noncompliance by the
Company with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors and officers and each Person who controls the Company
within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Participant, but
only (i) with reference to information relating to such
Participant furnished to the Company in writing by or on behalf
of such Participant expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto,
or any preliminary prospectus or (ii) with respect to any
untrue statement or representation made by such Participant in
writing to the Company. The liability of any Participant under
this paragraph shall in no event exceed the proceeds received
by such Participant from sales of Registrable Notes or Exchange
Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand
shall be brought or asserted against any Person in respect of
which indemnity may be sought pursuant to either of the two
preceding paragraphs, such Person (the "Indemnified Person")
------------------
shall promptly notify the Person against whom such indemnity
may be sought (the "Indemnifying Person") in writing, and the
-------------------
Indemnifying Person, upon request of the Indemnified Person,
-25-
shall retain counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding
and shall pay the reasonable fees and expenses actually
incurred by such counsel related to such proceeding; provided,
--------
however, that the failure to so notify the Indemnifying Person
- -------
shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent
that such failure directly results in the loss or compromise of
any material rights or defenses by the Indemnifying Person and
the Indemnifying Person was not otherwise aware of such action
or claim). In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person shall have failed within
a reasonable period of time to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named
parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that,
unless there exists a conflict among Indemnified Persons, the
Indemnifying Person shall not, in connection with any one such
proceeding or separate but substantially similar related
proceeding in the same jurisdiction arising out of the same
general allegations, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel)
for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed promptly as they are incurred.
Any such separate firm for the Participants and such control
Persons of Participants shall be designated in writing by
Participants who sold a majority in interest of Registrable
Notes and Exchange Notes sold by all such Participants and any
such separate firm for the Company, its directors, its officers
and such control Persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without
its prior written consent, but if settled with such consent or
if there be a final non-appealable judgment for the plaintiff
for which the Indemnified Person is entitled to indemnification
pursuant to this Agreement, the Indemnifying Person agrees to
indemnify and hold harmless each Indemnified Person from and
against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any
time an Indemnified Person shall
-26-
have requested an Indemnifying Person to reimburse the Indemnified
Person for reasonable fees and expenses actually incurred by counsel
as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement;
provided, however, that the Indemnifying Person shall not be liable
- -------- -------
for any settlement effected without its consent pursuant to this
sentence if the Indemnifying Person is contesting, in good faith,
the request for reimbursement. No Indemnifying Person shall, without
the prior written consent of the Indemnified Person, effect any
settlement or compromise of any pending or threatened proceeding
in respect of which any Indemnified Person is or could have been a
party, and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an
unconditional written release of such Indemnified Person, in form
and substance reasonably satisfactory to such Indemnified Person,
from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to an
admission of fault, culpability or failure to act by or on behalf
of any Indemnified Person.
(d) If the indemnification provided for in the first
and second paragraphs of this Section 7 is for any reason
unavailable to, or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person
under such paragraphs, in lieu of indemnifying such Indemnified
Person thereunder and in order to provide for just and
equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is
appropriate to reflect (i) the relative benefits received by
the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the offering of
the Notes or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the
Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with
the statements or omissions or alleged statements or omissions
that resulted in such losses, claims, damages or liabilities
(or actions in
-27-
respect thereof). The relative fault of the parties 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 such
Participant or such other Indemnified Person, as the case may be, on the other,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Participants
--- ----
were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the
equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other
expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, in no
event shall a Participant be required to contribute any amount
in excess of the amount by which proceeds received by such
Participant from sales of Registrable Notes or Exchange Notes,
as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid 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
Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements
contained in this Section 7 will be in addition to any
liability which the Indemnifying Persons may otherwise have to
the Indemnified Persons referred to above.
8. Rule 144 and 144A
-----------------
The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC
thereunder in a timely manner in accordance with the
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requirements of the Securities Act and the Exchange Act and, if
at any time the Company is not required to file such reports,
it will, upon the request of any Holder of Registrable Notes,
make publicly available annual reports and such information,
documents and other reports of the type specified in Sections
13 and 15(d) of the Exchange Act. The Company further
covenants for so long as any Registrable Notes remain
outstanding, to make available to any Holder or beneficial
owner of Registrable Notes in connection with any sale thereof
and any prospective purchaser of such Registrable Notes from
such Holder or beneficial owner the information required by
Rule 144A(d)(4) under the Securities Act in order to permit
resales of such Registrable Notes pursuant to Rule 144A.
9. Underwritten Registrations
--------------------------
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Holders
of a majority in aggregate principal amount of such Registrable
Notes included in such offering and reasonably acceptable to
the Company.
No Holder of Registrable Notes may participate in any
underwritten registation hereunder unless such Holder
(a) agrees to sell such Holder's Registrable Notes on the basis
provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting
arrangements.
10. Miscellaneous
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(a) No Inconsistent Agreements. The Company has not
--------------------------
entered, as of the date hereof, and the Company will not, after
the date of this Agreement, enter into any agreement with
respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof.
The Company has not entered and the Company will not enter into
any agreement with respect to any of its securities which will
grant to any Person piggy-back registration rights with respect
to a Registration Statement.
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(b) Adjustments Affecting Registrable Notes. The
---------------------------------------
Company will not, directly or indirectly, take any action with
respect to the Registrable Notes as a class that would
adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this
----------------------
Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent
of the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes.
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
Notes whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders
of Registrable Notes may be given by Holders of at least a
majority in aggregate principal amount of the Registrable Notes
being sold by such Holders pursuant to such Registration
Statement; provided, however, that the provisions of this
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sentence may not be amended, modified or supplemented except in
accordance with the provisions of the immediately preceding
sentence.
(d) Notices. All notices and other communications
-------
(including without limitation any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing by hand-
delivery, registered first-class mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Notes
or any Participating Broker-Dealer, at the most
current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a
copy in like manner to the Initial Purchasers as
follows:
BT Securities Corporation
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Facsimile No: (212) 250-7200
Attention: Corporate Finance
Department
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with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Facsimile No: (212) 269-5420
Attention: William M. Hartnett, Esq.
2. if to the Initial Purchasers, at the
address specified in Section 10(d)(1);
3. if to the Company, as follows:
Dade International Inc.
1717 Deerfield Road
Deerfield, IL 60015-0778
Facsimile No: (847) 267-5396
Attention: Chief Financial Officer
with copies to:
Kirkland & Ellis
153 E. 53rd Street
New York, New York 10022
Facsimile No: (212) 446-4900
Attention: Lance Balk, Esq.
All such notices and communications shall be deemed
to have been duly given: when delivered by hand, if personally
delivered; five business days after being deposited in the
mail, postage prepaid, if mailed; one business day after being
timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
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 and in the manner
specified in such Indenture.
(e) Successors and Assigns. This Agreement shall
----------------------
inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto; provided, however, that
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this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent
such successor or assign holds Registrable Notes.
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(f) 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.
(g) Headings. The headings in this Agreement are
--------
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
-------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT
TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(i) Severability. If any term, provision, covenant
------------
or restriction of this Agreement is held by a court of
competent jurisdiction 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, and the parties hereto shall use their 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 is hereby
stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or
unenforceable.
(j) Notes Held by the Company or its Affiliates.
-------------------------------------------
Whenever the consent or approval of Holders of a specified
percentage of Registrable Notes is required hereunder,
Registrable Notes held by the Company or its affiliates (as
such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of
-------------------------
Registrable Notes and Participating Broker-Dealers are intended
third party beneficiaries of this Agreement and this Agreement
may be enforced by such Persons.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
DADE INTERNATIONAL INC.
/s/ John Connaughton
By:________________________________
Name: John Connaughton
Title: Vice President
BT SECURITIES CORPORATION
CS FIRST BOSTON CORPORATION
MORGAN STANLEY & CO. INCORPORATED
By: BT Securities Corporation
/s/ Julie Persily
By:________________________________
Name: Julie Persily
Title: Vice President