EXHIBIT 4.3
EXECUTION VERSION
INVACARE CORPORATION
4.125% CONVERTIBLE SENIOR SUBORDINATED DEBENTURES DUE 2027
RESALE REGISTRATION RIGHTS AGREEMENT
DATED FEBRUARY 12, 2007
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of February 12, 2007, among
Invacare Corporation, an Ohio corporation (together with any successor entity,
herein referred to as the "COMPANY"), the subsidiaries of the Company listed on
the signature page hereto (collectively, the "GUARANTORS"), and Banc of America
Securities LLC, KeyBanc Capital Markets, a division of McDonald Investments
Inc., BMO Capital Markets Corp. and SunTrust Capital Markets, Inc. as
representatives (the "REPRESENTATIVES") of the several initial purchasers (the
"INITIAL PURCHASERS") under the Purchase Agreement (as defined below).
Pursuant to the Purchase Agreement, dated as of February 5, 2007 between
the Company, the Guarantors and the Representatives (the "PURCHASE AGREEMENT"),
relating to the initial placement (the "INITIAL PLACEMENT") of the Debentures
(as defined below), the Initial Purchasers have agreed to purchase from the
Company $125 million ($135 million if the Initial Purchasers exercise their
option in full) in aggregate principal amount of 4.125% Convertible Senior
Subordinated Debentures due 2027 (the "DEBENTURES") fully and unconditionally
guaranteed by the Guarantors (the "GUARANTEES") pursuant to the Purchase
Agreement. The Debentures will be convertible, subject to the terms thereof,
into fully paid, nonassessable common shares, without par value, of the Company
(the "COMMON STOCK"). To induce the Initial Purchasers to purchase the
Debentures, the Company has agreed to provide the registration rights set forth
in this Agreement pursuant to Section 5(h) of the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized terms shall have the following
meanings:
"AFFILIATE" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGREEMENT": This Resale Registration Rights Agreement.
"AMENDMENT EFFECTIVENESS DEADLINE DATE": has the meaning set forth in
Section 2(f)(i) hereof.
"BUSINESS DAY": The definition of "Business Day" in the Indenture.
"CLOSING DATE": The date of the first issuance of the Debentures.
"COMMISSION": Securities and Exchange Commission.
"COMMON STOCK": As defined in the preamble hereto.
"COMPANY": As defined in the preamble hereto.
"DEBENTURES": As defined in the preamble hereto.
"EFFECTIVENESS DATE": As defined in Section 2(a)(ii) hereof.
"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof.
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"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii) hereof.
"EXCHANGE ACT": Securities Exchange Act of 1934, as amended.
"FREE WRITING PROSPECTUS": A free writing prospectus, as defined in Rule
405 under the Securities Act.
"GUARANTEES": As defined in the preamble hereto.
"GUARANTORS": As defined in the preamble hereto.
"HOLDER": A Person who owns, beneficially or otherwise, Transfer Restricted
Securities.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of February 12, 2007 between the
Company, the Guarantors and Wells Fargo Bank, N.A., as trustee (the "TRUSTEE"),
pursuant to which the Debentures are to be issued, as such Indenture is amended,
modified or supplemented from time to time in accordance with the terms thereof.
"INITIAL PLACEMENT": As defined in the preamble hereto.
"INITIAL PURCHASERS": As defined in the preamble hereto.
"ISSUER FREE WRITING PROSPECTUS": An issuer free writing prospectus, as
defined in Rule 433 under the Securities Act.
"LIQUIDATED DAMAGES": As defined in Section 3(a) hereof.
"LIQUIDATED DAMAGES PAYMENT DATE": Each February 1 and August 1.
"LOSSES": As defined in Section 6(a) hereof.
"MAJORITY OF HOLDERS": Holders holding over 50% of the aggregate principal
amount of Debentures outstanding; provided that, for the purpose of this
Agreement, a holder of shares of Common Stock which constitute Transfer
Restricted Securities shall be deemed to hold an aggregate principal amount of
the Debentures (in addition to the principal amount of the Debentures held by
such holder) equal to the quotient of (x) the number of such shares of Common
Stock held by such holder and (y) the conversion rate in effect at the time of
their issuance upon conversion of the Debentures as determined in accordance
with the Indenture.
"MANAGING UNDERWRITER": The investment banker or investment bankers and
manager or managers that administer an underwritten offering, if any, conducted
pursuant to Section 8 hereof.
"NASD": National Association of Securities Dealers, Inc.
"NOTICE AND QUESTIONNAIRE" means a written notice executed by the
respective Holder and delivered to the Company containing substantially the
information called for by the Selling Securityholder Notice and Questionnaire
attached as Appendix A to the Offering Memorandum of the Company relating to the
Debentures.
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"NOTICE HOLDER": On any date, any Holder of Transfer Restricted Securities
that has delivered a Notice and Questionnaire to the Company on or prior to such
date.
"PERMITTED FREE WRITING PROSPECTUS": As defined in Section 9(a) hereof.
"PERSON": An individual, partnership, corporation, company, unincorporated
organization, trust, joint venture or a government or agency or political
subdivision thereof.
"PURCHASE AGREEMENT": As defined in the preamble hereto.
"PROSPECTUS": The prospectus included in a Shelf Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
"RECORD HOLDER": With respect to any Liquidated Damages Payment Date, each
Person who is a registered holder of the Debentures on the 15th day preceding
the relevant Liquidated Damages Payment Date.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
"REPRESENTATIVES": As defined in the preamble hereto.
"SECURITIES ACT": Securities Act of 1933, as amended.
"SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i) hereof.
"SUSPENSION NOTICE": As defined in Section 4(c) hereof.
"SUSPENSION PERIOD": As defined in Section 4(b)(ii) hereof.
"TIA": Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified under the TIA.
"TRANSFER RESTRICTED SECURITIES": Each Debenture and each share of Common
Stock issued upon conversion of Debentures until the earliest of:
(i) the date on which such Debenture or such share of Common
Stock issued upon conversion has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf
Registration Statement;
(ii) the date on which such Debenture or such share of Common
Stock issued upon conversion is transferred in compliance with Rule
144 (or any other similar provision then in force) under the
Securities Act or eligible for transfer pursuant to paragraph (k) of
Rule 144 under the Securities Act (or any other similar provision then
in force);
(iii) the date on which such Debenture or such share of Common
Stock issued upon conversion ceases to be outstanding (whether as a
result of redemption, repurchase and cancellation, conversion or
otherwise); or
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(iv) the date on which such Debenture or such share of Common
Stock has otherwise been transferred and a new Debenture or share of
Common Stock not subject to transfer restrictions under the Securities
Act has been delivered by or on behalf of the Company in accordance
with Section 2.06 of the Indenture.
"UNDERWRITER": Any underwriter of Transfer Restricted Securities in
connection with an offering thereof under the Shelf Registration Statement.
"UNDERWRITTEN REGISTRATION": A registration in which Transfer Restricted
Securities of the Company are sold to an underwriter for reoffering to the
public.
Unless the context otherwise requires, the singular includes the plural,
and words in the plural include the singular.
2. Shelf Registration.
(a) The Company shall:
(i) use its commercially reasonable efforts (but in no event more
than 90 days after the Closing Date) (the "SHELF FILING DEADLINE"), to
cause to be filed, or otherwise designate an existing filing with the
Commission as, a registration statement pursuant to Rule 415 under the
Securities Act or any similar rule that may be adopted by the
Commission (the "SHELF REGISTRATION STATEMENT"), which Shelf
Registration Statement shall provide for the registration and resales,
on a continuous or delayed basis, of all Transfer Restricted
Securities subject to the terms and conditions hereof;
(ii) use its commercially reasonable efforts to cause the Shelf
Registration Statement to become effective under the Securities Act,
or otherwise make available for use by Holders a previously filed
effective Shelf Registration Statement, not later than 210 days after
the date hereof (the "EFFECTIVENESS TARGET DATE", and the date of such
effectiveness or availability, the "EFFECTIVENESS DATE"); and
(iii) use its commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the Securities Act and by the provisions of
Section 4(b) hereof to the extent necessary to ensure that (A) it is
available for resales by the Holders of Transfer Restricted Securities
entitled, subject to the terms and conditions hereof, to the benefit
of this Agreement and (B) conforms with the requirements of this
Agreement and the Securities Act and the rules and regulations of the
Commission promulgated thereunder as announced from time to time, for
a period (the "EFFECTIVENESS PERIOD") from the date the Shelf
Registration Statement becomes effective until the date that the
Debentures and the shares of Common Stock issuable upon exchange
thereof have ceased to be Transfer Restricted Securities.
The Company shall be deemed not have used its commercially reasonable
efforts to keep the Shelf Registration Statement effective during the
Effectiveness Period if it voluntarily takes any action that would result
in Holders of Transfer Restricted Securities not being able to offer and
sell such securities at any time during the Effectiveness Period, unless
such action is (x) required by applicable law or otherwise undertaken by
the Company in good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, or (y) permitted by Section 4(b)(ii)
hereof.
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(b) Not less than 30 days prior to the Effectiveness Target Date, the
Company shall mail the Notice and Questionnaire to the Holders. Each Holder
that becomes a Notice Holder (and provides such additional information as
the Company reasonably may request) no later than 20 days following such
Holder's receipt of notice from the Company of the filing or designation of
the Shelf Registration Statement shall be named as a selling securityholder
in the initial Registration Statement made available to Holders under the
Shelf Registration Statement.
(c) If the Shelf Registration Statement ceases to be effective for any
reason at any time during the Effectiveness Period (other than because all
Transfer Restricted Securities registered thereunder shall have been resold
pursuant thereto or shall have otherwise ceased to be Transfer Restricted
Securities), the Company shall use its commercially reasonable efforts to
obtain the prompt withdrawal of any order suspending the effectiveness
thereof or file or designate a subsequent Shelf Registration Statement
covering all of the securities that as of the date of such filing or
designation are Transfer Restricted Securities. If such an subsequent Shelf
Registration Statement is filed or designated (and is not already
effective), the Company shall use its commercially reasonable efforts to
cause the subsequent Shelf Registration Statement to become effective as
promptly as is practicable after such filing or designation and to keep
such subsequent Shelf Registration Statement continuously effective until
the end of the Effectiveness Period.
(d) The Company shall supplement and amend the 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 Securities Act or as reasonably requested by
the Initial Purchasers or by the Trustee on behalf of the Holders of the
Transfer Restricted Securities covered by such Shelf Registration
Statement.
(e) The Company shall cause the Shelf Registration Statement and the
related Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement or such amendment or
supplement, and any Issuer Free Writing Prospectus, as of the date thereof,
(i) to comply in all material respects with the applicable requirements of
the Securities Act, and (ii) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein (in the case
of the Prospectus and any Issuer Free Writing Prospectus, in light of the
circumstances under which they were made) not misleading.
(f) Each Holder agrees that if such Holder wishes to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus, it will do so only in accordance with the terms and
conditions of this Agreement. Each Holder wishing to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus from and after the Effectiveness Date agrees to deliver
a Notice and Questionnaire to the Company at least 10 Business Days prior
to any intended distribution of Transfer Restricted Securities under the
Shelf Registration Statement. From and after the Effectiveness Date, the
Company shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered to it, and in any event upon the later of (x) 15
Business Days after such date (but no earlier than 15 Business Days after
effectiveness) or (y) 15 Business Days after the expiration of any
Suspension Period in effect when the Notice and Questionnaire is delivered
or put into effect within 15 Business Days of such delivery date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document
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incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named
as a selling securityholder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Transfer Restricted
Securities in accordance with applicable law and, if the Company shall
file a post-effective amendment to the Shelf Registration Statement,
use its commercially reasonable efforts to cause such post-effective
amendment to become effective under the Securities Act as promptly as
is practicable, but in any event by the date (the "AMENDMENT
EFFECTIVENESS DEADLINE DATE") that is 45 days after the date such
post-effective amendment is required by this clause to be filed;
(ii) provide such Holder a reasonable number of copies of the any
documents filed pursuant to Section 2(f)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(f)(i);
provided that if such Notice and Questionnaire is delivered during a Suspension
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Suspension Period in accordance with Section
4(b). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to 10
Business Days from the Expiration of a Suspension Period (and the Company shall
incur no obligation to pay Liquidated Damages during such extension) if such
Suspension Period shall be in effect on the Amendment Effectiveness Deadline
Date.
3. Liquidated Damages.
(a) If:
(i) the Shelf Registration Statement is not filed, or on file,
with the Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not become effective,
or a previously effective Shelf Registration Statement has not been
made available, prior to or on the Effectiveness Target Date;
(iii) the Company has failed to perform its obligations set forth
in Section 2(f) within the time periods required therein;
(iv) any post-effective amendment to a Shelf Registration filed
pursuant to Section 2(f)(i) has not become effective under the
Securities Act on or prior to the Amendment Effectiveness Deadline
Date;
(v) except as provided in Section 4(b)(ii) hereof, the Shelf
Registration Statement is filed and has become effective but, during
the Effectiveness Period, shall thereafter cease to be effective or
fail to be usable for its intended purpose for more than 10 Business
Days; or
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(vi) Suspension Periods exceed an aggregate of 30 days within any
90-day period or an aggregate of 90 days in any 360-day period;
(each such event referred to in foregoing clauses (i) through (vi), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay interest
("LIQUIDATED DAMAGES") with respect to the Transfer Restricted Securities
from and including the day following the Registration Default to but
excluding the earlier of (1) the day on which the Registration Default has
been cured and (2) the date the Shelf Registration Statement is no longer
required to be kept effective, accruing at a rate:
(A) in respect of the Debentures, to each holder of
Debentures, (x) with respect to the first 90-day period during
which a Registration Default shall have occurred and be
continuing, equal to 0.25% per annum of the aggregate principal
amount of the Debentures, and (y) with respect to the period
commencing on the 91st day following the day the Registration
Default shall have occurred and be continuing, equal to 0.50% per
annum of the aggregate principal amount of the Debentures;
provided that in no event shall Liquidated Damages accrue at a
rate per year exceeding 0.50% of the aggregate principal amount
of the Debentures; and
(B) in respect of the Debentures that are Transfer
Restricted Securities submitted for conversion into Common Stock
during the existence of a Registration Default with respect to
the Common Stock, the holder will not be entitled to receive any
Liquidated Damages with respect to such Common Stock but (x) will
be entitled to a conversion rate adjustment in accordance with
the terms of the Debentures as set forth in the Indenture and (y)
will receive from the Company on the settlement date with respect
to such conversion, accrued and unpaid Liquidated Damages
calculated in accordance with paragraph (A) to the Conversion
Date (as defined in the Indenture); and
(C) in respect of Common Stock issued upon conversion of
Debentures, each holder of such Common Stock will not be entitled
to any Liquidated Damages if the Registration Default with
respect to such Common Stock occurs after the holder has
converted the Debentures into Common Stock.
(b) All accrued Liquidated Damages shall be paid in arrears to Record
Holders by the Company on each Liquidated Damages Payment Date. Upon the
cure of all Registration Defaults relating to any particular Transfer
Restricted Security, the accrual of applicable Liquidated Damages will
cease.
All obligations of the Company set forth in this Section 3 that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such Transfer Restricted Security
shall have been satisfied in full.
The Liquidated Damages set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for each
Registration Default.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the Company
shall comply with all the provisions of Section 4(b) hereof and shall use
its commercially reasonable efforts to
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effect such registration to permit the sale of the Transfer Restricted
Securities, and pursuant thereto, shall prepare and file with the
Commission a Shelf Registration Statement as prescribed by Section 2(a)(i)
relating to the registration on any appropriate form under the Securities
Act, or otherwise make available for use by Holders a previously filed
Shelf Registration Statement.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iv)(D), use its commercially reasonable
efforts to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence of any
event that would cause the Shelf Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the Effectiveness Period, the Company
shall file promptly a post-effective amendment to the Shelf
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document, in the case of clause
(A), correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use its commercially reasonable efforts to
cause any such amendment to become effective and the Shelf
Registration Statement and the related Prospectus to become usable for
their intended purposes as soon as practicable thereafter.
(ii) Notwithstanding Section 4(b)(i) hereof, the Company may
suspend the effectiveness of the Shelf Registration Statement (each
such period, a "SUSPENSION PERIOD"):
(x) if an event occurs and is continuing as a result of
which the Shelf Registration Statement, the Prospectus, any amendment
or supplement thereto, or any document incorporated by reference
therein would, in the Company's judgment, contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and
(y) if the Company determines in good faith that the
disclosure of a material event at such time would be seriously
detrimental to the Company and its subsidiaries.
Upon the occurrence of any event described in clauses (x) and (y) of this
Section 4(b)(ii), the Company shall give notice to the Holders that the
availability of the Shelf Registration is suspended and, upon actual
receipt of any such notice, each Holder agrees not to sell any Transfer
Restricted Securities pursuant to the Shelf Registration until such
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in Section 4(b) hereof. The period during which the
availability of the Shelf Registration and any Prospectus is suspended (the
"SUSPENSION PERIOD") shall not exceed 30 days in any 90-day period,
provided that, in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which the Company determines in good faith would be
reasonably likely to impede the Company's ability to consummate such
transaction, the Company may extend a Suspension Period from 30 days to 45
days; provided, further, that Suspension Periods shall not exceed an
aggregate of 90 days in any 360-day period.
(iii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary to keep
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the Shelf Registration Statement effective during the Effectiveness
Period; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with the
applicable provisions of Rule 424 under the Securities Act in a timely
manner; and comply with the provisions of the Securities Act with
respect to the disposition of all Transfer Restricted Securities
covered by the Shelf Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth or to be set forth in
the Shelf Registration Statement or supplement to the Prospectus.
(iv) Advise the selling Holders and any Initial Purchaser that
has provided in writing to the Company a telephone or facsimile number
and address for notices, promptly and, if requested by such selling
Holders, to confirm such advice in writing (which notice pursuant to
clauses (B) through (E) below shall be accompanied by an instruction
to suspend the use of the Prospectus until the Company shall have
remedied the basis for such suspension):
(A) when the Prospectus, any Prospectus supplement, any
post-effective amendment or any Issuer Free Writing Prospectus
has been filed, and, with respect to the Shelf Registration
Statement or any post-effective amendment thereto, when the same
has become effective,
(B) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement, the Prospectus
or any Issuer Free Writing Prospectus or for additional
information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
under the Securities Act or of any notice that would prevent its
use, or of the suspension by any state securities commission of
the qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction,
(D) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that makes any statement
of a material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the statements
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading, or
(E) when any Issuer Free Writing Prospectus includes
information that may conflict with the information contained in
the Registration Statement.
(v) If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration Statement or
any notice that would prevent its use, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky
laws, the Company shall use its commercially reasonable efforts to
obtain the withdrawal or lifting of such order at the earliest
possible time, including, if necessary, by filing an amendment to the
Shelf
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Registration Statement or a new Shelf Registration Statement and using
its commercially reasonable efforts to have such amendment or new
Shelf Registration Statement declared effective, and will provide to
each Holder who is named in the Shelf Registration Statement prompt
notice of the withdrawal of any such order or of the filing or
effectiveness of any such amendment or new registration statement.
(vi) Make available at reasonable times for inspection by one or
more representatives of the selling Holders, designated in writing by
a Majority of Holders whose Transfer Restricted Securities are
included in the Shelf Registration Statement, and one counsel retained
by such selling Holders and any underwriter participating in any
disposition pursuant to the Shelf Registration Statement, all
financial and other records, pertinent corporate documents and
properties of the Company as shall be reasonably necessary to enable
them to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act, and cause the Company's officers,
directors, managers and employees to supply all information reasonably
requested by any such representative or representatives of the selling
Holders or counsel in connection therewith.
(vii) If requested by any selling Holders or the Representatives,
promptly incorporate in the Shelf Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities.
(viii) Deliver to each selling Holder, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) and
any amendment or supplement thereto, and any Issuer Free Writing
Prospectus, as such Persons reasonably may request; subject to Section
4(b)(ii) and subject to any notice by the Company in accordance with
this Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iv)(B) through (E), the Company hereby
consents to the use of the Prospectus and any amendment or supplement
thereto, and any Issuer Free Writing Prospectus, by each of the
selling Holders in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto.
(ix) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their one counsel
representing all of the selling Holders in connection with the
registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such jurisdictions in the
United States as the selling Holders may reasonably request and do any
and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration Statement;
provided, however, that the Company shall not be required (A) to
register or qualify as a foreign corporation or a dealer of securities
where it is not now so qualified or to take any action that would
subject it to the service of process in any jurisdiction where it is
not now so subject, other than service of process for suits arising
out of the Initial Placement or any offering pursuant to the Shelf
Registration Statement, or (B) to subject itself to general or
unlimited service of process or to taxation in any such jurisdiction
if they are not now so subject.
(x) Unless any Transfer Restricted Securities shall be in
book-entry form only, cooperate with the selling Holders to facilitate
the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any
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restrictive legends (unless required by applicable securities laws);
and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders may
reasonably request at least two Business Days before any sale of
Transfer Restricted Securities.
(xi) Use its commercially reasonable efforts to cause the
Transfer Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other U.S.
governmental agencies or authorities as may be reasonably necessary to
enable the seller or sellers thereof to consummate the disposition of
such Transfer Restricted Securities.
(xii) Subject to Section 4(b)(ii) hereof, if any fact or event
contemplated by Section 4(b)(iv)(B) through (D) hereof shall exist or
have occurred, use its commercially reasonable efforts to prepare a
supplement or post-effective amendment to the Shelf Registration
Statement, related Prospectus (including by means of an Issuer Free
Writing Prospectus), relevant Issuer Free Writing Prospectus or any
document incorporated therein by reference or to file any other
required document so that, as thereafter delivered to the purchasers
of Transfer Restricted Securities, none of the Registration Statement,
the Prospectus or any Issuer Free Writing Prospectus will contain an
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 the case of the Prospectus and any such Issuer Free
Writing Prospectus, in the light of the circumstances in which they
are made) not misleading.
(xiii) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf Registration
Statement and provide the Trustee under the Indenture with
certificates for the Debentures that are in a form eligible for
deposit with The Depository Trust Company.
(xiv) Reasonably cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be undertaken in
accordance with the rules and regulations of the NASD.
(xv) Otherwise use its commercially reasonable efforts to comply
in all material respects with all applicable rules and regulations of
the Commission and all reporting requirements under the rules and
regulations of the Exchange Act.
(xvi) Make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act as soon as practicable after the effective date of the
Shelf Registration Statement and in any event no later than 40 days
after the end of the 12-month period (or 60 days, if such period is a
fiscal year) beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Shelf
Registration Statement.
(xvii) Use its commercially reasonable efforts to cause the
Indenture to be qualified under the TIA not later than the effective
date of the Shelf Registration Statement required by this Agreement
(or the time when the registration as to the Debentures under the
Shelf Registration Statement is required to become effective
hereunder), and, in connection therewith, reasonably cooperate with
the Trustee and the holders of Debentures to effect such changes to
the Indenture as may be required for such
11
Indenture to be so qualified in accordance with the terms of the TIA;
and execute and use its commercially reasonable efforts to cause the
Trustee thereunder to execute all documents that may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified
in a timely manner. In the event that any such amendment or
modification referred to in this Section 4(b)(xvii) involves the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(xviii) Use its commercially reasonable efforts to cause all
Common Stock covered by the Shelf Registration Statement to be listed
or quoted, as the case may be, on each securities exchange or
automated quotation system on which Common Stock is then listed or
quoted.
(xix) Provide to each Holder upon written request each document
filed with the Commission pursuant to the requirements of Section 13
and Section 15 of the Exchange Act after the effective date of the
Shelf Registration Statement, unless such document is available
through the Commission's EDGAR system.
(xx) Use its commercially reasonable efforts, if the Debentures
have been rated prior to the initial sale of such Debentures, to
confirm such ratings will apply to the Debentures covered by the Shelf
Registration Statement.
(xxi) In connection with any underwritten offering conducted
pursuant to Section 8 hereof, make such representations and warranties
to the Holders of Securities registered thereunder and the
underwriters, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings;
(xxii) In connection with any underwritten offering conducted
pursuant to Section 8 hereof, obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the Managing
Underwriters) addressed to each selling Holder and the underwriters,
if any, covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(xxiii) In connection with any underwritten offering conducted
pursuant to Section 8, hereof, obtain "comfort" letters and updates
thereof 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 in the Shelf Registration
Statement), addressed to each selling Holder of Securities registered
thereunder and the underwriters, in customary form and covering
matters of the type customarily covered in "comfort" letters in
connection with primary underwritten offerings; and
(xxiv) In connection with any underwritten offering conducted
pursuant to Section 8 hereof, deliver such documents and certificates
as may be reasonably requested by the Majority Holders and the
Managing Underwriters, including those to evidence compliance with
Section 4(b)(iii) hereof and with any customary conditions contained
in
12
any underwriting agreement entered into by the Company in connection
with such offering.
(xxv) In connection with underwritten offering conducted pursuant
to Section 8 hereof, the Company shall, if requested, promptly include
or incorporate in a Prospectus supplement or post-effective amendment
to the Shelf Registration Statement such information as the Managing
Underwriters reasonably agree should be included therein and to which
the Company does not reasonably object and shall use its commercially
reasonable efforts to make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after it
is notified of the matters to be included or incorporated in such
Prospectus supplement or post-effective amendment.
(xxvi) Use its commercially reasonable efforts to take all other
steps necessary to effect the registration of the Transfer Restricted
Securities covered by the Shelf Registration Statement.
(xxvii) Enter into customary agreements (including, if requested,
an underwriting agreement in customary form) and take all other
reasonably appropriate actions in order to expedite or facilitate the
registration or the disposition of the Transfer Restricted Securities.
The actions set forth in clauses (xxii), (xxiii), (xxiv) and (xxv) of this
Section 4(b) shall be performed at each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Company of the existence of any fact of the kind described in Section
4(b)(iv)(B) through (E) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement and use of the Prospectus and any related Free
Writing Prospectuses until:
(i) such Holder has received copies of the supplemented or
amended Prospectus or applicable Issuer Free Writing Prospectus
contemplated by Section 4(b)(xii) hereof; or
(ii) such Holder is advised in writing by the Company that the
use of the Prospectus and any applicable Issuer Free Writing
Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the
Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities and any Issuer Free Writing Prospectus that was current at the time
of receipt of such Suspension Notice.
(d) Each Holder agrees by acquisition of a Transfer Restricted
Security, that no Holder shall be entitled to sell any of such Transfer
Restricted Securities pursuant to a Registration Statement, or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company
with a Notice and Questionnaire as required pursuant to Section 2(b) or
Section 2(f) hereof (including the information required to be included in
such Notice and Questionnaire) and the information set forth in the next
sentence. The Company may require each Notice Holder of Debentures to be
sold pursuant to the Shelf Registration Statement to furnish to the Company
13
such information regarding the Holder and the distribution of such
Debentures as the Company may from time to time reasonably require for
inclusion in such Registration Statement. 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 Transfer Restricted Securities
as the Company may from time to time reasonably request in writing. The
Company may exclude from such Shelf Registration Statement the Debentures
of any Holder that fails to furnish such information within a reasonable
time after receiving such request.
5. Registration Expenses.
All reasonable expenses incident to the Company's performance of or
compliance with this Agreement shall be borne by the Company regardless of
whether a Shelf Registration Statement becomes effective, including,
without limitation:
(a) all registration and filing fees and expenses (including filings
made with the NASD);
(b) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws;
(c) all expenses of printing (including printing of Prospectuses,
Issuer Free Writing Prospectuses and certificates for the Common Stock to
be issued upon conversion of the Debentures) and the Company's expenses for
messenger and delivery services and telephone;
(d) all fees and disbursements of counsel to the Company;
(e) all application and filing fees in connection with listing (or
authorizing for quotation) the Common Stock on a national securities
exchange or automated quotation system pursuant to the requirements hereof;
and
(f) all fees and disbursements of independent certified public
accountants of the Company.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company. The Company shall pay all expenses customarily borne by issuers in an
underwritten offering as set forth in Section 8(c) hereof.
6. Indemnification And Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder of
Transfer Restricted Securities (including each Initial Purchaser), its
directors, officers, employees and agents, and each person, if any, who
controls any Holder within the meaning of the Securities Act or the
Exchange Act (each, an "INDEMNIFIED HOLDER"), against any loss, claim,
damage, liability or expense, as incurred, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
expense relating to resales of the Transfer Restricted Securities)
(collectively, "LOSSES"), to which such Indemnified Holder may become
subject, insofar as any such Loss arises out of or is based upon:
14
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement as
originally filed or in any amendment thereof, or the omission or
alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein not
misleading; or
(ii) any untrue statement or alleged untrue statement of a
material fact contained in any Issuer Free Writing Prospectus, any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact, in each case, necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading,
and to reimburse each Indemnified Holder for any and all expenses including
the reasonable fees and disbursements of counsel as such expenses are
reasonably incurred by such Indemnified Holder in connection with
investigating, defending, settling, compromising or paying any such Loss;
provided, however, that the foregoing indemnity agreement shall not apply
to any Loss to the extent, but only to the extent, arising out of or based
upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder (or its
related Indemnified Holder) expressly for use therein. The indemnity
agreement set forth in this Section 6(a) shall be in addition to any
liabilities that the Company may otherwise have.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of its directors, each of its officers who
sign the Shelf Registration Statement and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act
(i) to the same extent as the foregoing indemnity from the Company to each
such Holder, but only with reference to written information relating to
such Holder furnished to the Company by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity and (ii) against any Loss, joint or several, including, but not
limited to, any Loss relating to resales of the Transfer Restricted
Securities, to which such person may become subject, insofar as any such
Loss arises out of, or is based upon any Free Writing Prospectus used by
such Holder without the prior consent of the Issuer, and in connection with
any underwritten offering, the underwriters, provided that the
indemnification obligation in this clause (ii) shall be several, not joint
and several, among the Holders who used such Free Writing Prospectus. This
indemnity agreement set forth in this Section shall be in addition to any
liabilities which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof, but the failure to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. In
case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to
the extent that it shall elect, jointly with all other indemnifying parties
similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof with counsel satisfactory to such indemnified
party; provided, however, if the defendants in any such action include both
the indemnified party and the
15
indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to it and/or
other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified
party under this Section 6 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses
of more than one separate counsel (other than local counsel), reasonably
approved by the indemnifying party, representing the indemnified parties
who are parties to such action) or (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party.
(d) The indemnifying party under this Section 6 shall not be liable
for any settlement of any proceeding effected without its written consent,
which shall not be withheld unreasonably, but if settled with such consent
or if there is a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any Loss by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 6(c) hereof, the indemnifying party 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 party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified
party, unless such settlement, compromise or consent (x) includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such action, suit or proceeding and
(y) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in Section 6 is for any reason
unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any Loss referred to therein, then each indemnifying
party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any Loss referred to
therein:
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Holders, on
the other hand, from the offering and sale of the Transfer Restricted
Securities, on the one hand, and a Holder with respect to the sale by
such Holder of the Transfer Restricted Securities, on the other hand,
or
16
(ii) if the allocation provided by Section (6)(e)(i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in Section 6(e)(i)
above but also the relative fault of the Company, on the one hand, and
the Holders, on the other hand, in connection with the statements or
omissions or alleged statements or omissions that resulted in such
Loss, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Holders, on the other hand, in connection with such offering and such sale
of the Transfer Restricted Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds
from the offering of the Debentures purchased under the Purchase Agreement
(before deducting expenses) received by the Company and the total proceeds
received by the Holders with respect to their sale of Transfer Restricted
Securities. The relative fault of the Company, on the one hand, and the
Holders, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or the
Holders, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 6(e) were determined
by pro rata allocation (even if the Holders were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this Section 6(e).
The amount paid or payable by a party as a result of the Loss referred
to above shall be deemed to include, subject to the limitations set forth
in Section 6(c), any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or
claim.
Notwithstanding the provisions of this Section 6, in no event will (i)
any Holder be required to undertake liability to any person under this
Section 6 for any amounts in excess of the dollar amount of the proceeds to
be received by such Holder from the sale of such Holder's Transfer
Restricted Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under
which such Transfer Restricted Securities are to be registered under the
Securities Act and (ii) any underwriter be required to undertake liability
to any person hereunder for any amounts in excess of the discount or
commission payable to such underwriter with respect to the Transfer
Restricted Securities underwritten by it and distributed to the public. 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. The
Holders' obligations to contribute as provided in this Section 6(e) are
several and not joint.
(f) The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 6 hereof, and will survive the
sale by a Holder of Transfer Restricted Securities.
7. Rule 144A and Rule 144. The Company agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding and during any period
in which the Company (i) is not subject to Section 13 or 15(d) of the Exchange
Act, to use its commercially reasonable efforts to make available, upon request
of any Holder, to such Holder of Transfer Restricted Securities in connection
with any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such
17
Holder, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A, and (ii) is subject to Section 13 or 15(d) of the Exchange Act, to use its
commercially reasonable efforts to make all filings required thereby in a timely
manner in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144.
8. Underwritten Registrations.
(a) Any Holder of Transfer Restricted Securities who desires to do so
may sell Transfer Restricted Securities (in whole or in part) in an
underwritten offering; provided that (i) the Electing Holders of at least a
majority in aggregate principal amount of the Transfer Restricted
Securities then covered by the Shelf Registration Statement shall request
such an offering and (ii) at least such aggregate principal amount of such
Transfer Restricted Securities shall be included in such offering; and
provided further that the Company shall not be obligated to participate in
more than one underwritten offering during the Effectiveness Period. Upon
receipt of such a request, the Company shall provide all Holders of
Transfer Restricted Securities written notice of the request, which notice
shall inform such Holders that they have the opportunity to participate in
the offering. If any of the Transfer Restricted Securities covered by the
Shelf Registration Statement are to be sold in an underwritten offering,
the Managing Underwriters shall be selected by the Majority Holders;
provided, however, that such underwriters must be reasonably satisfactory
to the Company.
(b) No person may participate in any underwritten offering pursuant to
the Shelf Registration Statement unless such person (i) agrees to sell such
person's Transfer Restricted Securities on the basis reasonably provided in
any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements; (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting
arrangements; and (iii) if such Holder is not then a Notice Holder, such
Holder returns a completed and signed Notice and Questionnaire to the
Company in accordance with Section 2(b) or Section 2(f) hereof within a
reasonable amount of time before such underwritten offering.
(c) The Holders participating in any underwritten offering shall be
responsible for any underwriting discounts and commissions and fees and,
subject to Section 5 hereof, expenses of their own counsel. The Company
shall pay all reasonable expenses customarily borne by issuers in an
underwritten offering, including but not limited to filing fees, the
reasonable fees and disbursements of its counsel and independent public
accountants and any printing expenses incurred in connection with such
underwritten offering. Notwithstanding the foregoing or the provisions of
Section 4(b)(xxv) hereof, upon receipt of a request from the Managing
Underwriter or a representative of holders of a majority of the Transfer
Restricted Securities to be included in an underwritten offering to prepare
and file an amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the Company may
delay the filing of any such amendment or supplement for up to 90 days if
the Board of Directors of the Company shall have determined in good faith
that the Company has a bona fide business reason for such delay.
9. Miscellaneous.
(a) Free Writing Prospectuses. Each Holder represents that it has not
prepared or had prepared on its behalf or used or referred to, and agrees
that it will not prepare or have prepared on its behalf or use or refer to,
any Free Writing Prospectus, and has not distributed and will not
distribute any written materials in connection with the offer or sale of
the Transfer Restricted
18
Securities without the prior express written consent of the Company and, in
connection with any underwritten offering, the underwriters. Any such Free
Writing Prospectus consented to by the Company and, if applicable, the
underwriters, as the case may be, is hereinafter referred to as a
"PERMITTED FREE WRITING PROSPECTUS." The Company represents and agrees that
it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and recordkeeping.
(b) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 2 hereof may
result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely, and that, in the
event of any such failure, in addition to being entitled to exercise all
rights provided to it herein, in the Indenture or in the Purchase Agreement
or granted by law, including recovery of liquidated or other damages, the
Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's obligations under Section 2 hereof.
The Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(c) Actions Affecting Transfer Restricted Securities. The Company
shall not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class that would materially and
adversely affect the ability of the Holders of Transfer Restricted
Securities to include such Transfer Restricted Securities in a registration
undertaken pursuant to this Agreement.
(d) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement that is still in effect with respect to its securities
that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. In addition,
the Company shall not grant to any of its securityholders (other than the
Holders of Transfer Restricted Securities in such capacity) the right to
include any of its securities in the Shelf Registration Statement provided
for in this Agreement other than the Transfer Restricted Securities.
(e) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of a Majority of Holders; provided, however, that with
respect to any matter that directly or indirectly adversely affects the
rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose securities are being
sold pursuant to a Shelf Registration Statement and does not directly or
indirectly adversely affect the rights of other Holders, may be given by
the Majority Holders, determined on the basis of Transfer Restricted
Securities being sold rather than registered under such Shelf Registration
Statement.
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first class
mail (registered or certified, return receipt requested), facsimile
transmission, or air courier guaranteeing overnight delivery:
19
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of the Common
Stock, as the case may be; and
(ii) if to the Company, initially at its address set forth in the
Purchase Agreement,
With a copy to:
Calfee, Halter & Griswold LLP
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114
Facsimile: (216) 241-0816
Attention: Douglas A. Neary
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, if transmitted by facsimile; and on the
next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
(g) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities. The
Company hereby agrees to extend the benefit of this Agreement to any Holder
and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(h) 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.
(i) Jurisdiction. The Company agrees that any suit, action or
proceeding against the Company brought by any Holder or Initial Purchaser,
the directors, officers, employees, Affiliates and agents of any Holder or
Initial Purchaser, or by any person who controls any Holder or Initial
Purchaser, arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any State or U.S. federal court in
The City of New York and County of New York, and waives any objection which
it may now or hereafter have to the laying of venue of any such proceeding,
and irrevocably submits to the non-exclusive jurisdiction of such courts in
any suit, action or proceeding. To the extent that the Company may acquire
any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to
itself or its property, it hereby irrevocably waives such immunity in
respect of this Agreement, to the fullest extent permitted by law.
(j) Debentures Held by the Company or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities
held by the Company or its Affiliates (other than subsequent Holders if
such subsequent Holders are deemed to be Affiliates solely by reason of
20
their holding of such Transfer Restricted Securities) shall not be counted
in determining whether such consent or approval was given by the Holders of
such required percentage.
(k) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(l) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(m) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(n) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
by the Company with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INVACARE CORPORATION, an Ohio corporation
By: /s/ Gerald B. Blouch
-------------------------------------
Name: Gerald B. Blouch
Title: President and COO
[Resale Registration Rights Agreement Signature Page]
SUBSIDIARY GUARANTORS
ADAPTIVE SWITCH LABORATORIES, INC.
INVACARE FLORIDA CORPORATION
INVACARE CREDIT CORPORATION
THE AFTERMARKET GROUP, INC.
THE HELIXX GROUP, INC.
CHAMPION MANUFACTURING INC.
HEALTHTECH PRODUCTS, INC.
INVACARE CANADIAN HOLDINGS, INC.
INVACARE INTERNATIONAL CORPORATION
By: /s/ Gerald B. Blouch
------------------------------------
Name: Gerald B. Blouch
Title: President
[Resale Registration Rights Agreement Signature Page]
2
KUSCHALL, INC.
ALTIMATE MEDICAL, INC.
INVACARE SUPPLY GROUP, INC.
INVACARE HOLDINGS, LLC
By: /s/ Gerald B. Blouch
------------------------------------
Name: Gerald B. Blouch
Title: President
[Resale Registration Rights Agreement Signature Page]
3
FREEDOM DESIGNS, INC.
By: /s/ Gerald B. Blouch
------------------------------------
Name: Gerald B. Blouch
Title: President
[Resale Registration Rights Agreement Signature Page]
4
MEDBLOC, INC.
GARDEN CITY MEDICAL INC.
By: /s/ Bradford J. Patrick
------------------------------------
Name: Bradford J. Patrick
Title: Assistant Secretary
[Resale Registration Rights Agreement Signature Page]
5
INVACARE FLORIDA HOLDINGS, LLC
By: /s/ Gerald B. Blouch
------------------------------------
Name: Gerald B. Blouch
Title: President
[Resale Registration Rights Agreement Signature Page]
6
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written:
BANC OF AMERICA SECURITIES LLC
KEYBANC CAPITAL MARKETS,
A DIVISION OF MCDONALD
INVESTMENTS INC.
BMO CAPITAL MARKETS CORP.
SUNTRUST CAPITAL MARKETS, INC.
By: Banc of America Securities LLC
By: /s/ Derek Dillon
---------------------------------
Name: Derek Dillon
-------------------------------
Title: Managing Director
------------------------------
[Resale Registration Rights Agreement Signature Page]
7