Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
among
GREATBATCH, INC.,
as Issuer,
and
EACH OF THE INITIAL PURCHASERS PARTY HERETO,
as Initial Purchasers
Dated as of March 28, 2007
REGISTRATION RIGHTS AGREEMENT dated as of March 28, 2007 among
Greatbatch, Inc., a Delaware corporation (the "Company"), and each of the
initial purchasers of the Company's Debentures (as defined below) named in
Exhibit A hereto (each, an "Initial Purchaser" and collectively, the "Initial
Purchasers") pursuant to an Exchange and Purchase Agreement (each, an "Exchange
Agreement" and collectively, the "Exchange Agreements"), between the Company and
each of the Initial Purchasers. In order to induce each Initial Purchaser to
enter into an Exchange Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit
as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Debentures (as
defined herein) and the beneficial owners from time to time of the Underlying
Common Stock (as defined herein) issued upon conversion of the Debentures (each
of the foregoing a "Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Exchange
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Additional Debentures" has the meaning set forth in Section 8(b)
hereof.
"Affiliate" means with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Common Stock" means the shares of common stock, $0.001 par value per
share, of the Company, together with the Rights evidenced by such common stock
to the extent provided in the Stockholder Rights Agreement dated as of March 18,
2002 between the Company and Mellon Investor Services LLC, and any other shares
of common stock as may constitute "Common Stock" for purposes of the Indenture,
including the Underlying Common Stock.
"Conversion Price" has the meaning assigned such term in the Indenture.
"Damages Accrual Period" has the meaning set forth in Section 2(e)
hereof.
"Damages Payment Date" means each June 15 and December 15.
"Debentures" means the 2 1/4% Convertible Subordinated Debentures Due
2013 of the Company to be issued under the Indenture.
"Deferral Notice" has the meaning set forth in Section 3(h) hereof.
"Deferral Period" has the meaning set forth in Section 3(h) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" means the period commencing on the date hereof
and ending on the date that all Registrable Securities have ceased to be
Registrable Securities.
"Event" has the meaning set forth in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Exchange Agreement" has the meaning set forth in the preamble hereof.
"Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Holder" has the meaning set forth in the second paragraph of this
Agreement.
"Indenture" means the Indenture, dated as of March 28, 2007, between
the Company and Manufacturers and Traders Trust Company, as trustee, pursuant to
which the Debentures are being issued.
"Initial Purchasers" has the meaning set forth in the preamble hereof.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Issue Date" means the first date of original issuance of the
Debentures.
"Liquidated Damages Amount" has the meaning set forth in Section 2(e)
hereof.
"Material Event" has the meaning set forth in Section 3(h) hereof.
"New Holder" has the meaning set forth in Section 8(b) hereof.
"Notice Holder" means, on any date, any Holder that has delivered a
Selling Securityholder Questionnaire to the Company on or prior to such date.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Record Holder" means with respect to any Damages Payment Date relating
to any Debentures or Underlying Common Stock as to which any Liquidated Damages
Amount has accrued, the registered holder of such Debenture or Underlying Common
Stock on the June 1 immediately preceding a Damages Payment Date occurring on a
June 15, and on the December 1 immediately preceding a Damages Payment Date
occurring on a December 15.
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"Registrable Securities" means the Debentures until such Debentures
have been converted into or exchanged for the Underlying Common Stock and, at
all times subsequent to any such conversion, the Underlying Common Stock and any
securities into or for which such Underlying Common Stock has been converted or
exchanged, and any security issued with respect thereto upon any stock dividend,
split or similar event until, in the case of any such security, (A) the earliest
of (i) its effective registration under the Securities Act and resale in
accordance with the Registration Statement covering it, (ii) expiration of the
holding period that would be applicable thereto under Rule 144(k) or (iii) its
sale to the public pursuant to Rule 144 (or any similar provision then in force,
but not Rule 144A) under the Securities Act, and (B) as a result of the event or
circumstance described in any of the foregoing clauses (i) through (iii), the
legend with respect to transfer restrictions required under the Indenture is
removed or removable in accordance with the terms of the Indenture or such
legend, as the case may be.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"Restricted Securities" means "Restricted Securities" as defined in
Rule 144.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Selling Securityholder Questionnaire" means a written notice delivered
to the Company containing substantially the information called for by the
Selling Securityholder Questionnaire attached as Exhibit B hereto.
"Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof.
"Special Counsel" means counsel as shall be specified by the Holders of
a majority of the Registrable Securities, but which may, with the written
consent of the Initial Purchasers (which shall not be unreasonably withheld), be
a nationally recognized law firm experienced in securities law matters
designated by the Company, the reasonable fees and expenses of which will be
paid by the Company pursuant to Section 5 hereof. For purposes of determining
the holders of a majority of the Registrable Securities in this definition,
Holders of Debentures shall be deemed to be the Holders of the number of shares
of Underlying Common Stock into which such Debentures are or would be
convertible as of the date the consent is requested.
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"Subsequent Shelf Registration Statement" has the meaning set forth in
Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means Manufacturers and Traders Trust Company, the Trustee
under the Indenture.
"Underlying Common Stock" means the Common Stock into which the
Debentures are convertible or issued upon any such conversion.
Section 2. Shelf Registration.
(a) The Company shall prepare and file or cause to be prepared
and filed with the SEC, as soon as practicable but in any event by the date (the
"Filing Deadline Date") thirty (30) days after the Issue Date, a Registration
Statement for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act (a "Shelf Registration Statement") registering
the resale from time to time by Holders thereof of all of the Registrable
Securities (the "Initial Shelf Registration Statement"). The Initial Shelf
Registration Statement shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by such
Holders in accordance with the methods of distribution elected by the Holders
and set forth in the Initial Shelf Registration Statement. The Company shall use
its reasonable best efforts to cause the Initial Shelf Registration Statement to
be declared effective under the Securities Act as promptly as is practicable but
in any event by the date (the "Effectiveness Deadline Date") that is ninety (90)
days after the Issue Date, and to keep the Initial Shelf Registration Statement
(or any Subsequent Shelf Registration Statement) continuously effective under
the Securities Act until the expiration of the Effectiveness Period. At the time
the Initial Shelf Registration Statement is declared effective, each Holder that
became a Notice Holder on or prior to the date ten (10) Business Days prior to
such time of effectiveness shall be named as a selling securityholder in the
Initial Shelf Registration Statement and the related Prospectus in such a manner
as to permit such Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law. None of the Company's security
holders (other than the Holders of Registrable Securities) shall have the right
to include any of the Company's securities in the Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because all Registrable Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within thirty (30) days of
such cessation of effectiveness amend the Shelf Registration Statement in a
manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
reasonable best efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is practicable after such filing and to keep
such Registration Statement (or subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.
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(c) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement,
if required by the Securities Act or as necessary to name a Notice Holder as a
selling securityholder pursuant to Section (d) below.
(d) Each Holder agrees that if such Holder wishes to sell
Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(d) and Section
3(h) of this Agreement. Following the date that the Initial Shelf Registration
Statement is declared effective, each Holder wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus
agrees to deliver a Selling Securityholder Questionnaire to the Company at least
ten (10) Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration Statement. From and after the date the
Initial Shelf Registration Statement is declared effective, the Company shall,
as promptly as practicable after the date a Selling Securityholder Questionnaire
is delivered pursuant to Section 8(c), and in any event upon the later of (x)
fifteen (15) Business Days after such date or (y) fifteen (15) Business Days
after the expiration of any Deferral Period in effect when the Selling
Securityholder Questionnaire is delivered or put into effect within fifteen (15)
Business Days of such delivery date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or prepare and, if
required by applicable law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference or
file any other required document so that the Holder delivering such Selling
Securityholder Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the Company shall file a
post-effective amendment to the Shelf Registration Statement, use its reasonable
best efforts to cause such post-effective amendment to be declared effective
under the Securities Act as promptly as is practicable, but in any event by the
date (the "Amendment Effectiveness Deadline Date") that is forty-five (45) days
after the date such post-effective amendment is required by this clause to be
filed;
(ii) provide such Holder copies of any documents filed
pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable after
the effectiveness under the Securities Act of any post-effective amendment filed
pursuant to Section 2(d)(i);
provided, that if such Selling Securityholder Questionnaire is delivered during
a Deferral Period, the Company shall so inform the Holder delivering such
Selling Securityholder Questionnaire and shall take the actions set forth in
clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in
accordance with Section 3(h). Notwithstanding anything contained herein to the
contrary, (i) the Company shall be under no obligation to name any Holder that
is not a Notice Holder as a selling securityholder in any Registration Statement
or related Prospectus and (ii) the Amendment Effectiveness Deadline Date shall
be extended by up to ten (10) Business Days from the expiration of a Deferral
Period (and the Company shall incur no obligation to pay Liquidated Damages
during such extension) if such Deferral Period shall be in effect on the
Amendment Effectiveness Deadline Date.
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(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if, other than as permitted
hereunder,
(i) the Initial Shelf Registration Statement has not been
filed on or prior to the Filing Deadline Date,
(ii) the Initial Shelf Registration Statement has not been
declared effective under the Securities Act on or prior to the Effectiveness
Deadline Date,
(iii) the Company has failed to perform its obligations set
forth in Section 2(d)(i) within the time period required therein,
(iv) any post-effective amendment to a Shelf Registration
Statement filed pursuant to Section 2(d)(i) has not become effective under the
Securities Act on or prior to the Amendment Effectiveness Deadline Date,
(v) the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period pursuant to
Section 3(h) hereof, or
(vi) the number of Deferral Periods in any period exceeds
the number permitted in respect of such period pursuant to Section 3(h) hereof.
Each event described in any of the foregoing clauses (i) through (vi) is
individually referred to herein as an "Event." For purposes of this Agreement,
each Event set forth above shall begin and end on the dates set forth in the
table set forth below:
Type of
Event by
Clause Beginning Date Ending Date
- --------- ------------------------------------------------------- ------------------------------------------------------
(i) Filing Deadline Date the date the Initial Shelf Registration Statement is
filed
(ii) Effectiveness Deadline Date the date the Initial Shelf Registration Statement
becomes effective under the Securities Act
(iii) the date by which the Company is required to perform the date the Company performs its obligations set
its obligations under Section 2(d)(i) forth in Section 2(d)(i)
(iv) the Amendment Effectiveness Deadline Date the date the applicable post-effective amendment to a
Shelf Registration Statement becomes effective under
the Securities Act
(v) the date on which the aggregate duration of Deferral termination of the Deferral Period that caused the
Periods in any period exceeds the number of days limit on the aggregate duration of Deferral Periods
permitted by Section 3(h) to be exceeded
(vi) the date of commencement of a Deferral Period that termination of the Deferral Period that caused the
causes the number of Deferral Periods to exceed the number of Deferral Periods to exceed the number
number permitted by Section 3(h) permitted by Section 3(h)
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For purposes of this Agreement, Events shall begin on the dates set forth in the
table above and shall continue until the ending dates set forth in the table
above.
Commencing on (and including) any date that an Event has begun and
ending on (but excluding) the next date on which there are no Events that have
occurred and are continuing (a "Damages Accrual Period"), the Company shall pay,
as liquidated damages and not as a penalty, to Record Holders of Registrable
Securities an amount (the "Liquidated Damages Amount") accruing, for each day in
the Damages Accrual Period, in respect of any Debenture, at a rate per annum
equal to 0.5% of the aggregate principal amount of such Debenture; provided that
in the case of a Damages Accrual Period that is in effect solely as a result of
an Event of the type described in clause (iii) or (iv) of the preceding
paragraph, such Liquidated Damages Amount shall be paid only to the Holders (as
set forth in the succeeding paragraph) that have delivered Selling
Securityholder Questionnaires that caused the Company to incur the obligations
set forth in Section 2(d) the non-performance of which is the basis of such
Event. Notwithstanding the foregoing, no Liquidated Damages Amount shall accrue
as to any Debentures from and after the earlier of (x) the date such Debenture
is no longer a Registrable Security and (y) expiration of the Effectiveness
Period. The rate of accrual of the Liquidated Damages Amount with respect to any
period shall not exceed the rate provided for in this paragraph notwithstanding
the occurrence of multiple concurrent Events.
The Liquidated Damages Amount shall accrue from the first day of the
applicable Damages Accrual Period, and shall be payable on each Damages Payment
Date during the Damage Accrual Period (and on the Damages Payment Date next
succeeding the end of the Damages Accrual Period if the Damage Accrual Period
does not end on a Damages Payment Date) to the Record Holders of the Debentures
entitled thereto. The Trustee shall be entitled, on behalf of registered holders
of Debentures, to seek any available remedy for the enforcement of this
Agreement, including for the payment of such Liquidated Damages Amount.
Notwithstanding the foregoing, the parties agree that the sole damages payable
for a violation of the terms of this Agreement with respect to which liquidated
damages are expressly provided shall be such liquidated damages. Nothing shall
preclude any Holder from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
If a Holder has converted some or all of its Debentures into Common
Stock, the Holder will not be entitled to receive the Liquidated Damages Amount
with respect to such Common Stock or the principal amount of the Debentures that
have been so converted. In addition, in no event will the Liquidated Damages
Amount be payable in connection with an Event relating to a failure to register
the Common Stock deliverable upon conversion of the Debentures. For the
avoidance of doubt, if the Company fails to register both the Debentures and the
Common Stock deliverable upon conversion of the Debentures, then the Liquidated
Damages Amount will be payable solely in connection with the Event relating to
the failure to register the Debentures.
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All of the Company's obligations set forth in this Section 2(e) to pay
any Liquidated Damages Amount that is outstanding with respect to any Debenture
at the time such security ceases to be a Registrable Security shall survive
until such time as all such obligations with respect to such Debenture have been
satisfied in full (notwithstanding termination of this Agreement pursuant to
Section 8(k)).
The parties hereto agree that the liquidated damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Debentures by reason of the failure of the Shelf
Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
Section 3. Registration Procedures. In connection with the registration
obligations of the Company under Section 2 hereof, during the Effectiveness
Period, the Company shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders thereof in
accordance with the intended method or methods of distribution thereof, and use
its reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided that before filing
any Registration Statement or Prospectus or any amendments or supplements
thereto with the SEC, furnish to each Initial Purchaser and the Special Counsel
of such offering, if any, copies of all such documents proposed to be filed at
least three (3) Business Days prior to the filing of such Registration Statement
or amendment thereto or Prospectus or supplement thereto.
(b) Subject to Section 3(h), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously effective for the
applicable period specified in Section 2(a); cause the related Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use its reasonable best efforts to comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement during the
Effectiveness Period in accordance with the intended methods of disposition by
the sellers thereof set forth in such Registration Statement as so amended or
such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders,
the Initial Purchasers and the Special Counsel (if any) (i) when any Prospectus,
prospectus supplement, Registration Statement or post-effective amendment to a
Registration Statement has been filed with the SEC and, with respect to a
Registration Statement or any post-effective amendment, when the same has been
declared effective, (ii) of any request, following the effectiveness of the
Initial Shelf Registration Statement under the Securities Act, by the SEC or any
other federal or state governmental authority for amendments or supplements to
any Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of any Registration
Statement or the initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (v) of the occurrence of, but
not the nature of or details concerning, a Material Event and (vi) of the
determination by the Company that a post-effective amendment to a Registration
Statement will be filed with the SEC, which notice may, at the discretion of the
Company (or as required pursuant to Section 3(h)), state that it constitutes a
Deferral Notice, in which event the provisions of Section 3(h) shall apply.
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(d) Use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in either case at the earliest possible moment,
and provide immediate notice to each Notice Holder and the Initial Purchasers of
the withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder, the
Special Counsel (if any) and the Initial Purchasers, upon request and without
charge, at least one (1) conformed copy of the Registration Statement and any
amendment thereto, including exhibits and all documents incorporated or deemed
to be incorporated therein by reference.
(f) During the Effectiveness Period, deliver to each Notice
Holder, the Special Counsel, if any, and the Initial Purchasers, in connection
with any sale of Registrable Securities pursuant to a Registration Statement,
without charge, as many copies of the Prospectus or Prospectuses relating to
such Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such Notice Holder may reasonably request;
and the Company hereby consents (except during such periods that a Deferral
Notice is outstanding and has not been revoked) to the use of such Prospectus or
each amendment or supplement thereto by each Notice Holder in connection with
any offering and sale of the Registrable Securities covered by such Prospectus
or any amendment or supplement thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use its reasonable best efforts to
register or qualify or cooperate with the Notice Holders and the Special Counsel
(if any) in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any Notice Holder reasonably requests in writing (which request
may be included in the Selling Securityholder Questionnaire); prior to any
public offering of the Registrable Securities pursuant to the Shelf Registration
Statement, use its reasonable best efforts to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period
in connection with such Notice Holder's offer and sale of Registrable Securities
pursuant to such registration or qualification (or exemption therefrom) and do
any and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities in the manner
set forth in the relevant Registration Statement and the related Prospectus;
provided that the Company will not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Agreement or (ii) take any action
that would subject it to general service of process in suits or to taxation in
any such jurisdiction where it is not then so subject.
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(h) Upon (A) the issuance by the SEC of a stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact (a "Material Event") as a result of which any Registration Statement
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any Prospectus shall contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence
of any pending corporate development that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus:
(i) in the case of clause (B) above, subject to the next
sentence, as promptly as practicable prepare and file, if necessary pursuant to
applicable law, a post-effective amendment to such Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document that would be incorporated by
reference into such Registration Statement and Prospectus so that such
Registration Statement does not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and such Prospectus does not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to a Registration
Statement, subject to the next sentence, use its reasonable best efforts to
cause it to be declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders, and the Special
Counsel, if any, that the availability of the Shelf Registration Statement is
suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice, each
Notice Holder agrees not to sell any Registrable Securities pursuant to the
Registration Statement until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in clause (i) above, or until it
is advised in writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are incorporated
or deemed incorporated by reference in such Prospectus.
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The Company will use its reasonable best efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the sole judgment of the Company, public disclosure of such Material Event would
not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as practicable
thereafter and (z) in the case of clause (C) above, as soon as in the reasonable
discretion of the Company, such suspension is no longer appropriate. The Company
shall be entitled to exercise its right under this Section 3(h) to suspend the
availability of the Shelf Registration Statement or any Prospectus, without
incurring or accruing any obligation to pay liquidated damages pursuant to
Section 2(e), no more than one (1) time in any three month period or three (3)
times in any twelve month period, and any such period during which the
availability of the Registration Statement and any Prospectus is suspended (the
"Deferral Period") shall, without incurring any obligation to pay liquidated
damages pursuant to Section 2(e), not exceed 30 days; provided that the
aggregate duration of any Deferral Periods shall not exceed 30 days in any three
month period (or 60 days in any three month period in the event of a Material
Event pursuant to which the Company has delivered a second notice as permitted
below) or 90 days in any twelve (12) month period; provided that in the case of
a Material Event relating to an acquisition or a probable acquisition or
financing, recapitalization, business combination or other similar transaction,
the Company may, without incurring any obligation to pay liquidated damages
pursuant to Section 2(e), deliver to Notice Holders a second notice to the
effect set forth above, which shall have the effect of extending the Deferral
Period by up to an additional 30 days, or such shorter period of time as is
specified in such second notice.
(i) If requested in writing in connection with a disposition of
Registrable Securities pursuant to a Registration Statement, make reasonably
available for inspection during normal business hours by a representative for
the Notice Holders of such Registrable Securities, any broker-dealers, attorneys
and accountants retained by such Notice Holders, and any attorneys or other
agents retained by a broker-dealer engaged by such Notice Holders, all relevant
financial and other records and pertinent corporate documents and properties of
the Company and its subsidiaries, and cause the appropriate officers, directors
and employees of the Company and its subsidiaries to make reasonably available
for inspection during normal business hours on reasonable notice all relevant
information reasonably requested by such representative for the Notice Holders,
or any such broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar "due diligence"
examinations; provided that such persons shall first agree in writing with the
Company that any non-public information shall be kept confidential by such
persons and shall be used solely for the purposes of exercising rights under
this Agreement, unless (i) disclosure of such information is required by court
or administrative order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law (including
any disclosure requirements pursuant to federal securities laws in connection
with the filing of any Registration Statement or the use of any prospectus
referred to in this Agreement), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure to
safeguard by any such person or (iv) such information becomes available to any
such person from a source other than the Company and such source is not bound by
a confidentiality agreement, and provided further that the foregoing inspection
and information gathering shall, to the greatest extent possible, be coordinated
on behalf of all the Notice Holders and the other parties entitled thereto by
Special Counsel. Any person legally compelled to disclose any such confidential
information made available for inspection shall provide the Company with prompt
prior written notice of such requirement so that the Company may seek a
protective order or other appropriate remedy.
11
(j) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) for a 12-month period commencing on the first day of the
first fiscal quarter of the Company commencing after the effective date of a
Registration Statement, which statements shall be made available no later than
45 days after the end of the 12-month period or 90 days if the 12-month period
coincides with the fiscal year of the Company.
(k) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a Registration Statement, which certificates
shall not bear any restrictive legends, and cause such Registrable Securities to
be in such denominations as are permitted by the Indenture and registered in
such names as such Notice Holder may request in writing at least one (1)
Business Day prior to any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities covered
by each Registration Statement not later than the effective date of such
Registration Statement and provide the Trustee and the transfer agent for the
Common Stock with printed certificates for the Registrable Securities that are
in a form eligible for deposit with The Depository Trust Company.
(m) Cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc.
(n) Upon (i) the filing of the Initial Shelf Registration
Statement and (ii) the effectiveness of the Initial Shelf Registration
Statement, announce the same, in each case by release to Reuters Economic
Services and Bloomberg Business News.
Section 4. Holder's Obligations. Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder shall be entitled to sell any of such
Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with a
Selling Securityholder Questionnaire as required pursuant to Section 2(d) hereof
(including the information required to be included in such Selling
Securityholder Questionnaire) and the information set forth in the next
sentence. Each Notice Holder agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
Any sale of any Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating to such
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or its plan of distribution necessary to
make the statements in such Prospectus, in the light of the circumstances under
which they were made, not misleading.
12
Section 5. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any
Registration Statement is declared effective. Such fees and expenses shall
include, without limitation, all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of the Special Counsel in
connection with Blue Sky qualifications of the Registrable Securities under the
laws of such jurisdictions as Notice Holders of a majority of the Registrable
Securities being sold pursuant to a Registration Statement may designate),
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company), duplication expenses relating to copies of any
Registration Statement or Prospectus delivered to any Holders hereunder, fees
and disbursements of counsel for the Company in connection with the Shelf
Registration Statement, reasonable fees and disbursements of the Trustee and its
counsel and of the registrar and transfer agent for the Common Stock and any
Securities Act liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay the internal expenses of the
Company (including, without limitation, all salaries and expenses of officers
and employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing by the
Company of the Registrable Securities on any securities exchange on which
similar securities of the Company are then listed and the fees and expenses of
any person, including special experts, retained by the Company. Notwithstanding
the provisions of this Section 5, each seller of Registrable Securities shall
pay selling expenses, including any underwriting discount and commissions, and
all registration expenses to the extent required by applicable law.
Section 6. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Notice Holder, each person, if any, who
controls any Notice Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and each affiliate of any
Notice Holder within the meaning of Rule 405 under the Securities Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), caused by 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 or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Holder furnished to the Company in writing by such Holder
expressly for use therein; provided that the indemnification contained in this
paragraph shall not inure to the benefit of any Holder (or to the benefit of any
person controlling such Holder) on account of any such losses, claims, damages
or liabilities caused by any untrue statement or alleged untrue statement or
omission or alleged omission made in any preliminary prospectus provided in each
case the Company has performed its obligations under Section 3(f) hereof if
either (A)(x) such Holder failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale by such Holder
to the person asserting the claim from which such losses, claims, damages or
liabilities arise and (y) the Prospectus would have corrected such untrue
statement or alleged untrue statement or such omission or alleged omission, or
(B)(x) such untrue statement or alleged untrue statement, omission or alleged
omission is corrected in an amendment or supplement to the Prospectus and (y)
having previously been furnished by or on behalf of the Company with copies of
the Prospectus as so amended or supplemented, such Holder thereafter fails to
deliver such Prospectus as so amended or supplemented, with or prior to the
delivery of written confirmation of the sale of a Registrable Security to the
person asserting the claim from which such losses, claims, damages or
liabilities arise.
13
(b) Indemnification by Holders. Each Holder agrees severally and
not jointly to indemnify and hold harmless the Company and its directors, its
officers and each person, if any, who controls the Company (within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act) or
any other Holder, to the same extent as the foregoing indemnity from the Company
to such Holder, but only with reference to information relating to such Holder
furnished to the Company in writing by such Holder expressly for use in such
Registration Statement or Prospectus or amendment or supplement thereto. In no
event shall the liability of any Holder hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities pursuant to the Registration Statement giving rise to
such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section 6(a) or 6(b) hereof, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by, in the case of parties indemnified pursuant to Section
6(a), the Holders of a majority (with Holders of Debentures deemed to be the
Holders, for purposes of determining such majority, of the number of shares of
Underlying Common Stock into which such Debentures are or would be convertible
as of the date on which such designation is made) of the Registrable Securities
covered by the Registration Statement held by Holders that are indemnified
parties pursuant to Section 6(a) and, in the case of parties indemnified
pursuant to Section 6(b), the Company. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
14
(d) Contribution. To the extent that the indemnification provided
for in Section 6(a) or 6(b) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Holders on the one hand and the
Company 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 Holders or by the Company, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Holders' respective obligations to contribute
pursuant to this Section 6 are several in proportion to the respective number of
Registrable Securities they have sold pursuant to a Registration Statement, and
not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
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 or liabilities 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.
Notwithstanding this Section 6, no indemnifying party that is a selling Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities sold by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such indemnifying party 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.
15
(e) The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
an indemnified party at law or in equity, hereunder, under an Exchange Agreement
or otherwise.
(f) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder, any person controlling any Holder or any affiliate of any Holder
or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) the sale of any Registrable Securities by any
Holder.
Section 7. Information Requirements. The Company covenants that, if at
any time before the end of the Effectiveness Period the Company is not subject
to the reporting requirements of the Exchange Act, it will cooperate with any
Holder and take such further reasonable action as any Holder may reasonably
request in writing (including, without limitation, making such reasonable
representations as any such Holder may reasonably request), all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 and Rule 144A under the Securities Act and
customarily taken in connection with sales pursuant to such exemptions. Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements,
unless such a statement has been included in the Company's most recent report
filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities (other than the Common Stock) under any
section of the Exchange Act.
Section 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement, enter
into, any agreement with respect to its securities that conflicts with the
rights granted to the Holders in this Agreement. The Company represents and
warrants that the rights granted to the Holders hereunder do not in any way
conflict with the rights granted to the holders of the Company's securities
under any other agreements.
16
(b) 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 then outstanding Underlying Common Stock constituting
Registrable Securities (with Holders of Debentures deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Debentures are or would be convertible as of the
date on which such consent is requested). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders whose securities are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement; provided that the provisions of this
sentence may not be amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence. Notwithstanding the
foregoing two sentences, this Agreement may be amended by written agreement
signed by the Company and the Initial Purchasers, without the consent of the
Holders of Registrable Securities, to cure any ambiguity or to correct or
supplement any provision contained herein that may be defective or inconsistent
with any other provision contained herein, or to make such other provisions in
regard to matters or questions arising under this Agreement that shall not
adversely affect the interests of the Holders of Registrable Securities. In
addition, notwithstanding the foregoing three sentences, if after the date
hereof the Company enters into one or more Exchange Agreements to issue
additional Debentures (the "Additional Debentures") to such persons or entities
as the Company in its sole discretion may determine (each, a "New Holder"), such
New Holder may, upon execution and delivery by such New Holder of a signature
page to an Exchange Agreement and this Agreement, become an Initial Purchaser
under this Agreement, entitled to the benefits and subject to the obligations
hereunder, and this Agreement may be amended without the consent of any Holder
solely to make such New Holder an Initial Purchaser party hereto and to update
Exhibit A hereto to reflect the name of and principal amount of Debentures
issued to such New Holder. Each Holder of Registrable Securities outstanding at
the time of any such amendment, modification, supplement, waiver or consent or
thereafter shall be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 8(b), whether or not any
notice, writing or marking indicating such amendment, modification, supplement,
waiver or consent appears on the Registrable Securities or is delivered to such
Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(i) if to Holder, at the most current
address given by such Holder to the
Company in a Selling Securityholder
Questionnaire or any amendment thereto;
(ii) if to the Company, to:
Greatbatch, Inc.
9645 Wehrle Drive
Clarence, New York 14031
Attention: Corporate Secretary
Telecopy No.: (716) 759-5672
and
17
Hodgson Russ LLP
The Guaranty Building
140 Pearl Street, Suite 100
Buffalo, New York 14202-4040
Attention: John J. Zak
Ronald J. Battaglia Jr.
Telecopy No.: (716) 849-0349
(iii) if to an Initial Purchaser, to the
address set forth in its respective
Exchange Agreement, or to such other
address as such person may have
furnished to the other persons
identified in this Section 8(c) in
writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as such
term is defined in Rule 405 under the Securities Act) (other than the Initial
Purchasers or subsequent Holders if such subsequent Holders are deemed to be
such affiliates solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any
Registrable Securities from the Initial Purchasers shall be deemed, for purposes
of this Agreement, to be an assignee of the Initial Purchasers. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties and shall inure to the benefit of and be binding upon each
Holder of any Registrable Securities, provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Indenture. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
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 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.
(i) Severability. If any term provision, covenant or restriction
of this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
18
(j) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Exchange Agreements, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights. No
party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement. In no event will such methods of
distribution take the form of an underwritten offering of the Registrable
Securities without the prior agreement of the Company.
(k) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Section 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GREATBATCH, INC.
By:______________________________________
Name:
Title:
Confirmed and accepted as of the date first above written:
[EACH INITIAL PURCHASER]
By:________________________________________
Name:
Title:
EXHIBIT A
List of Initial Purchasers
EXHIBIT B
Selling Securityholder Questionnaire
The undersigned beneficial owner (the "Selling Securityholder") of the
2 1/4% Convertible Subordinated Debentures due 2013 (the "Debentures") of
Greatbatch, Inc. (the "Company") or the shares of the Company's Common Stock,
par value $0.001 per share, issuable upon conversion of the Debentures (the
"Common Stock" and, together with the Debentures, the "Registrable Securities")
hereby gives notice to the Company of its intention to sell or otherwise dispose
of Registrable Securities beneficially owned by it and listed below in Item 3
(unless otherwise specified under Item 3) pursuant to the Shelf Registration
Statement. The undersigned, by signing and returning this Selling Securityholder
Questionnaire, understands that it will be bound by the terms and conditions of
this Selling Securityholder Questionnaire and the Registration Rights Agreement,
dated as of March 28, 2007, among the Company and the Initial Purchasers party
thereto.
Pursuant to the Registration Rights Agreement, the undersigned has
agreed to indemnify and hold harmless the Company's directors, the Company's
officers and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), from and against certain losses
arising in connection with statements concerning the undersigned made in the
Shelf Registration Statement or the related prospectus in reliance upon the
information provided in this Selling Securityholder Questionnaire. The
undersigned hereby acknowledges its obligations under the Registration Rights
Agreement to indemnify and hold harmless certain persons set forth therein.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
(1) (a) Full Legal Name of Selling Securityholder:
_________________________________________
(b) Full Legal Name of Registered Holder
(if not the same as (a) above) through
which Registrable Securities listed in
(3) below are held:
________________________________________
(c) Full Legal Name of DTC Participant (if
applicable and if not the same as (b)
above) through which Registrable
Securities listed in (3) below are
held:
_______________________________________
(2) Address for Notices to Selling Securityholder:
______________________________________________
Telephone (including area code):______________
Fax (including area code):____________________
Contact Person:_______________________________
(3) Beneficial Ownership of Registrable Securities:
______________________________________________
(a) Type and Principal Amount/Number of Registrable
Securities beneficially owned:
__________________________________________
(b) CUSIP No(s). of such Registrable Securities
beneficially owned:
__________________________________________
(4) Beneficial Ownership of Other Securities of the
Company Owned by the Selling Securityholder:
Except as set forth below in this Item (4), the
undersigned is not the beneficial or registered owner
of any securities of the Company other than the
Registrable Securities listed above in Item (3).
(a) Type and Amount of Other Securities beneficially
owned by the Selling Securityholder:
_________________________________________
(b) CUSIP No(s). of such Other Securities beneficially
owned:
_________________________________________
(5) Relationship with the Company:
Except as set forth below, neither the undersigned nor
any of its affiliates, officers, directors or
principal equity holders (5% or more) has held any
position or office or has had any other material
relationship with the Company (or its predecessors or
affiliates) during the past three years.
State any exceptions here:_________________________
(6) Is the Selling Securityholder a registered broker
-dealer?
Yes |_|
No |_|
If "Yes", please answer subsection (a) and subsection
(b):
(a) Did the Selling Securityholder acquire the
Registrable Securities as compensation for
underwriting/broker-dealer activities to the
Company?
2
Yes |_|
No |_|
(b) If you answered "No" to question 6(a), please
explain your reason for acquiring the
Registrable Securities:
____________________________________________
____________________________________________
(7) Is the Selling Securityholder an affiliate of a
registered broker-dealer?
Yes |_|
No |_|
If "Yes", please identify the registered
broker-dealer(s), describe the nature of the
affiliation(s) and answer subsection (a) and
subsection (b):
________________________________________________
(a) Did the Selling Securityholder purchase the
Registrable Securities in the ordinary course of
business (if no, please explain)?
Yes |_|
No |_|
Explain:___________________
(b) Did the Selling Securityholder have an agreement
or understanding, directly or indirectly, with
any person to distribute the Registrable
Securities at the same time the Registrable
Securities were originally purchased (if yes,
please explain)?
Yes |_|
No |_|
Explain:___________________
(8) Is the Selling Securityholder a non-public entity?
Yes |_|
No |_|
If "Yes", please answer subsection (a):
(a) Identify the natural person or persons that have
voting or investment control over the
Registrable Securities that the non-public
entity owns:
________________________________________
3
(9) Plan of Distribution:
Except as set forth below, the undersigned Selling
Securityholder (including its donees and pledgees)
intends to distribute the Registrable Securities
listed above in Item (3) pursuant to the Shelf
Registration Statement only as follows (if at all):
Such Registrable Securities may be sold from time to
time directly by the undersigned Selling
Securityholder or, alternatively, in accordance with
the Registration Rights Agreement, through
underwriters, broker-dealers or agents. If the
Registrable Securities are sold through underwriters
or broker-dealers, the Selling Securityholders will
be responsible for underwriting discounts or
commissions or agent commissions. Such Registrable
Securities may be sold in one or more transactions at
fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be
effected in transactions (which may involve cross or
block transactions) (i) on any national securities
exchange or quotation service on which the
Registrable Securities may be listed or quoted at the
time of sale, (ii) in the over-the-counter market,
(iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter
market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities
or otherwise, the undersigned Selling Securityholder
may enter into hedging transactions with
broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of
hedging positions they assume. The undersigned
Selling Securityholder may also sell Registrable
Securities short and deliver Registrable Securities
to close out short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn
may sell such securities.
State any exceptions here:_________________________
Note: In no event will such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
The undersigned Selling Securityholder acknowledges that it understands
its obligations to comply with the provisions of the Securities Exchange Act of
1934, as amended, and the rules thereunder relating to stock manipulation,
particularly Regulation M thereunder (or any successor rules or regulations), in
connection with any offering of Registrable Securities pursuant to the Shelf
Registration Agreement. The undersigned agrees that neither it nor any person
acting on its behalf will engage in any transaction in violation of such
provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
as set forth herein. Pursuant to the Registration Rights Agreement, the Company
has agreed under certain circumstances to indemnify the Selling Securityholder
against certain liabilities.
In the event the undersigned transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company other than pursuant to the Shelf
Registration Statement, the undersigned agrees to notify the transferee(s) at
the time of the transfer of its rights and obligations under this Selling
Securityholder Questionnaire and the Registration Rights Agreement.
4
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law or by the
staff of the Commission for inclusion in the Shelf Registration Statement, the
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
at anytime while the Shelf Registration Statement remains effective. All notices
hereunder and pursuant to the Registration Rights Agreement shall be made in
writing, by hand-delivery, first-class mail, or air courier guaranteeing
overnight delivery to the address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items (1) through (9) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Shelf Registration Statement and the related prospectus.
Once this Selling Securityholder Questionnaire is executed by the
undersigned and received by the Company, the terms of this Selling
Securityholder Questionnaire, and the representations, warranties and agreements
contained herein, shall be binding on, shall inure to the benefit of and shall
be enforceable by the respective successors, heirs, personal representatives,
and assigns of the Company and the undersigned with respect to the Registrable
Securities beneficially owned by the undersigned and listed in Item (3) above.
This Selling Securityholder Questionnaire shall be governed in all respects by
the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Selling Securityholder Questionnaire to be executed and delivered
either in person or by its duly authorized agent.
Dated:_________________________
___________________________________
Beneficial Owner
By:________________________________
Name:______________________________
Title:_____________________________
5
PLEASE RETURN THE COMPLETED AND EXECUTED SELLING SECURITYHOLDER
QUESTIONNAIRE TO THE COMPANY AT:
GREATBATCH, INC.
9645 Wehrle Drive
Clarence, New York 14031
Tel: (716) 759-5600
Fax: (716) 759-5672
Attn: General Counsel