Exhibit 4.4
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Dated as of May 21, 2003
among
Medex, Inc.,
The Subsidiary Guarantors
from time to time party hereto,
MedVest Holdings Corporation, and
Xxxxxx Brothers Inc., on behalf of the Initial Purchasers
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Exchange and Registration Rights Agreement (this "AGREEMENT") is
made and entered into as of May 21, 2003 by and among Medex, Inc., an Ohio
corporation (the "COMPANY"), the Subsidiary Guarantors (as defined herein), the
Parent Guarantor (as defined herein) and Xxxxxx Brothers Inc. on behalf of
Wachovia Securities, Inc. and Banc One Capital Markets, Inc. (collectively, the
"INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement, dated May
14, 2003 (the "PURCHASE AGREEMENT"), by and among the Company, the Existing
Subsidiary Guarantors (as defined herein), the Parent Guarantor and the Initial
Purchasers, which provides for the sale by the Company to the Initial Purchasers
of $200,000,000 aggregate principal amount of the Company's 8 7/8 % Senior
Subordinated Notes due 2013 (the "NOTES"). The Notes are, and the Exchange Notes
(as defined herein) will be, guaranteed on a senior basis by the Subsidiary
Guarantors and the Parent Guarantor. In order to induce the Initial Purchasers
to purchase the Notes, the Company, the Existing Subsidiary Guarantors and the
Parent Guarantor have agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers set forth in Section 7 of the Purchase
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ADDITIONAL SUBSIDIARY GUARANTORS: Any subsidiary of the Company that
executes a Guarantee under the Indenture after the date of this Agreement.
ADDITIONAL INTEREST: As defined in Section 5(a) hereof.
ADVICE: As defined in Section 6(e) hereof.
AGREEMENT: As defined in the preamble hereto.
BLACKOUT PERIOD: As defined in Section 5(a) hereof.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CLOSING DATE: The date of this Agreement.
COMMISSION: The U.S. Securities and Exchange Commission.
COMPANY: As defined in the preamble hereto.
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CONSUMMATE: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(ii) the maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Company to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
DAMAGES PAYMENT DATE: With respect to the Notes, each Interest Payment
Date.
EFFECTIVENESS TARGET DATE: As defined in Section 5(a) hereof.
EXCHANGE ACT: The U.S. Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Company's 8 7/8 % Senior Subordinated Notes due
2013 to be issued pursuant to the Indenture in the Exchange Offer, together with
the related Guarantees.
EXCHANGE OFFER: The registration by the Company under the Securities
Act of the Exchange Notes pursuant to a Registration Statement pursuant to which
the Company offers the Holders of all outstanding Transfer Restricted Securities
the opportunity to exchange all such outstanding Transfer Restricted Securities
held by such Holders for Exchange Notes in an aggregate principal amount equal
to the aggregate principal amount of the Transfer Restricted Securities validly
tendered and not withdrawn in such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer.
EXISTING SUBSIDIARY GUARANTORS: The various Subsidiary Guarantors
signatory to the Indenture as of the date hereof.
GUARANTEES: Guarantees by the Subsidiary Guarantors and the Parent
Guarantor of the Company's obligations under the Notes, the Exchange Notes and
the Indenture.
HOLDER: As defined in Section 2(b) hereof.
INDENTURE: The Indenture, dated as of the date hereof, among the
Company, the Existing Subsidiary Guarantors, the Parent Guarantor and The Bank
of New York, as trustee (the "TRUSTEE"), pursuant to which the Notes and the
Exchange Notes are to be issued, as such Indenture may be amended or
supplemented from time to time in accordance with the terms thereof.
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INITIAL PURCHASERS: As defined in the preamble hereto.
INTEREST PAYMENT DATE: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
NOTES: As defined in the preamble hereto.
PARENT GUARANTOR: MedVest Holdings Corporation, an Ohio corporation.
PERSON: An individual, partnership, corporation, limited liability
company, unincorporated organization, association, joint-stock company, trust,
joint venture, government or any agency or political subdivision thereof or any
other entity.
PROSPECTUS: The prospectus included in a Registration Statement as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
PURCHASE AGREEMENT: As defined in the preamble hereto.
RECORD HOLDER: With respect to any Damages Payment Date relating to
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
REGISTRATION DEFAULT: As defined in Section 5(a) hereof.
REGISTRATION STATEMENT: Any appropriate Registration Statement of the
Company relating to (a) an offering of Exchange Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
SECURITIES ACT: The U.S. Securities Act of 1933, as amended.
SHELF FILING DEADLINE: As defined in Section 4(a) hereof.
SHELF REGISTRATION PERIOD: As defined in Section 4(a) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4(a) hereof.
SUBSIDIARY GUARANTORS: The Additional Subsidiary Guarantors and the
Existing Subsidiary Guarantors.
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TIA: The U.S. Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Note or Exchange Note (including
the related Guarantees), as applicable, until the earliest to occur of (a) the
date on which such Note is exchanged by a person other than a Broker-Dealer in
the Exchange Offer in exchange for an Exchange Note, so long as such person is
not prohibited from reselling such Exchange Notes to the public without
delivering a prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not sufficient for such purpose, (b) following the
exchange by a Broker-Dealer in the Exchange Offer of a Note for an Exchange
Note, the date on which that Exchange Note is sold to a purchaser who receives
from that Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus contained in the Exchange Offer Registration Statement, (c) the date
on which such Note has been effectively registered under the Securities Act and
disposed of in accordance with a Shelf Registration Statement and (d) the date
on which such Note is sold by the Holder pursuant to Rule 144 under the
Securities Act or is saleable pursuant to Rule 144(k) under the Securities Act.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed
to be a holder of Transfer Restricted Securities (each, a "HOLDER") whenever
such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with) the Company, the Subsidiary Guarantors and
the Parent Guarantor shall (i) use their reasonable best efforts to cause to be
filed with the Commission as soon as practicable after the Closing Date, but in
no event later than 270 days after the Closing Date, a Registration Statement
under the Securities Act relating to the Exchange Notes and the Exchange Offer,
(ii) use their reasonable best efforts to cause the Registration Statement to be
declared effective as promptly as possible, (iii) upon the effectiveness of such
Registration Statement, commence the Exchange Offer, (iv) in connection with the
foregoing, file (A) all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement to become
effective, (B) if applicable, a post-effective amendment to such Registration
Statement pursuant to Rule 430A under the Securities Act and (C) cause all
necessary filings in connection with the registration and qualification of the
Exchange Notes to be made
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under the blue sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer and (v) use their best efforts to Consummate
the Exchange Offer prior to 360 days after the Closing Date.
(b) The Company, the Subsidiary Guarantors and the Parent Guarantor
shall use their reasonable best efforts to cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange Offer open
for a period of not less than the minimum period required under applicable U.S.
federal and state securities laws to Consummate the Exchange Offer; PROVIDED,
HOWEVER, that in no event shall such period be less than 20 business days. No
securities other than the Exchange Notes and the Guarantees shall be included in
the Exchange Offer Registration Statement.
(c) The Company, the Subsidiary Guarantors and the Parent Guarantor
shall indicate in a "Plan of Distribution" section of the Prospectus contained
in the Exchange Offer Registration Statement that any Broker-Dealer who holds
Notes that are Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities
(other than Transfer Restricted Securities acquired directly from the Company),
may exchange such Notes pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the
Exchange Notes received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such resales by Broker-Dealers that the Commission
may require in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Notes held by any such Broker-Dealer except to the extent required by the
Commission.
The Company, the Subsidiary Guarantors and the Parent Guarantor shall
use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Section 6(c) below to the extent necessary to ensure that it is
available for resales of Exchange Notes acquired by Broker-Dealers for their own
accounts as a result of market-making activities or other trading activities,
and to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least 90 days after the
Consummation of the Exchange Offer.
The Company, the Subsidiary Guarantors and the Parent Guarantor shall
provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 90-day period in
order to facilitate such resales.
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SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Company, the Subsidiary
Guarantors and the Parent Guarantor are not required to file an Exchange Offer
Registration Statement or cannot Consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable U.S. law or Commission policy
(after the procedures set forth in Section 6(a) below have been complied with)
or (ii) any Holder of Transfer Restricted Securities shall notify the Company
prior to the 20th day following the Consummation of the Exchange Offer that such
Holder (A) is prohibited by applicable U.S. law or Commission policy from
participating in the Exchange Offer, (B) may not resell the Exchange Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
is a Broker-Dealer and holds Notes acquired directly from the Company or one of
its affiliates, then the Company, the Subsidiary Guarantors and the Parent
Guarantor shall:
(x) use their respective reasonable best efforts to cause to be
filed a Registration Statement pursuant to Rule 415 under the Securities
Act, which may be an amendment to the Exchange Offer Registration Statement
if permitted by the rules and regulations of the Commission (in either
event, the "SHELF REGISTRATION STATEMENT") on or prior to the earliest to
occur of (1) the 30th day after the date on which the Company and Parent
Guarantor determine that they are not required to file the Exchange Offer
Registration Statement, or permitted to Consummate the Exchange Offer and
(2) the 30th day after the date on which the Company receives notice from a
Holder of Transfer Restricted Securities as contemplated by clause (ii) of
paragraph (a) above (such earliest date being the "SHELF FILING DEADLINE"),
which Shelf Registration Statement shall provide for resales of all
Transfer Restricted Securities by the Holders which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) use their respective reasonable best efforts to cause such
Shelf Registration Statement to be declared effective by the Commission on
or before the 90th day after the Shelf Filing Deadline.
Subject to Section 5(b), the Company, the Subsidiary Guarantors and the Parent
Guarantor shall use their reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Notes or Exchange Notes
by the Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period ending on the earlier of
two years following the Closing Date or such shorter period that will terminate
when all Notes or Exchange Notes covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement (such period being
the "SHELF REGISTRATION PERIOD").
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(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
THE SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein. No Holder of Transfer Restricted Securities shall be entitled to
Additional Interest pursuant to Section 5 hereof unless and until such Holder
shall have used its reasonable best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
SECTION 5. ADDITIONAL INTEREST
(a) If (i) any of the Registration Statements required by this
Agreement are not filed with the Commission on or prior to the date specified
for such filing in Sections 3(a) and 4(a), as applicable, (ii) any of such
required Registration Statements have not been declared effective by the
Commission on or prior to the date specified for such effectiveness in Section
4(a), if applicable, (iii) the Exchange Offer has not been Consummated within
360 days, or longer, if required by federal securities laws, after the Closing
Date or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable in connection with resales of Transfer Restricted Securities without
being succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective (except as permitted in paragraph (b); such period of time during
which any such Registration Statement is not effective or any such Registration
Statement or the related Prospectus is not usable being referred to as a
"BLACKOUT PERIOD") (each such event referred to in clauses (i) through (iv), a
"REGISTRATION DEFAULT"), the Company, the Subsidiary Guarantors and the Parent
Guarantor, jointly and severally, agree to pay additional interest ("ADDITIONAL
INTEREST") to each Holder of Transfer Restricted Securities adversely affected
by such Registration Default, in an amount equal to $.05 per week per $1,000
principal amount of Transfer Restricted Securities held by such Holder with
respect to the first 90-day period immediately following the occurrence of such
Registration Default. The amount of Additional Interest shall increase by an
additional $.05 per week per $1,000 principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period (or portion thereof)
until all Registration Defaults have been cured, up to a maximum amount of
Additional Interest of $.50 per week per $1,000 principal amount of Transfer
Restricted Securities. All accrued Additional Interest shall be paid to Record
Holders by the Company, the Subsidiary Guarantors and the Parent Guarantor in
the same manner as interest is paid under the Notes. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Additional Interest with respect to such Transfer Restricted
Securities will cease.
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(b) A Registration Default referred to in Section 5(a)(iv) shall be
deemed not to have occurred and be continuing in relation to a Registration
Statement or the related Prospectus if (i) the Blackout Period has occurred
solely as a result of (x) the filing of a post-effective amendment to such Shelf
Registration Statement to incorporate annual audited financial information with
respect to the Company where such post-effective amendment is not yet effective
and needs to be declared effective to permit Holders to use the related
Prospectus or (y) the occurrence of other material events with respect to the
Company that would need to be described in such Registration Statement or the
related Prospectus and (ii) in the case of clause (y), the Company is proceeding
promptly and in good faith to amend or supplement (including by way of filing
documents under the Exchange Act which are incorporated by reference into the
Registration Statement) such Registration Statement and the related Prospectus
to describe such events; PROVIDED, HOWEVER, that in any case if such Blackout
Period occurs for a continuous period in excess of 30 days, a Registration
Default shall be deemed to have occurred on the 31st day of such Blackout Period
and Additional Interest shall be payable in accordance with the above paragraph
from the day such Registration Default occurs until such Registration Default is
cured or until the Company is no longer required pursuant to this Agreement to
keep such Registration Statement effective or such Registration Statement or the
related Prospectus usable; PROVIDED, FURTHER, that in no event shall the total
of all Blackout Periods exceed 45 days in the aggregate of any 12-month period.
All payment obligations of the Company, the Subsidiary Guarantors and
the Parent Guarantor set forth in this section that are outstanding with respect
to any Transfer Restricted Security at the time such security ceases to be a
Transfer Restricted Security shall survive until such time as all such payment
obligations with respect to such security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company, the Subsidiary Guarantors and the Parent Guarantor
shall comply with all of the provisions of Section 6(c) below, shall use their
reasonable best efforts to effect such exchange to permit the sale of Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and shall comply with all of the following
provisions:
(i) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company, prior
to the Consummation thereof, a written representation to the Company, the
Subsidiary Guarantors and the Parent Guarantor (which may be contained in
the letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an affiliate of the Company,
the Subsidiary Guarantors or the Parent Guarantor, (B) it is not engaged
in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a
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distribution of the Exchange Notes to be issued in the Exchange Offer and
(C) it is acquiring the Exchange Notes in its ordinary course of business.
In addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's, the Subsidiary Guarantors' and the
Parent Guarantor's preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in EXXON CAPITAL HOLDINGS CORPORATION (available May 13, 1988)
and XXXXXX XXXXXXX AND CO., INC. (available June 5, 1991), as interpreted
in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters, and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale transaction
should be covered by an effective Registration Statement containing the
selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Exchange Notes obtained
by such Holder in exchange for Notes acquired by such Holder directly from
the Company.
(ii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company, the Subsidiary Guarantors and the
Parent Guarantor shall state to the Commission that the Company, the
Subsidiary Guarantors and the Parent Guarantor are registering the Exchange
Offer in reliance on the position of the Commission enunciated in EXXON
CAPITAL HOLDINGS CORPORATION (available May 13, 1988) and XXXXXX XXXXXXX
AND CO., INC. (available June 5, 1991) and shall represent to the
Commission that neither the Company nor any Subsidiary Guarantor nor the
Parent Guarantor has entered into any arrangement or understanding with any
Person to distribute the Exchange Notes to be received in the Exchange
Offer and that, to the best of the Company's and each Subsidiary
Guarantors' and the Parent Guarantor's information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in its
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Exchange Notes
received in the Exchange Offer; and
(iii) shall issue, upon the request of any Holder of Notes
covered by the Exchange Offer, Exchange Notes, having an aggregate
principal amount equal to the aggregate principal amount of Notes
surrendered to the Company by such Holder in exchange therefor; such
Exchange Notes to be registered in the name of such Holder or in the name
of the purchaser(s) of such Exchange Notes, as the case may be; in return,
the Notes held by such Holder shall be surrendered to the Company for
cancellation.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Company, the Subsidiary Guarantors, and the Parent
Guarantor shall comply with all the provisions of Section 6(c) below and shall
use their
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reasonable 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 thereof, and pursuant thereto the Company, the
Subsidiary Guarantors, and the Parent Guarantor will as expeditiously as
possible prepare and file with the Commission a Registration Statement relating
to the registration on any appropriate form under the Securities Act, which form
shall be available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof.
(c) GENERAL PROVISIONS. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Notes and Exchange Notes by Broker-Dealers), the Company, the Subsidiary
Guarantors and the Parent Guarantor shall:
(i) use their reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Securities Act or any
regulation thereunder, financial statements of any Subsidiary Guarantor or
the Parent Guarantor) for the period specified in Sections 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that would cause
any such Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company, the Subsidiary Guarantors and the
Parent Guarantor shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B), use
their reasonable best efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable
thereafter. Notwithstanding the foregoing, the Company, the Subsidiary
Guarantors and the Parent Guarantor may allow the Shelf Registration
Statement to cease to become effective and usable if (x) the board of
directors of the Company determines in good faith that it is in the best
interests of the Company not to disclose the existence of or facts
surrounding any proposed or pending material corporate transaction
involving the Company or the Subsidiary Guarantors or the Parent Guarantor,
and the Company notifies the Holders within two business days after such
board of directors makes such determination or (y) the Prospectus contained
in the Shelf Registration Statement contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements made therein, in the light of the circumstances under which
they were made, not misleading; PROVIDED that the two-year period referred
to in Section 4(a) hereof during which the Shelf Registration Statement is
required to be effective and usable shall be extended by the number of days
during which such Registration Statement was not effective or
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usable pursuant to the foregoing provisions; and PROVIDED FURTHER that
Additional Interest shall accrue on the Notes as provided in Section 5
hereof;
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Sections 3 or 4 hereof, as applicable; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Securities Act,
and to comply fully with the applicable provisions of Rules 424 under the
Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) cooperate with the selling Holders of Transfer
Restricted Securities and the underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends;
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 made by such underwriter(s);
(iv) use their reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities;
(v) if any fact or event contemplated by clause (d)(i)(D)
below shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements made therein, in the light of the circumstances under which they
were made, not misleading;
(vi) provide a CUSIP, CINS or ISIN number, as applicable,
for all Transfer Restricted Securities not later than the effective date of
the Registration Statement and provide the Trustee under the Indenture with
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with the depositary;
(vii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any
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underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD;
(viii) otherwise use their reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to their security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158 (which
need not be audited) for the twelve-month period (A) commencing at the end
of any fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering or (B) if not
sold to underwriters in such an offering, beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of
the Registration Statement;
(ix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement required
by this Agreement, and, in connection therewith, cooperate with the Trustee
and the Holders of Notes and Exchange Notes 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 their reasonable
best efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents required
to be filed with the Commission to enable such Indenture to be so qualified
in a timely manner; and
(x) provide promptly to any Holder upon such Holder's
written request each document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act, to the
extent such documents are not otherwise filed with the Commission and
available to the public free of cost.
(d) ADDITIONAL PROVISIONS APPLICABLE TO SHELF REGISTRATION
STATEMENTS. In connection with each Shelf Registration Statement, during the
Shelf Registration Period, the Company, the Subsidiary Guarantors and the Parent
Guarantor shall:
(i) advise the underwriter(s), if any, and selling Holders
of Transfer Restricted Securities promptly and, if requested by such
Persons, to confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to the Shelf Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Shelf Registration Statement or amendments
or supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement under the Securities Act,
of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any
jurisdiction or of the initiation of any proceeding for any of the
preceding purposes and (D) of the existence of any fact or the happening of
any event that requires the making of any additions to or changes in the
Shelf
13
Registration Statement or the Prospectus in order that the Shelf
Registration Statement and the Prospectus do not contain an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made therein, in the light of the circumstances under
which they were made, not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Shelf Registration
Statement, or any U.S. state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities under U.S. state
securities or blue sky laws, the Company, the Subsidiary Guarantors and the
Parent Guarantor shall use their reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(ii) if requested in writing, furnish to each of the selling
Holders of Transfer Restricted Securities and each of the underwriter(s),
if any, before filing with the Commission, copies of any Shelf Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Shelf Registration Statement or Prospectus
(including all documents incorporated by reference after the initial filing
of such Shelf Registration Statement), which documents will be subject to
the review of such Holders and underwriter(s), if any, for a period of five
business days, and the Company, the Subsidiary Guarantors and the Parent
Guarantor will not file any such Shelf Registration Statement or Prospectus
or any amendment or supplement to any such Shelf Registration Statement or
Prospectus (including all such documents incorporated by reference) to
which a selling Holder of Transfer Restricted Securities covered by such
Shelf Registration Statement or the underwriter(s), if any, shall
reasonably object within five business days of receipt thereof; such
Holders and underwriter(s) shall be deemed to have reasonably objected to
such filing if such Shelf Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue
statement of a material fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or fails to comply, in any material
respect, with the applicable requirements of the Securities Act;
(iii) promptly prior to the filing of any document that is to
be incorporated by reference into a Shelf Registration Statement or
Prospectus, provide copies of such document to the selling Holders and to
the underwriter(s), if any, make the Company's, the Subsidiary Guarantors'
and the Parent Guarantor's representatives available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such selling
Holders or underwriter(s), if any, reasonably may request;
(iv) make available for inspection at reasonable times at
each of the Company's principal places of business by the selling Holders
of Transfer Restricted Securities, any underwriter participating in any
disposition pursuant to
14
such Shelf Registration Statement, and any attorney or accountant retained
by such selling Holders or any of the underwriter(s), who shall certify to
the Company, the Subsidiary Guarantors and the Parent Guarantor that they
have a current intention to sell Transfer Restricted Securities pursuant to
a Shelf Registration Statement, such relevant financial and other records,
pertinent corporate documents and properties of the Company, the Subsidiary
Guarantors and the Parent Guarantor as reasonably requested and cause the
Company's, the Subsidiary Guarantors' and the Parent Guarantor's officers,
directors and employees to respond to such inquiries as shall be reasonably
necessary, in the reasonable judgment of counsel to such Holders, to
conduct a reasonable investigation; PROVIDED, HOWEVER, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
selling Holders by one counsel designated by and on behalf of such Holders
and, PROVIDED, FURTHER, that each such party shall be required to maintain
in confidence and not disclose to any other Person any information or
records reasonably designated by the Company in writing as being
confidential, until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in such Shelf
Registration Statement or otherwise), (B) such Person shall be required so
to disclose such information pursuant to a subpoena or order of any court
or other governmental agency or body having jurisdiction over the matter
(subject to the requirements of such order, and only after such Person
shall have given the Company prompt prior written notice of such
requirement) or (C) such information is required to be set forth in such
Shelf Registration Statement or the Prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment or
supplement to such Prospectus in order that such Shelf Registration
Statement, Prospectus, amendment or supplement, as the case may be, does
not contain an untrue statement of a material fact or omit to state therein
a material fact required to be stated therein or necessary to make the
statements made therein not misleading;
(v) if requested by any selling Holders of Transfer
Restricted Securities or the underwriter(s), if any, promptly incorporate
in any Shelf Registration Statement or Prospectus pursuant to a supplement
or post-effective amendment if necessary, such information as such selling
Holders and underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being
sold to such underwriter(s), the purchase price being paid therefor and any
other terms of the offering of the Transfer Restricted Securities to be
sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; PROVIDED, HOWEVER, that the Company
shall not be required to take any action pursuant to this Section 6(d)(v)
that
15
would, in the opinion of counsel for the Company reasonably satisfactory to
the Initial Purchasers, violate applicable law;
(vi) deliver to each selling Holder of Transfer Restricted
Securities and each of the underwriter(s), if any, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; the
Company, the Subsidiary Guarantors and the Parent Guarantor hereby consent
to the use of the Prospectus and any amendment or supplement thereto by
each of the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(vii) furnish to each Holder whose Transfer Restricted
Securities have been included in a Shelf Registration Statement in
connection with such exchange or sale, without charge, at least one copy of
the Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference), to the extent such documents are not otherwise filed with the
Commission and available to the public free of cost;
(viii) enter into an underwriting agreement on not more than
one occasion in the case of an offering pursuant to a Shelf Registration,
and make such representations and warranties, and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such extent
as may be reasonably requested by any Holder or Holders of Transfer
Restricted Securities who hold at least 25% in aggregate principal amount
of such class of Transfer Restricted Securities; PROVIDED that the Company,
the Subsidiary Guarantors and the Parent Guarantor shall not be required to
enter into any such agreement more than once with respect to all of the
Transfer Restricted Securities and may delay entering into such agreement
if the board of directors of each of the Company, the Subsidiary Guarantors
and the Parent Guarantor determines in good faith that it is in the best
interests of the Company, the Subsidiary Guarantors and the Parent
Guarantor not to disclose the existence of or facts surrounding any
proposed or pending material corporate transaction involving the Company,
the Subsidiary Guarantors and the Parent Guarantor; and in connection with
an Underwritten Registration, the Company, the Subsidiary Guarantors and
the Parent Guarantor shall:
(A) furnish to the Initial Purchasers, the Holders of
Transfer Restricted Securities who hold at least 25% in aggregate principal
amount of such class of Transfer Restricted Securities and each
underwriter, if any, in such substance and scope as they may reasonably
request and as are customarily made in connection with an offering of debt
securities pursuant to a Shelf Registration Statement upon the effective
date of the Shelf Registration
16
Statement (and if such Shelf Registration Statement contemplates an
Underwritten Offering of Transfer Restricted Securities upon the date of
the closing under the underwriting agreement related thereto):
(1) a certificate, dated the date of effectiveness of
the Shelf Registration Statement signed by (y) the respective chief
executive officer, the respective President or any Vice President and
(z) the respective chief financial officer of each of the Company and
each of the Subsidiary Guarantors and the Parent Guarantor confirming,
as of the date thereof, the matters set forth in Section 7(n) of the
Purchase Agreement and such other matters as such parties may
reasonably request;
(2) an opinion, dated the date of effectiveness of
such Shelf Registration Statement, of securities counsel for the
Company covering matters similar to those set forth in Section 7(d) of
the Purchase Agreement, which are appropriate for the circumstances
provided herefor, and such other matters as such parties may
reasonably request, and in any event including a statement to the
effect that such counsel has participated in conferences with officers
and other representatives of the Company, representatives of the
independent public accountants for the Company, the Initial
Purchasers' representatives and the Initial Purchasers' counsel in
connection with the preparation of such Shelf Registration Statement
and the related Prospectus although such counsel has not independently
verified the accuracy, completeness or fairness of such statements in
such Shelf Registration Statement; and that such counsel advises that,
on the basis of the foregoing, such counsel's work in connection with
this work did not disclose information that gave such counsel reason
to believe that the Shelf Registration Statement, at the time such
Shelf Registration Statement or any post-effective amendment thereto
became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances
under which they were made, not misleading, or that the Prospectus
contained in such Shelf Registration Statement as of its date
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not
misleading. Such counsel may state further that such counsel expresses
no view with respect to, assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules, the financial projections
and other financial, statistical and accounting data included or
incorporated by reference in the Shelf Registration Statement
contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated as of the date
of effectiveness of the Shelf Registration Statement from the
Company's
17
independent accountants, in the customary form and covering matters of
the type customarily covered in comfort letters to underwriters in
connection with primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered pursuant to
Sections 7(i) and 7(j) of the Purchase Agreement;
(B) set forth in full or incorporated by reference in
the underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company and
the Subsidiary Guarantors and the Parent Guarantor pursuant to this clause
(viii), if any.
If at any time during the Shelf Registration Period the representations and
warranties of the Company, the Subsidiary Guarantors or the Parent Guarantor
contemplated in clause (A)(1) above cease to be true and correct, the Company,
the Subsidiary Guarantors or the Parent Guarantor shall so advise the Initial
Purchasers and the underwriters, if any, and each selling Holder promptly and,
if requested by such Persons, shall confirm such advice in writing; and
(ix) prior to any public offering of Transfer Restricted
Securities cooperate with the selling Holders of Transfer Restricted
Securities 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 selling Holders of Transfer Restricted Securities or
underwriter(s) may reasonably request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement filed pursuant to Section 4 hereof; PROVIDED,
HOWEVER, that the Company, the Subsidiary Guarantors and the Parent
Guarantor shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which they are not now so qualified or to take any action
that would subject them to general consent to service of process, other
than as to matters and transactions relating to the Shelf Registration
Statement, in any jurisdiction where they are not now so subject.
(e) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in Section 6(d)(i) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the Shelf Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(d)(vi) hereof,
or until it is advised in writing (the "ADVICE")
18
by the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Shelf Registration Statement set
forth in Section 4 hereof, as applicable, shall be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to Section 6(d)(i) hereof to and including the date when each selling
Holder covered by such Shelf Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
6(d)(vi) hereof or shall have received the Advice.
(f) The Company, the Subsidiary Guarantors and the Parent Guarantor
may require each Holder of Transfer Restricted Securities as to which any
registration is being effected to furnish to the Company such information
regarding such Holder and such Holder's intended method of distribution of the
applicable Transfer Restricted Securities as the Company may from time to time
reasonably request in writing, but only to the extent that such information is
required in order to comply with the Securities Act. Each such Holder agrees to
notify the Company as promptly as practicable of (i) any inaccuracy or change in
information previously furnished by such Holder to the Company or (ii) the
occurrence of any event, in either case, as a result of which any Prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such Holder or such Holder's intended method of
distribution of the applicable Transfer Restricted Securities or omits to state
any material fact regarding such Holder or such Holder's intended method of
distribution of the applicable Transfer Restricted Securities required to be
stated therein or necessary to make the statements made therein, in the light of
the circumstances under which they were made, not misleading and promptly to
furnish to the Company any additional information required to correct and update
any previously furnished information or required so that such Prospectus shall
not contain, with respect to such Holder or the distribution of the applicable
Transfer Restricted Securities an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's, the Subsidiary
Guarantors' and the Parent Guarantor's performance of or compliance with this
Agreement will be borne by the Company, the Subsidiary Guarantors and the Parent
Guarantor regardless of whether a Registration Statement becomes effective,
including without limitation and as applicable: (i) all Commission, securities
exchange or NASD registration and filing fees and expenses (including filings
made by any Initial Purchasers or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent underwriter" and its counsel
that may be required by the rules and
19
regulations of the NASD)); (ii) all fees and expenses of compliance by the
Company, the Subsidiary Guarantors and the Parent Guarantor with U.S. federal
securities and state blue sky or securities laws and compliance with the rules
of the NASD (including reasonable fees and disbursements of one counsel for
Holders in connection with blue sky and/or NASD qualification of the Exchange
Notes); (iii) all expenses of printing (including printing of Prospectuses),
messenger and delivery services; (iv) all fees and disbursements of counsel for
the Company, the Subsidiary Guarantors and the Parent Guarantor; (v) all fees
and disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incident to such performance) and (vi) the reasonable fees and disbursements of
one nationally recognized law firm with experience in securities law matters
designated by the Holders of a majority in principal amount of Transfer
Restricted Securities covered by the Shelf Registration Statement to act as
counsel for the Holders of those Transfer Restricted Securities in connection
therewith.
The Company will, in any event, bear its, the Subsidiary Guarantors'
and the Parent Guarantor's internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any Person, including special experts, retained by the Company, the
Subsidiary Guarantors or the Parent Guarantor.
(b) Each Holder of Transfer Restricted Securities will pay all
underwriting discounts, if any, and commissions and transfer taxes, if any,
relating to the disposition of such Holder's Transfer Restricted Securities.
SECTION 8. INDEMNIFICATION
(a) The Company, each Subsidiary Guarantor and the Parent Guarantor
shall, jointly and severally, indemnify and hold harmless each Holder of
Transfer Restricted Securities, its officers and employees and each Person, if
any, who controls any such Holders, within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases, sales and registration of the
Notes, the Guarantees and the Exchange Notes), to which that Holder, officer,
employee or controlling Person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or preliminary Prospectus
or Prospectus or in any amendment or supplement thereto, (ii) the omission or
alleged omission to state in any Registration Statement, preliminary Prospectus
or Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made; or (iii) any act or
failure to act or any alleged act or failure to act by any Holder of Transfer
Restricted Securities in connection with, or relating in any manner to, the
Notes, the Guarantees or the Exchange Notes or the offering contemplated by any
Registration Statement, and which is included as part of or referred to in any
loss, claim,
20
damage, liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that the Company, the Subsidiary Guarantors
and the Parent Guarantor shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by such Holder through its gross negligence or willful misconduct); and shall
reimburse each Holder and each such officer, employee or controlling Person
promptly upon demand for any legal or other expenses reasonably incurred by that
Holder, officer, employee or controlling Person in connection with investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED, HOWEVER, that the
Company, the Subsidiary Guarantors and the Parent Guarantor shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Registration Statement,
preliminary Prospectus or Prospectus, or in any such amendment or supplement, in
reliance upon and in conformity with written information concerning such Holder
furnished to the Company by or on behalf of any Holder specifically for
inclusion therein; PROVIDED, FURTHER, that with respect to any such untrue
statement or omission made in any preliminary Prospectus or Prospectus, the
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of the Holder, its officers and employees, from whom the Person
asserting any such losses, claims, damages or liabilities purchased the Notes,
Guarantees or Exchange Notes concerned if, to the extent that such sale was a
sale by the Holder and any such loss, claim, damage or liability of such Holder
is a result of the fact that both (A) a copy of the Prospectus (or the
Prospectus as then amended or supplemented) was not sent or given to such Person
at or prior to written confirmation of the sale of such Notes or Exchange Notes
to such Person and (B) the untrue statement or omission in the preliminary
Prospectus or Prospectus delivered to the Person was corrected in the Prospectus
(or the Prospectus as then amended or supplemented) unless such failure to
deliver the Prospectus was a result of noncompliance by the Company with Section
6(d)(vi) hereof. The foregoing indemnity agreement is in addition to any
liability which the Company, the Subsidiary Guarantors and the Parent Guarantor
may otherwise have to any Holder or to any officer, employee or controlling
Person of that Holder.
(b) Each Holder, severally and not jointly, shall indemnify and
hold harmless each of the Company, each of the Subsidiary Guarantors, the Parent
Guarantor, their respective directors, officers and employees, and each Person,
if any, who controls either of the Company, any of the Subsidiary Guarantors or
the Parent Guarantor within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company, the Subsidiary Guarantors, the Parent Guarantor
or any such director, officer or controlling Person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary Prospectus or Prospectus, or in any amendment or supplement thereto
or (ii)
21
the omission or alleged omission to state in any Registration Statement,
preliminary Prospectus or Prospectus, or in any amendment or supplement thereto,
any material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information concerning such
Holders furnished to the Company by or on behalf of that Holder specifically for
inclusion therein, and shall reimburse the Company, each of the Subsidiary
Guarantors, the Parent Guarantor and each such director, officer, employee and
controlling Person promptly upon demand for any legal or other expenses
reasonably incurred by the Company, each such Subsidiary Guarantor and the
Parent Guarantor or each such director, officer, employee or controlling Person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any Holder
may otherwise have to the Company, any of the Subsidiary Guarantors, the Parent
Guarantor or any such director, officer, employee or controlling Person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and; PROVIDED, FURTHER, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel has been specifically authorized by the indemnifying
party in writing, or (ii) such indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party and in
the reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel or (iii) the indemnifying party has failed to
assume the defense of such action and employ counsel reasonably satisfactory to
the indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it
22
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to local counsel) at any
time for all such indemnified parties, which firm shall be designated in writing
by (x) Xxxxxx Brothers Inc. if the indemnified parties under this Section 8
consist of the Initial Purchasers or any of their respective officers, employees
or controlling Persons or (y) by the Company, if the indemnified parties under
this Section 8 consist of any of the Company, any of the Subsidiary Guarantors,
the Parent Guarantor or any of their respective directors, officers, employees
or controlling Persons. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company, the Subsidiary Guarantors and the Parent Guarantor, on
the one hand, and the Holders on the other, from the sale of the Transfer
Restricted Securities 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 Company, the Subsidiary Guarantors and the Parent
Guarantor, on the one hand and the Holders on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, any of the Subsidiary Guarantors or the Parent Guarantor, on the one
hand, or the Holders, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Subsidiary Guarantors, the Parent
23
Guarantor and the Holders agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no Holder
shall be required to contribute any amount in excess of the amount by which the
net proceeds received by it in connection with its sale of Notes exceeds the
amount of any damages which such Holder has otherwise paid or become liable to
pay by reason of the untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute as provided in this Section 8(d) are several and not
joint.
SECTION 9. RULE 144A
The Company, each Subsidiary Guarantor and the Parent Guarantor hereby
agree with each Holder of Transfer Restricted Securities, during any period in
which the Company, such Subsidiary Guarantor or the Parent Guarantor is not
subject to Section 13 or 15(d) of the Exchange Act within the two-year period
following the Closing Date, to make available to any Holder or beneficial owner
of Transfer Restricted Securities, in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities from such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
Subject to Section 6(d)(i), 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 at such
Holders' expense. In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in
24
aggregate principal amount of the Transfer Restricted Securities included in
such offering; PROVIDED that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) REMEDIES. The Company, the Subsidiary Guarantors and the Parent
Guarantor agree that monetary damages (including Additional Interest) would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. None of the Company, the Subsidiary
Guarantors nor the Parent Guarantor will, on or after the date of this
Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. Except as disclosed in the
Offering Memorandum (as such term is defined in the Purchase Agreement), none of
the Company, the Subsidiary Guarantors nor the Parent Guarantor has previously
entered into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's, or any Subsidiary Guarantors' or the Parent
Guarantor's securities under any agreement in effect on the date hereof.
(c) ADJUSTMENTS AFFECTING THE NOTES. The Company, the Subsidiary
Guarantors and the Parent Guarantor will not take any action, or permit any
change to occur, with respect to the Notes that would materially and adversely
affect the ability of the Holders to Consummate any Exchange Offer except such
actions or changes as required by law.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of Holders of a majority of the outstanding
principal amount of the Transfer Restricted Securities affected by such
amendment, modification, supplement, waiver or consent. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, facsimile or air
courier guaranteeing overnight delivery:
25
(i) if to a Holder, at the address set forth on the records
of the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company or the Subsidiary Guarantors to:
Medex, Inc.
0000 Xxxxx-Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: General Counsel
if to the Parent Guarantor to:
MedVest Holdings Corporation
0000 Xxxxx-Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: General Counsel
in each case, with a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: R. Xxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
Any such notices and communications shall take effect at the time of
receipt thereof. The Company shall be entitled to act and rely upon any notice
or communication given or made by the Initial Purchasers.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; PROVIDED, HOWEVER, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so
26
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED, IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company, the
Subsidiary Guarantors and the Parent Guarantor with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
[Signature pages follow.]
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Very truly yours,
MEDEX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Chief
Financial Officer and
Treasurer
MEDVEST HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Chief
Financial Officer and
Treasurer
MEDEX MEDICAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Chief
Financial Officer and
Treasurer
MEDEX CARDIO-PULMONARY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Chief
Financial Officer and
Treasurer
SIGNATURE PAGES TO REGISTRATION RIGHTS AGREEMENT
Accepted on behalf of the Initial Purchasers:
XXXXXX BROTHERS INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
