1
Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of November 15, 1997
relating to
$50,000,000 in Aggregate Principal Amount
of 7% Convertible Subordinated Notes due 2004
by and between
Atrix Laboratories, Inc.
and
NationsBanc Montgomery Securities, Inc.
and
SBC Warburg Dillon Read Inc.
as Initial Purchasers
2
This Registration Rights Agreement (the "Agreement") is made and
entered into as of November 15, 1997, by and between Atrix Laboratories, Inc.,
a Delaware corporation (the "Company"), and NationsBanc Montgomery Securities,
Inc. and SBC Warburg Dillon Read Inc. (the "Initial Purchasers"), who will
purchase $50,000,000 in aggregate principal amount of 7% Convertible
Subordinated Notes due 2004 (the "Notes") of the Company (excluding up to an
additional $7,500,000 aggregate principal amount that may be purchased by the
Initial Purchasers pursuant to their over-allotment option) pursuant to the
Purchase Agreement dated November 21, 1997 (the "Purchase Agreement"), between
the Company and the Initial Purchasers. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchasers set forth in the Purchase Agreement. All defined terms used but not
defined herein shall have the meanings ascribed to them in the Indenture (as
defined herein).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
BUSINESS DAY: As defined in the Indenture.
CLOSING DATE: The date on which all the Notes are first sold by the
Company to the Initial Purchasers pursuant to the Purchase Agreement.
COMMISSION: The Securities and Exchange Commission.
COMMON STOCK: The common stock, par value $.001 per share, of the
Company.
DAMAGES PAYMENT DATE: With respect to the Notes or the Common Stock,
as applicable, each Interest Payment Date as defined in the Indenture.
EFFECTIVENESS TARGET DATE: As defined in Section 4.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Notes to (i) certain "qualified institutional buyers" (as
such term is defined in Rule 144A under the Act), (ii) to certain persons in
offshore transactions in reliance on Regulation S under the Act and (iii) to a
limited number of institutional "accredited investors" as defined in Rule
501(a)(1), (2), (3) or (7).
HOLDER: As defined in Section 2(b) hereof.
1
3
INDENTURE: The Indenture, dated as of November 15, 1997, among the
Company and State Street Bank and Trust Company of California, N.A., as trustee
(the "Trustee"), pursuant to which the Notes are to be issued, as such
Indenture is amended or supplemented from time to time in accordance with the
terms thereof.
INTEREST PAYMENT DATE: As defined in the Indenture.
LIQUIDATED DAMAGES: As defined in Section 4.
NASD: National Association of Securities Dealers, Inc.
OFFERING MEMORANDUM: The Offering Memorandum, dated November 21,
1997, and all amendments and supplements thereto, relating to the Notes.
PERSON: An individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
PRELIMINARY PROSPECTUS: As defined in Section 3(g).
PROSPECTUS: The prospectus included in the Shelf Registration
Statement, as amended or supplemented by any Prospectus Supplement with respect
to the terms of the offering of any portion of the Transfer Restricted
Securities (as defined herein) covered by the Shelf Registration Statement and
by all other amendments and supplements to the prospectus, including
post-effective amendments, and all material which may be incorporated by
reference into such prospectus.
PROSPECTUS SUPPLEMENT: As defined in Section 5(b).
RECORD HOLDER: (i) With respect to any Damages Payment Date relating
to the Notes, each Person who is registered on the books of the Registrar as
the holder of Notes on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur and (ii) with respect to
any Damages Payment Date relating to the Common Stock, each Person who is a
holder of record of such Common Stock 15 days prior to the Damages Payment
Date.
REGISTRATION EXPENSES: As defined in Section 6(a).
REQUISITE INFORMATION: As defined in Section 3(g).
SHELF REGISTRATION STATEMENT: As defined in Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section
77aaa-77bbbb), as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Note and share of Common Stock
issuable upon conversion of a Note, until each such Note or share (i) has been
effectively registered under the
2
4
Securities Act and disposed of in accordance with the registration statement
covering it, (ii) is distributed to the public pursuant to Rule 144 or (iii)
may be sold or transferred pursuant to Rule 144(k) (or any similar provisions
then in force) under the Securities Act.
UNDERWRITER: Any underwriter, placement agent, selling broker, dealer
manager, qualified independent underwriter or similar securities industry
professional.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: An offering in
which securities of the Company are sold to an Underwriter or with the
assistance of such Underwriter for reoffering to the public on a firm
commitment or best efforts basis.
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.
SECTION 3. SHELF REGISTRATION
(a) FILING OF REGISTRATION STATEMENT. The Company shall use its best
efforts to file or cause to be filed with the Commission on or prior to the
date 30 days after the Closing Date, a shelf registration statement pursuant to
Rule 415 (as may then be amended) under the Act (the "Shelf Registration
Statement") on Form S-1 or Form S-3, if the use of such form is then available
and as determined by the Company, to cover resales of Transfer Restricted
Securities by the Holders thereof. The Company shall use its best efforts to
cause such Shelf Registration Statement to be declared effective by the
Commission on or prior to the date 90 days after the Closing Date. The Company
shall use its best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended to the extent necessary to
ensure that it is available for resales of Transfer Restricted Securities for a
period ending two years from the effective date thereof or such shorter period
that will terminate when each of the Transfer Restricted Securities covered by
the Shelf Registration Statement shall cease to be a Transfer Restricted
Security (as further described in Section 5 below); provided that the Company
shall not be obligated to keep the Shelf Registration Statement effective as to
any period with respect to which the Company has received a written opinion,
which has been furnished to and is reasonably acceptable to the Initial
Purchasers, from the Company's counsel, Morrison & Foerster LLP, or other
counsel designated by the Company and reasonably acceptable to the Initial
Purchasers ("Company Counsel"), to the effect that the Transfer Restricted
Securities can be freely offered and sold in the public markets without the
continued effectiveness of the Shelf Registration Statement. The Company
further agrees to use its best efforts to prevent the happening of any event
that would cause the Shelf Registration Statement to contain any 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 or to
be not effective and usable for
3
5
resale of the Transfer Restricted Securities during the period that such Shelf
Registration Statement is required to be effective and usable.
Upon the occurrence of any event that would cause the Shelf
Registration Statement (i) to contain any 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 or (ii) to be not effective and
usable for resale of Transfer Restricted Securities during the period that such
Shelf Registration Statement is required to be effective and usable, the
Company upon knowledge of such an event, shall as promptly as practicable file
an amendment to the Shelf Registration Statement, in the case of clause (i),
correcting any such misstatement or omission, and, in the case of either clause
(i) or (ii), use its best efforts to cause such amendment to be declared
effective and such Shelf Registration Statement to become usable as soon as
practicable thereafter.
Notwithstanding anything to the contrary in this Section 3, subject to
compliance with Sections 4 and 5(b), if applicable, the Company may prohibit
offers and sales of Transfer Restricted Securities pursuant to the Shelf
Registration Statement at any time if (A) (i) it is in possession of material
non-public information, (ii) the Board of Directors of the Company determines
based on advice of counsel (which counsel shall be experienced in securities
laws matters) that such prohibition is necessary in order to avoid a
requirement to disclose such material non-public information and (iii) the
Board of Directors of the Company determines in good faith that disclosure of
such material non-public information would not be in the best interests of the
Company and its stockholders or (B) the Company has made a public announcement
relating to an acquisition or business combination transaction including the
Company and/or one or more of its subsidiaries (i) that is material to the
Company and its subsidiaries taken as a whole and (ii) the Board of Directors
of the Company determines in good faith that offers and sales of Transfer
Restricted Securities pursuant to the Shelf Registration Statement prior to the
consummation of such transaction (or such earlier date as the Board of
Directors shall determine) is not in the best interests of the Company and its
stockholders (the period during which any such prohibition of offers and sales
of Transfer Restricted Securities pursuant to the Shelf Registration Statement
is in effect pursuant to clause (A) or (B) of this subparagraph (a) is referred
to herein as a "Suspension Period"). A Suspension Period shall commence on and
include the date on which the Company provides written notice to Holders
covered by the Shelf Registration Statement that offers and sales of Transfer
Restricted Securities cannot be made thereunder in accordance with this Section
3 and shall end three Business Days after the earlier to occur of (x) the date
on which such material information is disclosed to the public or ceases to be
material or the Company is able to so comply with its disclosure obligations
and Commission requirements or (y) 45 days after written notice is provided by
the Company to the Holders of such Suspension Period. Each notice shall state
to the extent, if any, as is practicable, an estimate of the expected duration
of the Suspension Period.
(b) RESTRICTION ON SECURITIES INCLUDED IN REGISTRATION STATEMENT.
None of the Company nor any of its security holders (other than the Holders of
Transfer Restricted Securities in such capacity) shall have the right to
include any of the Company's securities in the Shelf Registration Statement.
4
6
(c) UNDERWRITTEN OFFERING. If the Holders of a majority of the
outstanding Transfer Restricted Securities so elect (with holders of Common
Stock constituting Transfer Restricted Securities being deemed to be Holders of
the aggregate principal amount of Notes converted into such Common Stock for
purposes of such calculation), an offering of Transfer Restricted Securities
pursuant to the Shelf Registration Statement may be effected in the form of an
Underwritten Offering. Such election shall be evidenced by a written notice
(the "Underwriting Notice") delivered to the Company. The Holders of the
Transfer Restricted Securities to be registered shall pay all underwriting
discounts and commissions of such Underwriters, and the Company shall be
obligated to pay all expenses described in Section 6 below.
(d) SELECTION OF UNDERWRITERS. If any of the Transfer Restricted
Securities covered by the Shelf Registration Statement are to be sold in an
Underwritten Offering, the Underwriter(s) that will administer the offering
will be selected by the Holders of a majority of the outstanding Transfer
Restricted Securities (with holders of Common Stock constituting Transfer
Restricted Securities being deemed to be Holders of the aggregate principal
amount of Notes converted into such Common Stock for purposes of such
calculation); provided, however, that such Underwriter(s) shall be reasonably
satisfactory to the Company.
(e) LOCK-UP BY HOLDER. Each Holder whose Transfer Restricted
Securities are covered by a Shelf Registration Statement filed pursuant to this
Section 3 agrees, upon the request of the Underwriter(s) in any Underwritten
Offering, not to effect any sale or distribution of securities of the Company
of the same class as the securities included in such Shelf Registration
Statement, for a period of up to 90 days beginning on the date any such
Underwritten Offering made pursuant to such Shelf Registration Statement
commences, to the extent timely notified in writing by such Underwriter(s).
(f) COMPANY LOCK-UP. The Company agrees not to effect any public or
private offer, sale or distribution of securities of the same quality and
nature as any of the Transfer Restricted Securities to be registered in an
Underwritten Offering during the 90-day period (the "Lock-up Period") beginning
on the date any such Underwritten Offering made pursuant to the Shelf
Registration Statement commences, to the extent timely notified in writing by
the Underwriter(s) (except as part of such registration, if permitted, pursuant
to registrations on Forms S-4 or S-8 or any successor form to such Forms),
unless the Underwriter(s) shall consent in writing to a shorter period of time;
provided, however, that any such agreement shall permit (A) the issuance by the
Company of any shares of Common Stock issued to employees of the Company or to
any other eligible person pursuant to any employee stock option plan, stock
ownership plan, stock bonus plan or stock compensation plan of the Company in
effect on the date of such Underwritten Offering, (B) the issuance by the
Company of Common Stock upon the conversion of securities, or the exercise of
options or warrants, outstanding at the date of such Underwritten Offering and
(C) the issuance by the Company of any such securities in connection with an
acquisition transaction if the transferee or transferees of such securities
agree during the Lock-up Period not to publicly offer or sell such securities
without the prior written consent of such Underwriter(s). Notwithstanding the
foregoing, the Company shall be entitled to suspend its lock-up obligations
under this Section 3(f) for a period not to exceed 180 days after the delivery
of the Underwriting
5
7
Notice in order to complete an issuance and sale of securities provided that it
notifies the sender of the Underwriting Notice within five Business Days of its
receipt of such notice.
(g) HOLDER INFORMATION. Each Holder shall furnish to the Company such
information regarding the distribution of its Transfer Restricted Securities as
is required by law to be disclosed in the applicable Shelf Registration
Statement (the "Requisite Information") prior to effecting any sale pursuant to
such Shelf Registration Statement.
The Company shall file, within five Business Days after the
receipt of notice from any Holder which includes the Requisite Information with
respect to such Holder, a Prospectus supplement pursuant to Rule 424 or
otherwise amend or supplement such Shelf Registration Statement to include in
the Prospectus the Requisite Information as to such Holder (and the Transfer
Restricted Securities held by such Holder), and the Company shall provide such
Holder within two Business Days after receipt of such notice with a copy of
such prospectus as so amended or supplemented containing the Requisite
Information in order to permit such Holder to comply with the Prospectus
delivery requirements of the Securities Act in a timely manner with respect to
any proposed disposition of such Holder's Transfer Restricted Securities.
If any such Shelf Registration Statement refers to any Holder
by name or otherwise as the Holder of any securities of the Company, then such
Holder shall have the right to require, in the event that such reference to
such Holder by name or otherwise is not required by the Securities Act or any
similar Federal statute then in force, the deletion of the reference to such
Holder in such Shelf Registration Statement at any time subsequent to the time
that such reference ceases to be required. It shall be the sole responsibility
of each Holder to notify the Company of any change of address or change of
ownership of the Transfer Restricted Securities of such Holder.
6
8
SECTION 4. LIQUIDATED DAMAGES
If (i) the Shelf Registration Statement is not filed with the
Commission on or prior to 30 days after the Closing Date, (ii) the Shelf
Registration Statement has not been declared effective by the Commission within
90 days after the Closing Date (the "Effectiveness Target Date"), or (iii) the
Shelf Registration Statement is filed and declared effective but shall
thereafter cease to be effective (without being succeeded immediately by an
additional registration statement filed and declared effective) or useable for
resale for a period of time (including any Suspension Period) which shall
exceed 60 days in the aggregate in any one-year period (each such event
referred to in clauses (i) through (iii), a "Registration Default"), the
Company will pay liquidated damages ("Liquidated Damages") to each Holder of
Transfer Restricted Securities. The amount of Liquidated Damages payable
during any period during which a Registration Default shall have occurred and
be continuing is that amount which is equal to one-quarter of one percent (25
basis points) per annum per $1,000 principal amount of Notes or, if applicable,
on an equivalent basis per share of Common Stock (subject to adjustment in the
event of stock splits, stock recombinations, stock dividends and the like)
constituting Transfer Restricted Securities for each subsequent 90-day period
until the applicable registration statement is filed and the applicable
registration statement is declared effective, or the Shelf Registration
Statement again becomes effective or usable, as the case may be, up to a
maximum amount of Liquidated Damages of one and one- quarter of one percent
(125 basis points) per annum per $1,000 principal amount of Notes or, if
applicable, on an equivalent basis per share of Common Stock (subject to
adjustment as set forth above) of Common Stock constituting Transfer Restricted
Securities. The Company shall notify the Trustee and the Initial Purchasers
within one Business Day after each and every date on which a Registration
Default occurs. All accrued Liquidated Damages shall be paid to Record Holders
by wire transfer of immediately available funds or by federal funds check by
the Company on each Damages Payment Date. Following the cure of all
Registration Defaults, Liquidated Damages will cease to accrue with respect to
such Registration Default.
All of the Company's obligations to pay Liquidated Damages set forth
in the preceding paragraph which 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.
The parties hereto agree that the Liquidated Damages provided in this
Section 4 constitute a reasonable estimate of the damages that will be incurred
by Holders of Transfer Restricted Securities by reason of the failure of the
Shelf Registration Statement to be filed, declared effective or to remain
effective, as the case may be.
SECTION 5. REGISTRATION PROCEDURES
In connection with the Shelf Registration Statement, the Company will
use its best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution or disposition thereof, and pursuant thereto
the Company will as expeditiously as possible after the Closing Date:
7
9
(a) FILING OF REGISTRATION STATEMENT. On or prior to the date 30 days
after the Closing Date, prepare and file with the Commission a Shelf
Registration Statement relating to the registration on Form S-1 or Form S-3, if
the use of such form is then available and as determined by the Company, for
the sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof and shall include all financial
statements required to be included or incorporated by reference therein. The
Company shall take such action as may be reasonably necessary so that (i) the
Shelf Registration Statement and any amendment thereto and any Prospectus
forming a part thereof and any supplement or amendment thereto complies in all
material respects with the Act and the rules and regulations thereunder, (ii)
the Shelf Registration and any amendment thereto (in either case, other than
with respect to the Requisite Information furnished to the Company by or on
behalf of any Holder specifically for inclusion therein) does not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make any statement therein not misleading
and (iii) the Prospectus and any supplement thereto (in either case, other than
with respect to such Requisite Information from Holders), does not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
The Company agrees to cooperate and assist in any filings required to
be made with the NASD and use its best efforts to cause such Shelf Registration
Statement to become effective and approved by such governmental agencies or
authorities as may be necessary to enable the Holders to consummate the
disposition of such Transfer Restricted Securities; provided, however, that
before filing a Shelf Registration Statement or any Prospectus, or any
amendments or supplements thereto, the Company will furnish to the Initial
Purchasers, each Holder who may have requested the same in writing and the
Underwriter(s), if any, copies of all such documents proposed to be filed
(except that the Company shall not be required to furnish any exhibits to such
documents, including those incorporated by reference, unless so requested by an
Initial Purchaser, Holder or Underwriter in writing), and the Company will not
file any Shelf Registration Statement or amendment thereto or any Prospectus or
any supplement thereto to which (i) the Initial Purchasers or the
Underwriter(s), if any, shall reasonably object or (ii) if there are no
Underwriters, the Initial Purchasers or the Holders of a majority of the
outstanding Transfer Restricted Securities shall reasonably object (with
holders of Common Stock constituting Transfer Restricted Securities being
deemed to be Holders of the aggregate principal amount of Notes converted into
such Common Stock for purposes of such calculation), in each such case within
five Business Days after the receipt thereof. An Initial Purchaser, Holder or
Underwriter, if any, shall be deemed to have reasonably objected to such filing
if the Shelf Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading which misstatement or
omission is specifically identified to the Company in writing within such five
Business Days.
(b) AMENDMENTS AND SUPPLEMENTS. The Company agrees to prepare and
file with the Commission such amendments and post-effective amendments to the
Shelf Registration Statement as may be necessary to keep the Shelf Registration
Statement effective for the applicable period set forth in Section 3(a) hereof;
cause the Prospectus to be supplemented by any required supplement thereto (a
"Prospectus Supplement"), and as so supplemented to be filed
8
10
pursuant to Rule 424 under the Act, and to comply with the applicable
provisions of Rules 424 and 430A under the Act in a timely manner; and comply
with the provisions of the Act with respect to the disposition of all
securities covered by such Shelf Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Shelf Registration Statement, Prospectus or
Prospectus Supplement.
(c) FILINGS OF AMENDMENTS OR SUPPLEMENTS IN CONNECTION WITH
UNDERWRITTEN OFFERINGS. The Company agrees, if requested in writing by the
Holders of Transfer Restricted Securities, or if the Transfer Restricted
Securities are being sold in an Underwritten Offering, the Underwriter(s) of
such Underwritten Offering, promptly incorporate in the Prospectus, any
Prospectus Supplement or post-effective amendment to the Shelf Registration
Statement such information as the Underwriters and/or the Holders of Transfer
Restricted Securities agree should be included therein relating to the plan of
distribution of the Transfer Restricted Securities, including, without
limitation, information with respect to the principal amount of Notes and/or
the number of shares of Common Stock being sold to such Underwriter(s), the
purchase price being paid therefor and any other terms with respect to the
offering of the Transfer Restricted Securities to be sold in such offering; and
make all required filings of such Prospectus, Prospectus Supplement or post-
effective amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus, Prospectus Supplement or
post-effective amendment.
(d) COMMUNICATION WITH SECURITIES EXCHANGE COMMISSION; NOTICE OF
REQUIREMENT TO AMEND OR SUPPLEMENT. The Company agrees to advise the Initial
Purchasers, the Underwriter(s), if any, and Holders promptly and, if requested
by such Persons, to confirm such advice in writing, (i) when the Prospectus or
any Prospectus Supplement or post-effective amendment to the Shelf Registration
Statement has been filed, and, with respect to the Shelf Registration Statement
or any post-effective amendment thereto, when the same has become effective,
(ii) of any request by the Commission for amendments to the Shelf Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating thereto, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Shelf Registration Statement
under the Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, (iv) if at any time the representations and warranties of the Company
contemplated by paragraph (m)(i) below cease to be true and correct, and (v) of
the existence of any fact and the happening of any event 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 not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Shelf Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or
Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time.
9
11
(e) COPIES OF DOCUMENTS INCORPORATED BY REFERENCE IN REGISTRATION
STATEMENT. The Company agrees promptly following the filing of any document
that is to be incorporated by reference into the Shelf Registration Statement
or the Prospectus subsequent to the initial filing of the Shelf Registration
Statement, provide copies of such document (excluding exhibits, unless
specifically requested by an Initial Purchaser or a Holder in writing) to the
Initial Purchasers and each Holder who may have requested the same in writing.
(f) COPIES OF REGISTRATION STATEMENT AND AMENDMENTS. The Company
agrees to furnish to each Initial Purchaser, each Holder and each of the
Underwriter(s), if any, without charge, at least one copy of the Shelf
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein
and all exhibits (excluding exhibits to documents incorporated by reference
therein unless requested by such Initial Purchaser, Holder or Underwriter).
(g) COPIES OF PRELIMINARY PROSPECTUS AND PROSPECTUS. The Company
agrees to deliver to each Initial Purchaser, each Holder and each of the
Underwriter(s), if any, without charge, as many copies of any Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto as such
Persons may reasonably request; the Company consents to the use of any
Preliminary Prospectus and the Prospectus and any amendments or supplements
thereto by each of the Holders and each of the Underwriter(s), if any, in
connection with the public offering and the sale of the Transfer Restricted
Securities covered by any Preliminary Prospectus and the Prospectus or any
amendments or supplements thereto; provided that such use of the Preliminary
Prospectus or Prospectus, and such offering and sale, conform to the Plan of
Distribution set forth in the Prospectus and comply with all applicable laws.
(h) BLUE SKY. The Company agrees, prior to any public offering of
Transfer Restricted Securities, to cooperate with the Holders, the
Underwriter(s), if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the Holders or
Underwriter(s) may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdiction of the Transfer
Restricted Securities covered by the Shelf Registration Statement; provided,
however, that the Company shall not be required (i) to register or qualify as a
foreign corporation where it is not now so qualified or (ii) to take any action
that would subject it to the service of process in suits, other than as to
matters and transactions relating to the Shelf Registration Statement, in any
jurisdiction where it is not now so subject.
(i) CERTIFICATES. The Company agrees to cooperate with the Holders
and the Underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be sold
pursuant to the Shelf Registration Statement (which shall not bear any
restrictive legends); and enable such Transfer Restricted Securities to be in
such denominations 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.
(j) OTHER GOVERNMENT AGENCIES. The Company agrees to use its best
efforts to cause the Transfer Restricted Securities covered by the Shelf
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to
10
12
enable the seller or sellers thereof or the Underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Securities, subject to
the proviso contained in clause (h) above.
(k) POST-EFFECTIVE AMENDMENTS OR SUPPLEMENTS TO UPDATE. The Company
agrees to, if any fact or event contemplated by clause (d)(ii) through (v)
above shall exist or have occurred, prepare a post-effective amendment or
supplement to the Shelf Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein not misleading.
(l) CUSIP. The Company agrees to provide a CUSIP number for all Notes
to be sold pursuant to the Shelf Registration Statement not later than the
effective date of the Shelf Registration Statement and provide the Trustee
under the Indenture and/or the transfer agent for the Common Stock with
certificates for the Transfer Restricted Securities to be sold pursuant to the
Shelf Registration Statement which are in a form eligible for deposit with the
Depository Trust Company.
(m) UNDERTAKINGS IN CONNECTION WITH UNDERWRITTEN OFFERINGS. The
Company agrees to, in connection with an Underwritten Registration, enter into
such agreements (including an underwriting agreement) and take all such other
actions in connection therewith as may reasonably be required in order to
expedite or facilitate the disposition of the Transfer Restricted Securities
pursuant to the Shelf Registration Agreement (including without limitation,
providing in a supplement or post-effective amendment, such information
relating to the plan of distribution as is necessary, information concerning
the purchase price being paid and such other information with respect to the
offering as may be reasonably requested), and (i) make such representations and
warranties to the Underwriter(s), in form, substance and scope as they may
reasonably request and as are customarily made by issuers to Underwriters in
Underwritten Offerings and covering matters, including, but not limited to,
those set forth in the Purchase Agreement; (ii) obtain opinions of counsel for
the Company and updates thereof in customary form and covering matters
reasonably requested by the Underwriter(s) of the type customarily covered in
legal opinions to Underwriters in connection with Underwritten Offerings
addressed to the Underwriter requesting the same and covering the matters as
may be reasonably requested by such Holders and Underwriters; (iii) obtain
"cold comfort" letters and updates thereof from the Company's independent
certified public accountants addressed to the Underwriters requesting the same,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to Underwriters in connection
with Underwritten Offerings; (iv) set forth in full or incorporate by reference
in the underwriting agreement the indemnification provisions and procedures of
Section 7 hereof with respect to all parties to be indemnified pursuant to said
Section; and (v) deliver such documents and certificates as may be reasonably
requested by the Underwriter(s) of such Underwritten Offering to evidence
compliance with clause (i) above and with any customary conditions contained in
the underwriting agreement entered into by the Company pursuant to this clause
(m). The above shall be done at or prior to each closing under such
underwriting agreement, as and to the extent required thereunder.
11
13
(n) DUE DILIGENCE. The Company agrees to make available at reasonable
times and in a reasonable manner to a representative of the Holders of the
Transfer Restricted Securities, any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement and any attorney or
accountant retained by such Holders or any of the Underwriters representatives
of the Company for discussion of customary due diligence matters, and furnish
such documents and financial and other information as may be reasonably
requested by such persons in connection with such due diligence; provided,
however, that such representatives, attorneys or accountants shall agree to
keep confidential (which agreement shall be confirmed in writing in advance to
the Company if the Company shall so request) all information, records or
documents made available to such persons which are not otherwise available to
the general public unless disclosure of such records, information or documents
is required by court or administrative order and to use such information
obtained pursuant to this provision only in connection with the transaction for
which such information was obtained, and not for any other purpose.
(o) COMPLIANCE WITH RULES AND REGULATIONS. The Company agrees to
otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission, and make generally available to its security
holders, as soon as practicable, in a regular filing on Form 10-Q or Form 10-K,
a consolidated earnings statement, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act, for the twelve-month period
(i) 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 (ii) 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 Shelf Registration Statement.
(p) INDENTURE. The Company agrees to the extent required by the TIA
to cause the Indenture to be qualified under the TIA, and, in connection
therewith, cooperate with the Trustee and the Holders to effect such changes to
the Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its best efforts to
cause the Trustee to execute, all documents as 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.
(q) LISTING, ETC. The Company agrees to cause all Transfer
Restricted Securities covered by the Shelf Registration Statement to be listed
on each securities exchange or quotation system on which similar securities
issued by the Company are then listed, provided that such listing shall only be
required with respect to the Notes only to the extent requested by the Holders
of a majority of the outstanding Notes or the Underwriters, if any. The
Company agrees to cause the Notes covered by the Shelf Registration Statement
to be rated with the appropriate rating agencies, if so requested by the
Holders of a majority in aggregate principal amount of such Notes then
outstanding or the Underwriters.
(r) NASD. The Company agrees to 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).
12
14
(s) AGREEMENTS OF HOLDERS. Each Holder as to which any Shelf
Registration Statement is being effected agrees prior to effecting any sale of
Transfer Restricted Securities thereunder to furnish promptly to the Company
all information required to be disclosed in order to make any Requisite
Information previously furnished to the Company by such Holder not materially
misleading or necessary to cause such Shelf Registration Statement not to omit
a material fact with respect to such Holder necessary in order to make the
statements therein not misleading.
Each Holder agrees by acquisition of such Transfer Restricted
Securities that, upon receipt of any notice from the Company of the existence
of any fact of the kind described in Section 5(d)(v) hereof (an "Amendment
Notice"), such Holder will forthwith discontinue disposition of Transfer
Restricted Securities until such Holder's receipt of (i) copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof, or
until counsel for the Company shall have determined that such disclosure is not
required due to subsequent events, (ii) notice in writing from the Company that
the use of the Prospectus may be resumed, and (iii) copies of any additional or
supplemental filings with respect to the Prospectus. In the event Company
shall give any such notice, the time period regarding the effectiveness of the
Shelf Registration Statement set forth in Section 3(a) hereof 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 5(d)(v) hereof to and including the
date when each Holder covered by such Shelf Registration Statement shall have
received the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or shall have received the Advice and any additional or
supplemental filings with respect to the Prospectus.
SECTION 6. REGISTRATION EXPENSES
(a) EXPENSES OF COMPANY. All expenses incident to the Company's
performance of or compliance with this Agreement (the "Registration Expenses")
will be borne by the Company, regardless of whether a Shelf Registration
Statement becomes effective, including without limitation:
(i) all registration and filing fees and expenses (including
filings made with the NASD);
(ii) fees and expenses of compliance with federal
securities or state blue sky laws;
(iii) expenses of printing (including, without limitation,
expenses of printing or engraving certificates for the Transfer Restricted
Securities in a form eligible for deposit with Depository Trust Company and of
printing the Prospectus and any Preliminary Prospectus), messenger and delivery
services and telephone;
(iv) fees and disbursements of counsel for the Company and
for the Holders (subject to the provisions of Section 6(b) hereof);
(v) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any special audit and
"cold comfort" letters required by or
13
15
incidental to the preparation and filing of a Shelf Registration Statement and
Prospectus and the disposition of Transfer Restricted Securities); and
(vi) fees and expenses of listing the Transfer Restricted
Securities on any securities exchange or quotation system in accordance with
Section 5(q) hereof.
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, rating
agency fees and the fees and expenses of any Person, including special experts,
retained by the Company. The Company shall not be responsible for commissions,
fees and discounts of brokers, dealers and agents. The Holders of Transfer
Restricted Securities shall bear the expense of any broker's commission or
Underwriter's discount or commission.
(b) COUNSEL TO HOLDERS. In connection with the Shelf Registration
Statement, the Company will reimburse the Holders of Transfer Restricted
Securities being registered pursuant to such Shelf Registration Statement for
the reasonable fees and disbursements of not more than one counsel ("Special
Counsel"), which shall initially be Wilson Sonsini Goodrich & Rosati,
Professional Corporation (unless and until another Special Counsel shall have
been selected by the Holders of a majority of the outstanding Transfer
Restricted Securities (with holders of Common Stock constituting Transfer
Restricted Securities being deemed to be Holders of the aggregate principal
amount of Notes converted into such Common Stock for purposes of such
calculation)).
Notwithstanding the provisions of this Section 6(b), each Holder of
Transfer Restricted Securities shall pay all Registration Expenses to the
extent required by applicable law, and if the Shelf Registration Statement is
to be effected in the form of an Underwritten Offering, the discounts and
commissions of the Underwriters.
SECTION 7. INDEMNIFICATION
(a) COMPANY INDEMNIFICATION. The Company agrees to indemnify and hold
harmless (i) each of the Initial Purchasers, (ii) each Holder, (iii) each
person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) any of the Initial Purchasers or any Holder
(any of the persons referred to in this clause (iii) being hereinafter referred
to as a "controlling person") and (iv) the respective officers, directors,
partners, employees, representatives and agents of any of the Initial
Purchasers or any Holder or any controlling person (any person referred to in
clause (i), (ii), (iii) or (iv) may hereinafter be referred to as a
"Non-Company Indemnitee"), to the fullest extent lawful, from and against any
and all losses, claims, damages, liabilities, reasonable expenses and judgments
arising out of or based on any untrue statement or alleged untrue statement of
a material fact contained in the Shelf Registration Statement, Prospectus or
Preliminary Prospectus (or any amendments or supplements thereto), including
any document incorporated by reference therein, or arising out of or based on
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, with respect to any Non-Company Indemnitee, insofar as such losses,
claims, damages, liabilities, expenses or
14
16
judgments (1) are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the
Company by such Non-Company Indemnitee expressly for use therein (which shall
include written information provided by such Non-Company Indemnitee pursuant to
Section 3(g) herein expressly for use therein), or (2) with respect to any
Preliminary Prospectus, result from the fact that such Non-Company Indemnitee
sold Transfer Restricted Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
final Prospectus, as amended or supplemented, if the Company shall have
previously furnished copies thereof to such Non-Company Indemnitee in
accordance with this Agreement and the final Prospectus, as amended or
supplemented, would have corrected such untrue statement or omission. The
indemnification in this subsection (a) shall be in addition to any liability
which the Company may have at common law or otherwise.
The Company also agrees to indemnify or contribute to losses of, as
provided in Section 7(d), any underwriters of Transfer Restricted Securities
registered under the Shelf Registration Statement, their officers and directors
and each Person, if any, who controls any such underwriter (within the meaning
of the Act) on substantially the same basis as that of the indemnification of
the Holders provided in this Section 7(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 5(m) hereof.
(b) INDEMNIFICATION PROCEDURES. In case any action shall be brought
against any Non-Company Indemnitee, based upon the Shelf Registration
Statement, Prospectus, or Preliminary Prospectus (or any amendments or
supplements thereto), and with respect to which indemnity may be sought against
the Company, such Non-Company Indemnitee shall promptly notify the Company in
writing and the Company shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses; provided, however,
that the omission so to notify the Company shall not relieve the Company from
any liability that it may have to any Non-Company Indemnitee (except to the
extent that the Company is materially prejudiced or otherwise forfeits
substantive rights or defenses by reason of such failure). Such Non-Company
Indemnitee shall have the right to employ separate counsel in any such action
and participate in the defense thereof, but the fees and expenses of counsel
shall be paid by such Non-Company Indemnitee, unless (i) the employment of such
counsel shall have been specifically authorized in writing by the Company, (ii)
the Company shall have failed to assume the defense and employ counsel or (iii)
the named parties to any such action (including any impleaded parties) include
both such Non-Company Indemnitee and the Company and it would be inappropriate
for the same counsel to represent such Non-Company Indemnitee and the Company
(in which case the Company shall not have the right to assume the defense of
such action on behalf of such Non-Company Indemnitee, it being understood,
however, that the Company shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for the Non-Company Indemnitees, which firm shall be
designated in writing by the Non-Company Indemnitees and shall be subject to
the Company's approval, not to be unreasonably withheld, and whose fees and
expenses reasonably incurred shall be reimbursed as they are incurred). The
Company shall not be liable for any settlement of any
15
17
such action effected without the written consent of the Company, which consent
shall not be unreasonably withheld or delayed, and if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Non-Company Indemnitee from and against any amounts payable pursuant to such
written consent in connection with such settlement. The Company shall not,
without the prior written consent of such Non-Company Indemnitee, effect any
settlement of any pending or threatened proceeding in respect of which such
Non-Company Indemnitee is or could have been a party and indemnity could have
been sought hereunder by such Non-Company Indemnitee, unless such settlement
includes an unconditional release of such Non-Company Indemnitee from all
liability on claims that are the subject matter of such proceeding.
(c) INDEMNIFICATION BY HOLDER. Each Holder of Transfer Restricted
Securities agrees to indemnify and hold harmless (i) the Company, (ii) each of
the Initial Purchasers, (iii) each other Holder, (iv) any person controlling
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
the Company, any of the Initial Purchasers and each other Holder and (v) the
respective officers, directors, partners, employees, representatives and agents
of each of the parties referred to in clauses (i), (ii), (iii) and (iv), to the
same extent as the foregoing indemnity from the Company to each of the
Non-Company Indemnitees, but only with respect to claims and actions based on
information relating to such Holder that was furnished in writing by such
Holder expressly for use in the Shelf Registration Statement or Prospectus (or
any amendment or supplement thereto) (including without limitation the
information provided in writing by a Holder pursuant to Section 3(g) expressly
for use therein). In no event shall the liability of any Holder hereunder be
greater in amount than the dollar amount of the net proceeds received by such
Holder upon the sale of the Transfer Restricted Securities giving rise to such
indemnification obligation.
(d) CONTRIBUTION. If the indemnification provided for in this Section
7 is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to herein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and judgments in such proportion as is appropriate
to reflect the relative fault of the indemnifying party, on the one hand, and
the indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party, on the one hand, and the indemnified
party, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party, on the one hand, or the
indemnified party, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The indemnity and contribution obligations of each
indemnifying party set forth herein shall be in addition to any liability or
obligation such indemnifying party may otherwise have to any Indemnified Party,
including under this Agreement.
The Company, each of the Initial Purchasers and each Holder of
Transfer Restricted Securities agree that it would not be just and equitable if
contribution pursuant to this Section
16
18
7(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The losses, claims, damages,
liabilities or judgments of an indemnified party referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim prior to the indemnifying party's assumption of the defense thereof or
subsequent thereto to the extent permitted by the second sentence of Section
7(b) hereof. Notwithstanding the provisions of this Section 7, none of the
Holders shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the total amount of net process received by such Holder
with respect to the sale of Transfer Restricted 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute pursuant to this Section 7(d) are several in proportion to the
respective principal amount of Notes held by each of the Holders hereunder and
not joint.
SECTION 8. RULE 144A AND RULE 144
(a) RULE 144A. The Company hereby agrees with each Holder, for so
long as any of the Notes or shares of Common Stock that are Transfer Restricted
Securities remain outstanding and during any such period in which the Company
is not subject to Section 13 or 15(d) of the Exchange Act, to make available to
any Initial Purchaser or any beneficial owner of the Notes or shares of such
Common Stock in connection with any sale thereof and any prospective purchaser
of such Notes or Common Stock from such Initial Purchaser or beneficial owner,
the information required by Rule 144A(d)(4) under the Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A.
(b) RULE 144. The Company shall use commercially reasonable efforts
to file the reports required to be filed by it under the Act and the Exchange
Act in a timely manner and covenants that it will take such further action as
any Holder of Transfer Restricted Securities may reasonably request, all to the
extent required from time to time, to enable such Holder to sell securities
without registration under the Act within the limitation of the exemptions
provided by Rule 144.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Offering 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, (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of
such underwriting arrangements and (c) furnishes the Company the Requisite
Information and agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration
17
19
Statement and any person controlling the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act to the extent contemplated by
Section 7(c).
SECTION 10. 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 accordance with Section 3(c) herein.
In any such Underwritten Offering, the Underwriter(s) that will administer the
offering will be selected by the Holders of the Transfer Restricted Securities
included in such offering in the manner specified in Section 3(c); provided,
however, that such Underwriters must be reasonably satisfactory to the Company.
SECTION 11. MISCELLANEOUS
(a) REMEDIES. Each party 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 agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders of
Transfer Restricted Securities in this Agreement or otherwise conflicts with
the provisions hereof. The rights granted to the Holders of Transfer
Restricted Securities hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any other agreements in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of a majority of the outstanding Transfer Restricted Securities (with holders
of Common Stock constituting Transfer Restricted Securities being deemed to be
Holders of the aggregate principal amount of Notes converted into such Common
Stock for purposes of such calculation). Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders of Transfer Restricted Securities whose
securities are being sold pursuant to such Shelf Registration Statement and
that does not directly or indirectly affect the rights of other Holders of
Transfer Restricted Securities shall be valid only with the written consent of
Holders of at least 66-2/3% of the Transfer Restricted Securities being sold,
in each case calculated in accordance with the provisions of Section 3(c).
(d) 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), telecopier, or air courier
guaranteeing overnight delivery:
18
20
(i) if to a Holder of Transfer Restricted Securities, at the
address set forth on the records of the Registrar under the Indenture, with a
copy to the Registrar; and
(ii) if to the Company or an Initial Purchaser, initially
at its address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
receipt acknowledged, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, 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 of Transfer Restricted Securities unless
and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder; and provided further that nothing herein shall be
deemed to permit any assignment, transfer or any disposition of Transfer
Restricted Securities in violation of the terms of the Purchase Agreement. If
any transferee of any Holder shall acquire Transfer Restricted Securities, in
any manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement and by
taking and holding such Transfer Restricted Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES THEREOF.
(i) 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.
19
21
(j) ENTIRE AGREEMENT. This Agreement together with all documents
and agreements referred to herein 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 securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
[Remainder of page intentionally left blank]
20
22
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
ATRIX LABORATORIES, INC.
By: /s/ John E. Urheim
------------------------------
Name: John E. Urheim
Title: Chief Executive Officer
NATIONSBANC MONTGOMERY SECURITIES, INC.
SBC WARBURG DILLON READ INC.
BY: NATIONSBANC MONTGOMERY SECURITIES, INC.
By: /s/ JEFFREY B. CHILD
--------------------------------------------
Name: Jeffrey B. Child
Title: Managing Director
21