Exhibit 4.4
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
by and among
Invacare Corporation
The Guarantors Named Herein
and
Banc of America Securities LLC
KeyBanc Capital Markets, a Division of McDonald Investments Inc.
BMO Capital Markets Corp.
SunTrust Capital Markets, Inc.
Dated as of February 12, 2007
Registration Rights Agreement
This Registration Rights Agreement (this "Agreement") is made and entered
into as of February 12, 2007, by and among Invacare Corporation, an Ohio
corporation (the "Company"), and 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.
(collectively, the "Initial Purchasers"), each of whom has agreed to purchase
the Company's 9 3/4% Senior Notes due 2015 (the "Initial Notes") fully and
unconditionally guaranteed by the Guarantors (the "Guarantees") pursuant to the
Purchase Agreement (as defined below). The Initial Notes and the Guarantees
attached thereto are herein collectively referred to as the "Initial
Securities."
This Agreement is made pursuant to the Purchase Agreement, dated February
7, 2007 (the "Purchase Agreement"), among the Company, the Guarantors and the
Initial Purchasers (i) for the benefit of the Initial Purchasers and (ii) for
the benefit of the holders from time to time of the Initial Securities,
including the Initial Purchasers. In order to induce the Initial Purchasers to
purchase the Initial Securities, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 5(h) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. In addition to other terms defined herein, as used
in this Agreement, the following capitalized terms shall have the following
meanings:
Additional Interest Payment Date: With respect to the Initial Securities,
each Interest Payment Date.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday
or a day on which banking institutions or trust companies located in New York,
New York are authorized or obligated to be closed.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble hereto.
Consummate: A registered Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Securities to be issued in the Exchange
Offer, (ii) the maintenance of such Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the minimum period required pursuant to Section 3(b) hereof, and (iii) the
delivery by the Company to the Registrar under the Indenture of Exchange
Securities in the same aggregate principal amount as the aggregate principal
amount of Initial Securities that were tendered by Holders thereof pursuant to
the Exchange Offer.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Securities Act of
the Exchange Securities pursuant to a Registration Statement pursuant to which
the Company offers the Holders of all outstanding Transfer Restricted Securities
the opportunity to exchange all such outstanding Transfer Restricted Securities
held by such Holders for Exchange Securities in an aggregate principal amount
equal to the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose to
sell the Initial Securities to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Securities Act and to certain non-U.S.
persons pursuant to Regulation S under the Securities Act.
Exchange Securities: The 9 3/4% Senior Notes due 2015, of the same series
under the Indenture as the Initial Securities, to be issued to Holders in
exchange for Transfer Restricted Securities pursuant to this Agreement.
Guarantees: As defined in the preamble hereto.
Guarantors: As defined in the preamble hereto.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of February 12, 2007, by and among the
Company, the Guarantors and Wells Fargo Bank, N.A., as trustee (the "Trustee"),
pursuant to which the Securities are to be issued, as such Indenture is amended
or supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Company of the Initial
Securities to the Initial Purchasers pursuant to the Purchase Agreement.
Initial Securities: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Securities.
Issuer Free Writing Prospectus: As defined in Section 4(c) hereof.
NASD: National Association of Securities Dealers Inc.
Person: An individual, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
2
Prospectus: The prospectus included in a 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.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating
to (a) an offering of Exchange Securities pursuant to an Exchange Offer or (b)
the registration for resale of Transfer Restricted Securities pursuant to the
Shelf Registration Statement, which is filed pursuant to the provisions of this
Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Rule 430B Information: Any information included in a Prospectus that was
omitted from the Registration Statement at the time it became effective but that
is deemed to be part of and included in such Registration Statement pursuant to
Rule 430B under the Securities Act.
Securities: The Initial Securities and the Exchange Securities.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a) hereof.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: Each Initial Security, until the earliest
to occur of (a) the date on which such Initial Security is exchanged in the
Exchange Offer for an Exchange Security entitled to be resold to the public by
the Holder thereof without complying with the prospectus delivery requirements
of the Securities Act, (b) the date on which such Initial Security has been
disposed of pursuant to and in accordance with a Shelf Registration Statement,
(c) the date on which such Initial Security is distributed to the public
pursuant to Rule 144 under the Securities Act or by a Broker-Dealer pursuant to
the "Plan of Distribution" contemplated by the Exchange Offer Registration
Statement (including delivery of the Prospectus contained therein), and (d) the
date on which such Initial Security becomes eligible to be resold without
restriction pursuant to Rule 144(k) under the Securities Act.
Underwritten Registration or Underwritten Offering: A registration in which
securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The securities entitled to the benefits
of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a
holder of Transfer Restricted Securities (each, a "Holder") whenever such Person
owns Transfer Restricted Securities. Holders may include one or more of the
Initial Purchasers from time to time.
3
SECTION 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law
or Commission policy (after the procedures set forth in Section 6(a) hereof have
been complied with), each of the Company and the Guarantors shall (i) use
commercially reasonable efforts to cause to be filed with the Commission on or
prior to the date that is 90 days after the Closing Date (or if such 90th day is
not a Business Day, the next succeeding Business Day), a Registration Statement
under the Securities Act relating to the Exchange Securities and the Exchange
Offer, (ii) use its commercially reasonable efforts to cause such Registration
Statement to become effective at the earliest possible time, but in no event
later than 180 days after the Closing Date (or if such 180th day is not a
Business Day, the next succeeding Business Day), and (iii) in connection with
the foregoing, use commercially reasonable efforts to (A) file all pre-effective
amendments to such Registration Statement as may be necessary in order to cause
such Registration Statement to become effective, (B) if applicable, file a
post-effective amendment to such Registration Statement pursuant to Rule 430A
under the Securities Act and (C) cause all necessary filings in connection with
the registration and qualification of the Exchange Securities to be made under
the state securities or blue sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer. The Exchange Offer Registration
Statement shall be on the appropriate form permitting registration of the
Exchange Securities to be offered in exchange for the Transfer Restricted
Securities and to permit resales of Initial Securities held by Broker-Dealers as
contemplated by Section 3(c) hereof.
(b) The Company and the Guarantors shall use their commercially reasonable
efforts to cause the Exchange Offer Registration Statement to be effective
continuously and shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state securities
laws to Consummate the Exchange Offer; provided, however, that in no event shall
such period be less than 30 calendar days and not more than 45 calendar days (or
longer if required by applicable law) after the date notice of the Exchange
Offer is mailed to the Holders. The Company shall cause the Exchange Offer to
comply with all applicable federal and state securities laws applicable to the
Company. No securities other than the Exchange Securities shall be included in
the Exchange Offer Registration Statement. The Company shall use its
commercially reasonable efforts to cause the Exchange Offer to be Consummated no
later than 210 days after the Closing Date (or if such 210th day is not a
Business Day, the next succeeding Business Day).
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Securities that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Initial Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Securities
received by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement. Such "Plan of
Distribution" section shall also contain all other information with respect to
such resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Initial Securities held by
any such Broker-Dealer except to the extent required by the Commission as a
result of a change in policy after the date of this Agreement.
Each of the Company and the Guarantors shall use its commercially
reasonable efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Section 6(c) hereof to the extent necessary to ensure that it is available
for resales of
4
Initial Securities acquired by Broker-Dealers for their own accounts as a result
of market-making activities or other trading activities, and to ensure that it
conforms in all material respects with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period ending on the earlier of (i) 180 days
from the date on which the Exchange Offer Registration Statement is declared
effective and (ii) the date on which a Broker-Dealer is no longer required to
deliver a prospectus in connection with market-making or other trading
activities.
The Company shall provide sufficient copies of the latest version of such
Prospectus to Broker-Dealers promptly upon request at any time during such
180-day (or shorter as provided in the foregoing sentence) period in order to
facilitate such resales.
SECTION 4. Shelf Registration.
(a) Shelf Registration. If (i) the Company is not required to file an
Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy (after the procedures set forth in Section 6(a) hereof have been complied
with), (ii) for any reason the Exchange Offer is not Consummated within 210 days
after the Closing Date (or if such 210th day is not a Business Day, the next
succeeding Business Day), or (iii) with respect to any Holder of Transfer
Restricted Securities (A) such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) such Holder
may not resell the Exchange Securities acquired by it in the Exchange Offer to
the public without delivering a prospectus and that the Prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds
Initial Securities acquired directly from the Company or one of its affiliates,
the Company and the Guarantors shall
(x) use their commercially reasonable efforts to cause to be filed a
shelf registration statement pursuant to Rule 415 under the Securities Act,
which may be an amendment to the Exchange Offer Registration Statement (in
either event, the "Shelf Registration Statement"), on or prior to the
earliest to occur of (1) the 60th day after the date on which the Company
determines that it is not required to file the Exchange Offer Registration
Statement, (2) the 210th day after the Closing Date (in the case of clause
(ii) above) (or if such 210th day is not a Business Day, the next
succeeding Business Day) and (3) the 60th day after the date on which the
Company receives notice from a Holder of Transfer Restricted Securities or
an Initial Purchaser (in the case of clause (iii) above) (or if such 60th
day is not a Business Day, the next succeeding Business Day) (such earliest
date being the "Shelf Filing Deadline"), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities the Holders
of which shall have provided the information required pursuant to Section
4(b) hereof; and
(y) use their commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
before the 180th day after the Shelf Filing Deadline (or if such 180th day
is not a Business Day, the next succeeding Business Day).
Each of the Company and the Guarantors shall use its commercially
reasonable efforts to keep such Shelf Registration Statement continuously
effective, supplemented and amended as required by the provisions of Sections
6(b) and (c) hereof to the extent necessary to ensure that it is available for
resales of Transfer Restricted Securities by the Holders entitled to the benefit
of this Section 4(a), and to ensure that it conforms in all material respects
with the requirements of this Agreement, the Securities Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years following the effective date of such Shelf
Registration Statement (or such shorter period
5
that will terminate when all the Initial Securities covered by such Shelf
Registration Statement cease to be Transfer Restricted Securities).
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. Each Holder as to which any Shelf Registration
Statement 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 Holder not materially misleading.
(c) Issuer Free Writing Prospectuses. The Company represents that any
issuer free writing prospectus relating to the Securities (an "Issuer Free
Writing Prospectus") (as defined in Rule 433 of the Securities Act) will not
include any information that conflicts with the information contained in the
Shelf Registration Statement or the Prospectus and, any Issuer Free Writing
Prospectus, when taken together with the information in the Shelf Registration
Statement and the Prospectus, will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
SECTION 5. Additional Interest. If (i) any of the Registration Statements
required by this Agreement is not filed with the Commission on or prior to the
date specified for such filing in this Agreement, (ii) any of such Registration
Statements has not been declared effective by the Commission on or prior to the
date specified for such effectiveness in this Agreement (the "Effectiveness
Target Date"), (iii) the Exchange Offer has not been Consummated on or prior to
the date specified for such consummation in this Agreement or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post effective
amendment to such Registration Statement that ceases such failure and that is
itself immediately declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Company hereby agrees that the
interest rate borne by the Transfer Restricted Securities shall be increased by
0.25% per annum during the 90-day period immediately following the occurrence of
any Registration Default and shall increase by 0.25% per annum at the end of
each subsequent 90-day period during which such Registration Default continues,
but in no event shall such increase ever exceed a maximum of 1.00% per annum.
Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the interest rate borne by the relevant Transfer
Restricted Securities will be reduced to the original interest rate borne by
such Transfer Restricted Securities; provided, however, that, if after any such
reduction in interest rate, a different Registration Default occurs, the
interest rate borne by the relevant Transfer Restricted Securities shall again
be increased pursuant to the foregoing provisions.
All obligations of the Company and the Guarantors to pay additional
interest accrued with respect to a Registration Default set forth in the
preceding paragraph 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
security shall have been satisfied in full.
SECTION 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, the Company and the Guarantors shall comply with all of the provisions of
Section 6(c) hereof, shall use their
6
commercially reasonable efforts to effect such exchange to permit the sale of
Transfer Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof, and shall comply with all of the following
provision:
(i) As a condition to its participation in the Exchange Offer pursuant
to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation thereof, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an affiliate of
the Company, (B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any Person to participate in,
a distribution of the Exchange Securities to be issued in the Exchange
Offer, (C) it is acquiring the Exchange Securities in its ordinary course
of business and (D) it is not acting on behalf of any person who could not
truthfully make the foregoing representations. In addition, all such
Holders of Transfer Restricted Securities shall otherwise cooperate in the
Company's preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted
in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters, and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale transaction
should be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Exchange Securities
obtained by such Holder in exchange for Initial Securities acquired by such
Holder directly from the Company.
(b) Shelf Registration Statement. In connection with the Shelf Registration
Statement, each of the Company and the Guarantors shall comply with all the
provisions of Section 6(c) hereof and shall use its commercially reasonable
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto each of the Company and
the Guarantors shall, in accordance with Section 4(a), prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(c) General Provisions. In connection with any Exchange Offer Registration
Statement, any Shelf Registration Statement and any Prospectus related thereto
required by this Agreement to permit the sale or resale of Transfer Restricted
Securities (including, without limitation, any Exchange Offer Registration
Statement, any Shelf Registration Statement and the related Prospectus required
to permit resales of Initial Securities by Broker-Dealers), each of the Company
and the Guarantors shall:
(i) use its commercially reasonable efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements (including, if required by the Securities Act or any regulation
thereunder, financial statements of the Guarantors) for the period
specified in Section 3 or 4 hereof, as applicable; upon the occurrence of
any event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company shall file promptly an appropriate amendment to such Registration
Statement (which may be accomplished to the extent permitted by law by the
filing of documents incorporated by reference therein), in
7
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 such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) use its commercially reasonable efforts to prepare and file with
the Commission such amendments and post-effective amendments to the
applicable Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; 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 in
all material respects with the provisions of Rules 424 and 430A under the
Securities Act, to the extent applicable, 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 such Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders promptly
and, if requested by such Persons, to confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Registration Statement
or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue in any material respect, or that requires the making of any
additions to or changes in the Registration Statement or the Prospectus in
order to make the statements therein not misleading in any material
respect. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or blue sky laws,
each of the Company and the Guarantors shall use its commercially
reasonable efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish without charge to each of the Initial Purchasers, each
selling Holder named in any Registration Statement, and each of the
underwriter(s), if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or Prospectus, which
documents will be subject to the review and comment of such Holders and
underwriter(s) in connection with such sale, if any, for a period of at
least five Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus to which an Initial Purchaser of
Transfer Restricted Securities covered by such Registration Statement or
the underwriter(s), if any, shall reasonably object in writing within five
Business Days after the receipt thereof (such objection to be deemed timely
made upon confirmation of telecopy transmission within such period). The
objection of an Initial Purchaser or underwriter, if any, shall be deemed
to be reasonable if such Registration
8
Statement, amendment, Prospectus or supplement, as applicable, as proposed
to be filed, contains a material misstatement or omission;
(v) make available at reasonable times for inspection by the Initial
Purchasers, the managing underwriter(s), if any, participating in any
disposition pursuant to such Registration Statement and any attorney or
accountant retained by such Initial Purchasers or any of the
underwriter(s), all financial and other records, pertinent corporate
documents and properties of each of the Company and the Guarantors and
cause the Company's and the Guarantors' officers, directors and employees
to supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness and to participate in meetings with
investors to the extent requested by any Holder, the Initial Purchasers or
the managing underwriter(s), if any; provided, however, that any
information that is designated by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Holders or any such underwriter, attorney or
accountant, unless such disclosure is made in connection with a court
proceeding or required by law, such Holder or Holders or any such
underwriter, attorney or accountant receives a written notification from
the Company that such information is no longer confidential, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality;
(vi) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, information with respect to the principal amount of
Transfer Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the offering of
the Transfer Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(vii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
Securities covered thereby or the underwriter(s), if any;
(viii) furnish to each Initial Purchaser, each selling Holder and each
of the underwriter(s), if any, without charge, upon such person's request,
at least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including financial statements
and schedules;
(ix) deliver to each selling Holder and each of the underwriter(s), if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; each of the Company and the Guarantors
hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto;
9
(x) enter into such customary agreements (including an underwriting
agreement), and make such customary representations and warranties, and
take all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities pursuant
to any Registration Statement contemplated by this Agreement, all to such
extent as may be reasonably requested by any Initial Purchaser or
underwriter in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and whether or not
an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, each of the Company and the
Guarantors shall:
(A) furnish to each Initial Purchaser, each selling Holder and
each underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of the
Consummation of the Exchange Offer and, if applicable, the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by (y) the
President or any Vice President and (z) a principal financial or
accounting officer of each of the Company and the Guarantors,
confirming, as of the date thereof, matters substantially similar
to the matters set forth in paragraphs (i), (ii) and (iii) of
Section 5(e) of the Purchase Agreement and such other matters as
such parties may reasonably request;
(2) an opinion of counsel for the Company and the
Guarantors, covering matters substantially similar to the matters
set forth in Section 5(c) of the Purchase Agreement and such
other matters as such parties may reasonably request; and
(3) a customary comfort letter, dated the date of
effectiveness of the Shelf Registration Statement, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily requested to be covered
in comfort letters by underwriters in connection with primary
underwritten offerings;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
Section 6(c)(x)(A) hereof and with any customary conditions contained
in the underwriting agreement or other agreement entered into by the
Company or any of the Guarantors pursuant to this Section 6(c)(x), if
any.
If at any time the representations and warranties of the Company and
the Guarantors contemplated in Section 6(c)(x)(A)(1) hereof cease to be
true and correct, the Company or the Guarantors shall so advise the Initial
Purchasers and the underwriter(s), if any, and each selling Holder promptly
and, if requested by such Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the
10
registration and qualification of the Transfer Restricted Securities under
the state securities or blue sky laws of such jurisdictions as the selling
Holders or underwriter(s), if any, may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that none of the Company or the
Guarantors shall be required to register or qualify as a foreign
corporation where it is not then so qualified or to take any action that
would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement,
in any jurisdiction where it is not then so subject;
(xii) issue, upon the request of any Holder of Initial Securities
covered by the Exchange Offer Registration Statement, Exchange Securities
having an aggregate principal amount equal to the aggregate principal
amount of Initial Securities surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such Exchange Securities to
be registered in the name of such Holder or in the name of the purchaser(s)
of such Exchange Securities, as the case may be; in return, the Initial
Securities held by such Holder shall be surrendered to the Company for
cancellation;
(xiii) cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends, if appropriate; and enable such Transfer Restricted
Securities to be in such denominations (in $1,000 increments) and
registered in such names as the Holders or the underwriter(s), if any, may
request at least two Business Days prior to any sale of Transfer Restricted
Securities made by such Holders or underwriter(s);
(xiv) use its commercially reasonable efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities in accordance with this Agreement, subject to the
proviso contained in Section 6(c)(xi) hereof;
(xv) if any fact or event contemplated by Section 6(c)(iii)(D) hereof
shall exist or have occurred, use its commercially reasonable efforts to
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement covering
such Transfer Restricted Securities and provide the Trustee under the
Indenture with printed certificates for such Transfer Restricted Securities
which are in a form eligible for deposit with the Depository Trust Company
and take all other action reasonably necessary to ensure that all such
Transfer Restricted Securities are eligible for deposit with the Depository
Trust Company;
(xvii) 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 (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD;
11
(xviii) otherwise use its commercially reasonable efforts to comply in
all material respects with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as soon
as practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm commitment or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement;
(xix) cause the Indenture to be qualified under the Trust Indenture
Act not later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate with
the Trustee and the Holders of Securities to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and to execute and
use its commercially reasonable efforts to cause the Trustee to execute,
all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xx) cause all Securities covered by the Registration Statement to be
listed on each securities exchange or automated quotation system on which
similar securities issued by the Company are then listed if requested by
the Holders of a majority in aggregate principal amount of Initial
Securities or the managing underwriter(s), if any.
Each Holder agrees by acquisition of a Transfer Restricted Security that,
upon receipt of any notice from the Company of the existence of any fact of the
kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof,
or until it is advised in writing (the "Advice") by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. 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 that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof or
shall have received the Advice; provided, however, that no such extension shall
be taken into account in determining whether Additional Interest is due pursuant
to Section 5 hereof or the amount of such Additional Interest, it being agreed
that the Company's option to suspend use of a Registration Statement pursuant to
this paragraph shall be treated as a Registration Default for purposes of
Section 5 hereof.
SECTION 7. Registration Expenses.
(a) All reasonable expenses incident to the Company's and the
Guarantors' performance of or compliance with this Agreement will be borne by
the Company and the Guarantors jointly and severally, regardless of whether a
Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees and expenses (including filings made by any Initial
Purchaser or Holder with the NASD (and, if applicable, the fees and expenses of
any "qualified independent underwriter" and its counsel that may be required by
the rules and regulations of the NASD)); (ii) all fees and expenses of
12
compliance with federal securities and state securities or blue sky laws; (iii)
all expenses of printing (including printing certificates for the Exchange
Securities to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all reasonable fees and
disbursements of counsel for the Company, the Guarantors and, subject to Section
7(b) hereof, the Holders of Transfer Restricted Securities; (v) all application
and filing fees in connection with listing the Exchange Securities on a
securities exchange or automated quotation system pursuant to the requirements
thereof; and (vi) all fees and disbursements of independent certified public
accountants of the Company and the Guarantors (including the expenses of any
special audit and comfort letters required by or incident to such performance).
Each of the Company and the Guarantors will, in any event, bear its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantors,
jointly and severally, will reimburse the Initial Purchasers and the Holders of
Transfer Restricted Securities being tendered in the Exchange Offer and/or
resold pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be Fried, Frank, Harris, Shriver & Jacobson LLP or
such other counsel as may be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. Indemnification.
(a) The Company and the Guarantors, jointly and severally, agree to
indemnify and hold harmless (i) each Holder (including, without limitation, the
Initial Purchasers) and (ii) each Person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
any Holder (any of the Persons referred to in this clause (ii) being hereinafter
referred to as a "controlling person") and (iii) the respective officers,
directors, partners, employees, representatives and agents of any Holder or any
controlling person (any Person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Holder"), to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including, without limitation, and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing,
settling, compromising, paying or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (including the Rule 430B Information) or Prospectus (or any amendment
or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment
or supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by an untrue statement or omission or alleged
untrue statement or omission that is made in reliance upon and in conformity
with information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein. This indemnity
agreement shall be in addition to any liability which the Company or any of the
Guarantors may otherwise have.
13
In case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Company or the Guarantors, such Indemnified Holder (or the Indemnified Holder
controlled by such controlling person) shall promptly notify the Company and the
Guarantors in writing; provided, however, that the failure to give such notice
shall not relieve any of the Company or the Guarantors of its obligations
pursuant to this Agreement to the extent the Company is not materially
prejudiced as a proximate result of such omission. Such Indemnified Holder shall
have the right to employ its own counsel in any such action and the fees and
expenses of such counsel shall be paid, as incurred, by the Company and the
Guarantors (regardless of whether it is ultimately determined that an
Indemnified Holder is not entitled to indemnification hereunder). In case any
such action is brought against any Indemnified Holder, and it notifies the
Company and the Guarantors of the commencement thereof, the Company and the
Guarantors will be entitled to participate therein, and to the extent that they
may elect by written notice delivered to the Indemnified Holder promptly after
receiving the aforesaid notice from such Indemnified Holder, to assume the
defense thereof, with counsel satisfactory to such Indemnified Holder; provided,
however, that if the defendants in any such action include both the Indemnified
Holder and the Company and the Guarantors and the Indemnified Holder shall have
reasonably concluded that there may be legal defenses available to it and/or
other Indemnified Holders which are different from or additional to those
available to the Company and the Guarantors, the Indemnified Holder or Holders
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
Indemnified Holder or Holders. Upon receipt of notice from the Company and the
Guarantors to such Indemnified Holder of their election to assume the defense of
such action and approval by the Indemnified Holder of counsel (which shall not
be unreasonably withheld or delayed), the Company and the Guarantors will not be
liable to such Indemnified Holder under this Section 8 for any legal or other
expenses subsequently incurred by such Indemnified Holder in connection with the
defense thereof unless (i) the Indemnified Holder shall have employed separate
counsel in accordance with the proviso to the next preceding sentence (it being
understood, however, that the Company and the Guarantors shall not, in respect
of the legal expenses of any Indemnified Holder in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate counsel (in addition to any local
counsel), approved by the Company and the Guarantors, representing the
Indemnified Holder or Holders under this paragraph (a) who are parties to such
action), (ii) the Company and the Guarantors shall not have employed counsel
reasonably satisfactory to the Indemnified Holder to represent the Indemnified
Holder within a reasonable time after notice of commencement of the action or
(iii) the Company and the Guarantors have authorized the employment of counsel
for the Indemnified Holder at the expense of the Company and the Guarantors; and
except that, if clause (i) or (iii) is applicable, such liability shall be only
in respect of the counsel referred to in such clause (i) or (iii). The Company
and the Guarantors shall be liable for any settlement of any such action or
proceeding effected with the Company's and the Guarantors' prior written
consent, which consent shall not be withheld unreasonably, and each of the
Company and the Guarantors agrees to indemnify and hold harmless any Indemnified
Holder from and against any loss, claim, damage, liability or expense by reason
of any settlement of any such action effected with the written consent of the
Company and the Guarantors. The Company and the Guarantors shall not, without
the prior written consent of each Indemnified Holder, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any pending
or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder by any such Indemnified
Holder (whether or not any Indemnified Holder is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional release
of such Indemnified Holder from all liability arising out of such action, claim,
litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not
jointly, to indemnify and hold harmless the Company, the Guarantors and their
respective directors and officers who sign a Registration Statement, and any
Person controlling (within the meaning of Section 15 of the Securities
14
Act or Section 20 of the Exchange Act) the Company or any of the Guarantors, and
the respective officers, directors, partners, employees, representatives and
agents of each such Person, to the same extent as the foregoing indemnity from
the Company and the Guarantors to each of the Indemnified Holders, but only with
respect to claims and actions based on information relating to such Holder
furnished in writing by such Holder expressly for use in any Registration
Statement. In case any action or proceeding shall be brought against the
Company, the Guarantors or their respective directors or officers or any such
controlling person in respect of which indemnity may be sought against a Holder
of Transfer Restricted Securities, such Holder shall have the rights and duties
given the Company and the Guarantors, and the Company, the Guarantor, their
respective directors and officers and such controlling person shall have the
rights and duties given to each Holder by the preceding paragraph.
(c) If the indemnification provided for in this Section 8 is unavailable to
an indemnified party under Section 8(a) or (b) hereof (other than by reason of
exceptions provided in those Sections) in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Holders, on the other hand,
from the Initial Placement (which in the case of the Company and the Guarantors
shall be deemed to be equal to the total gross proceeds to the Company and the
Guarantors from the Initial Placement), the amount of Additional Interest which
did not become payable as a result of the filing of the Registration Statement
resulting in such losses, claims, damages, liabilities, judgments actions or
expenses, and such Registration Statement, or if such allocation is not
permitted by applicable law, the relative fault of the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantors on the one hand and of the
Indemnified Holder on the other 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 or any of the Guarantors, on the one hand, or the
Indemnified 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 amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 8(a) hereof, any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action or claim.
The Company, the Guarantors and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(c) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or expenses 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 reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, none of the Holders (and its related Indemnified
Holders) shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the total discount received by such Holder with respect
to the Initial Securities exceeds the amount of any damages which such Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The Holders'
15
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Initial Securities held by each
of the Holders hereunder and not joint.
SECTION 9. Rule 144A. Each of the Company and the Guarantors hereby agrees
with each Holder, for so long as any Transfer Restricted Securities remain
outstanding, to use its commercially reasonable efforts to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities 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
Transfer Restricted Securities pursuant to Rule 144A under the Securities Act.
SECTION 10. Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder unless such Holder (a)
agrees to sell such Holder's Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
SECTION 11. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker(s) and managing underwriter(s)
that will administer such offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, however, that such investment banker(s) and managing
underwriter(s) must be reasonably satisfactory to the Company.
SECTION 12. Miscellaneous.
(a) Remedies. Each of the Company and the Guarantors hereby agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. Each of the Company and the Guarantors will
not on or after the date of this Agreement enter into any agreement with respect
to its securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. Neither the
Company nor any of the Guarantors has previously entered into any agreement that
is still in effect granting any registration rights with respect to its
securities to any Person, other than the resale and registration rights
agreement dated the date hereof, among the Company, the guarantors named therein
and the initial purchasers named therein relating to the Company's 4.125%
convertible senior subordinated debentures due 2027. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's or any of the Guarantors'
securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. The Company will not take any
action, or permit any change to occur, with respect to the Securities that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has (i) in the case of
Section 5 hereof and this Section 12(d)(i), obtained the written consent of
Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other
16
provisions hereof, obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities (excluding any
Transfer Restricted Securities held by the Company or its Affiliates).
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer may be given by the Holders
of a majority of the outstanding principal amount of Transfer Restricted
Securities being tendered or registered; provided, however, that, with respect
to any matter that directly or indirectly affects the rights of any Initial
Purchaser hereunder, the Company shall obtain the written consent of each such
Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.
(e) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company and the Guarantors:
One Invacare Way
Elyria, Ohio 44036
Phone: (440) 329-6000
Facsimile: (440) 329-6036
Attention: Dale C. LaPorte, Esq.
General Counsel
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
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) 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; provided, however, that
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 acquired
Transfer Restricted Securities from such Holder.
17
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) 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.
18
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
[Registration Rights Agreement Signature Page]
19
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
[Registration Rights Agreement Signature Page]
20
KUSCHALL, INC.
ALTIMATE MEDICAL, INC.
INVACARE SUPPLY GROUP, INC.
INVACARE HOLDINGS, LLC
By: /s/ Gerald B. Blouch
----------------------------
Name: Gerald B. Blouch
Title: President
[Registration Rights Agreement Signature Page]
21
FREEDOM DESIGNS, INC.
By: /s/ Gerald B. Blouch
-----------------------------
Name: Gerald B. Blouch
Title: President
[Registration Rights Agreement Signature Page]
22
MEDBLOC, INC.
GARDEN CITY MEDICAL INC.
By: /s/ Bradford J. Patrick
--------------------------------
Name: Bradford J. Patrick
Title: Assistant Secretary
[Registration Rights Agreement Signature Page]
23
INVACARE FLORIDA HOLDINGS, LLC
By: /s/ Gerald B. Blouch
---------------------------
Name: Gerald B. Blouch
Title: President
[Registration Rights Agreement Signature Page]
24
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/ Lex Maultsby
-----------------------------
Name: Lex Maultsby
Title: Managing Director
[Registration Rights Agreement Signature Page]
25