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EXHIBIT 4.4
NOTE REGISTRATION RIGHTS AGREEMENT
This NOTE REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of September 30, 1997, by and among Physicians Clinical
Laboratory, Inc., a Delaware corporation ("PCL"), on the one hand, and Oaktree
Capital Management, LLC, as general partner and investment manager on behalf of
certain funds and accounts set forth in Schedule I hereto (in such capacity,
"Oaktree"), The Copernicus Fund, L.P. ("Copernicus"), The Galileo Fund, L.P.
("Galileo" and, collectively with Copernicus, "DDJ"), Belmont Fund, L.P.
("Belmont I"), Belmont Capital Partners II, L.P. ("Belmont II" and, collectively
with Belmont I, "Belmont"), Cerberus Partners, L.P. ("Cerberus" and,
collectively with Oaktree, DDJ, and Belmont, the "Initial Holders").
The parties hereby agree as follows:
Definitions
Any capitalized terms used herein and not defined herein shall have
the respective meanings assigned thereto in the Indenture. As used in this
Agreement, the following capitalized terms shall have the following meanings:
Commercially Reasonable Efforts, when used with respect to any
obligation to be performed or term or provision to be observed hereunder, means
such efforts as a prudent Person seeking the benefits of such performance or
action would make, use, apply or exercise to preserve, protect or advance its
rights or interests, provided, that such efforts do not require such Person to
incur a material financial cost or a substantial risk of material liability
unless such cost or liability (i) would customarily be incurred in the course of
performance or observance of the relevant obligation, term or provision, (ii) is
caused by or results from the wrongful act or negligence of the Person whose
performance or observance is required hereunder or (iii) is not excessive or
unreasonable in view of the rights or interests to be preserved, protected or
advanced. Such efforts may include, without limitation, the expenditure of such
funds and retention by such Person of such accountants, attorneys or other
experts or
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advisors as may be necessary or appropriate to effect the relevant action; and
the commencement, termination or settlement of any action, suit or proceeding
involving such Person to the extent necessary or appropriate to effect the
relevant action.
Company shall mean PCL or any successor thereto pursuant to Article
VI of the Indenture.
Exchange Act shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
Holder shall mean any holder of record of Registrable Securities.
Indenture shall mean that certain Indenture of even date herewith
between the Company and the Trustee, as amended and supplemented from time to
time in accordance with the terms thereof.
NASD shall mean the National Association of Securities Dealers, Inc.
Participating Holders means, with respect to any registration of
Registrable Securities by the Company pursuant to this Agreement, the requesting
Holder and any other Holders that are entitled to participate in, and are
participating in or seeking to participate in, such registration.
Person shall mean an individual, trustee, corporation, partnership,
joint stock company, trust, unincorporated association, union, business
association, firm or other legal entity.
Prospectus shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any 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 prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement,
and all other amendments and
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supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Registrable Securities shall mean the Securities originally issued
to the Holders and at all times subsequent thereto until (i) a Registration
Statement covering such Securities has been declared effective by the SEC, (ii)
such Securities are sold in compliance with Rule 144 or are eligible to be sold
in compliance with Rule 144(k) or (iii) such Securities cease to be outstanding;
provided, however, that any Securities which are, in the opinion of counsel to
the Company or counsel selected by any Holder of more than 10% of the principal
amount at maturity of the issued and outstanding Securities, exempt from the
registration requirements of Section 5 of the Securities Act by virtue of to
Section 1145 of the Bankruptcy Code of 1978, as amended, shall not constitute
Registrable Securities.
Registration Notice shall mean a written notice served on the
Company by Holders representing at least a majority in principal amount at
maturity of the outstanding Registrable Securities to require the Company to
cause Registrable Securities to be registered with the SEC.
Registration Statement shall mean any registration statement of the
Company, including but not limited to a Shelf Registration Statement, 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 material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144 shall mean Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
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Rule 415 shall mean Rule 415 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 shall mean the Securities and Exchange Commission.
Securities shall mean the Senior Secured Notes due 2004, as amended
or supplemented from time to time pursuant to the terms of the Indenture, issued
to the Initial Holders under the Indenture, and any Securities issued to Holders
by the Company pursuant to the terms of the Indenture in payment of interest
obligations of the Company with respect to the Securities.
Securities Act shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Shelf Registration Statement means a Registration Statement filed
under Rule 415 under the Securities Act.
Underwritten Registration or Underwritten Offering shall mean a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
1. Required Registration
(a) At any time, but no more than once, after December 31, 1998, the
Holders of a majority of the then outstanding principal amount at maturity of
Registrable Securities may serve a written Registration Notice on the Company
requesting that the Company effect the registration under the Securities Act of
all or any portion of such Holders' Registrable Securities. Upon the receipt of
such Registration Notice, and subject to the Company's right to redeem the
Registrable Securities pursuant to Section 3.7 of the Indenture, the Company
shall (i) carefully prepare and, within one hundred and twenty (120) days
following the receipt of the Registration Notice, file with the SEC a
Registration Statement covering all the Registrable Securities that would allow
a public sale of such Securities in accordance with the intended method of
disposition specified in such Registration Notice, and shall (ii) use
Commercially Reasonable Efforts to cause such Registration Statement to become
effective within one hundred and eighty (180) days following the date on which
the Registration Notice was
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received by the Company, all in accordance with the provisions of this
Agreement. If such method of disposition shall be an Underwritten Registration
or an Underwritten Offering, the Holders of a majority of the then outstanding
Registrable Securities included in such offering may designate the managing
underwriter of such offering provided, that such election shall be subject to
the consent of the Company, which consent shall not be unreasonably withheld,
delayed or conditioned. Notwithstanding anything to the contrary contained
herein, the obligation of the Company under this Section 1 shall be deemed
satisfied only when a Registration Statement covering all Registrable Securities
that have been requested to be registered pursuant to this Section 1 for sale in
accordance with the method of disposition specified by the requesting Holders
shall have become effective. The Company shall not permit any securities, other
than (x) the Registrable Securities, and (y) securities of the Company held by
any other person which may be entitled to include such securities in such
registration pursuant to an agreement with the Company entered into in
connection with any material financing, acquisition, corporate reorganization or
merger or other corporate transaction involving the Company or any of its
subsidiaries if the inclusion of such securities was approved prior to the
execution of such agreement by the Holders of at least 66 2/3% in principal
amount of the Registrable Securities.
(b) If the Board or Directors of the Company, in its good
faith judgment and by action approved by at least four of the five members
thereof, determines that any registration of Registrable Securities should not
be made or continued because it would materially interfere with, or cause the
Company against its best interest to disclose, any material financing,
acquisition, corporate reorganization or merger or other corporate transaction
involving the Company or any of its subsidiaries (a "Valid Business Reason"),
the Company may (no more than twice during any twelve (12) month period and for
a period not to exceed thirty (30) days on any one occasion, and not in any
event to exceed forty-five (45) days in the aggregate in any such period) (x)
postpone filing a Registration Statement relating to a Registration Notice until
such Valid Business Reason no longer exists, or (y) in case a Registration
Statement has been filed relating to a Registration Notice, cause such
Registration Statement to be withdrawn and its effectiveness terminated, suspend
use of any such Registration Statement or postpone amending or supplementing
such Registration
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Statement until such Valid Business Reason no longer exists; and the Company
shall give written notice of its determination to postpone, suspend or withdraw
a Registration Statement and of the fact that the Valid Business Reason for such
suspension, postponement or withdrawal no longer exists, in each case, promptly
after the occurrence thereof (any period of time during which a Valid Business
Reason continues to cause such a postponement, withdrawal or suspension, a
"Valid Business Reason Suspension Period"). Each Holder agrees that, upon
receipt of any notice from the Company that the Company has determined to
withdraw any Registration Statement due to a Valid Business Reason such Holder
will discontinue its disposition of Registrable Securities pursuant to such
Registration Statement and, if so directed by the Company, 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 Registrable
Securities that was in effect at the time of receipt of such notice.
(c) The Company shall not be required to prepare, file or cause to
be effective or maintain the effectiveness of any Registration Statement, and
the Company may postpone filing a Registration Statement relating to a
Registration Notice and, in case a Registration Statement has been filed
relating to a Registration Notice, the Company may cause such Registration
Statement to be withdrawn and its effectiveness terminated, suspend use of any
such Registration Statement or postpone amending or supplementing such
Registration Statement during any period (not to exceed thirty (30) days in the
aggregate) if each of the Company and the Requisite Holders of the Registrable
Securities covered by such Registration Statement consents in writing to such
postponement, withdrawal or suspension for such period (any period of time
during such postponement, withdrawal or suspension continues, a "Consented
Suspension Period," with Valid Business Reason Suspension Period and Consented
Suspension Period collectively referred to herein as a "Suspension Period").
(d) Whenever the Company shall have received a Registration Notice
pursuant to Section 1(a), the Company shall promptly give written notice of such
requested registration to any other Holders from whom such Registration Notice
has not been received, and will allow each such Holder the opportunity to
participate in such registration. Each such Holder may, within ten (10) days
after receipt of such notice, request in writing that all
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of such Holder's Registrable Securities, or any portion thereof designated by
such Holder, be included in the offering.
(e) Once a Registration Statement is effective pursuant to Section
1(a) hereof, the Company shall use Commercially Reasonable Efforts to cause such
Registration Statement to remain continuously effective (i) in the case of a
Registration Statement other than a Shelf Registration Statement, until earlier
of (x) the six (6) month anniversary of the date such Registration Statement is
declared effective by the SEC (such time period to be extended by the number of
days any Suspension Period is in effect pursuant to Sections 1(b) or 1(c),
above) and (y) the date on which all of the Registrable Securities covered by
such Registration Statement have been distributed; and (ii) in the case of a
Shelf Registration Statement, until the earlier of (x) the date which is
eighteen (18) months following the date such Shelf Registration Statement is
declared effective by the SEC (such time periods to be extended by the number of
days any Suspension Period is in effect pursuant to Sections 1(b) or 1(c),
above) and (y) the date on which all of the Registrable Securities covered by
such Registration Statement have been sold, but in no event (in either case)
prior to the expiration of the applicable period referred to in Section 4(3) of
the Securities Act and Rule 174 thereunder (such period being defined as the
"Effective Period" with respect to any such Registration Statement other than a
Shelf Registration Statement and as the "Shelf Period" with respect to any such
Shelf Registration Statement).
(f) The Company and the Holders agree that the Participating Holders
of Registrable Securities will suffer damages if the Company fails to fulfill
its obligations under this Section 1 and that ascertaining the extent of such
damages with precision would not be feasible. Accordingly, the Company agrees to
pay liquidated damages with respect to the Registrable Securities held by each
Participating Holder that has complied with such Holder's obligations under this
Agreement ("Liquidated Damages"), if:
(i) any Registration Statement required to be
filed pursuant to this Section 1 is not filed with the SEC on or prior to the
date specified for such filing in this Agreement (taking into account any
extension of such date due to any Suspension Period in effect pursuant to
Sections 1(b) or 1(c), above);
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(ii) any such Registration Statement has not been declared
effective by the SEC on or prior to the date specified for such effectiveness in
this Agreement (taking into account any extension of such date due to any
Suspension Period in effect pursuant to Sections 1(b) or 1(c), above) (the
"Effectiveness Target Date"); or
(iii) any Registration Statement required by to be filed
pursuant to this Section 1 is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose without
being succeeded promptly by a post effective amendment to such Registration
Statement that cures such failure and that is itself promptly declared effective
(unless such cessation of effectiveness of failure to be usable for its intended
purpose is due to a Suspension Period in effect pursuant to Sections 1(b) or
1(c), above);
(each such event in clauses (i) through (iii) above being referred to herein as
a "Registration Default"). Such additional interest comprising Liquidated
Damages shall be an amount equal to (A) with respect to the first 90-day period
immediately following the occurrence of a Registration Default, $.05 per week
per $1,000 principal amount of the Registrable Securities held by such holder
for each week or portion thereof that any Registration Default continues, plus
(B) an additional $.05 per week per $1,000 in principal amount of the
Registrable Securities with respect to each 90-day period subsequent to the
first 90-day period, until all Registration Defaults have been cured, up to an
amount equal to $.40 per week per $1,000 in principal amount of Registrable
Securities held by such Holder. The Company shall notify the trustee under the
Indenture within five Business Days after each and every date on which a
Registration Default occurs. All accrued Liquidated Damages shall be paid by the
Company in cash on or before each applicable interest payment date to Holders of
record of the Registrable Securities in the same manner as interest is payable
pursuant to the terms of the Indenture; provided, however, that in the event
that the Company reasonably and in good faith disputes the occurrence of a
Registration Default or that Liquidated Damages are payable to any Participating
Holder, any Liquidated Damages which would otherwise be due to be paid by the
Company on such interest payment date in respect of such disputed Liquidated
Damages shall be deposited with the Trustee under the Indenture on or before
such interest payment date, to be held in
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escrow pending the final resolution of such dispute. Each obligation to pay
Liquidated Damages shall be deemed to accrue beginning on the day of the
applicable Registration Default. Following the cure of all Registration
Defaults, the accrual of Liquidated Damages will cease until the next
Registration Default, if any. No Liquidated Damages shall be payable with
respect to any week commencing two years or more after the Company consummates a
registered public offering of its equity securities.
(g) If a registration pursuant to this Section 1 involves an
Underwritten Offering and the managing underwriter of such Underwritten Offering
advises the Company in writing (with a copy to each Participating Holder) of its
belief that the amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during the time of)
such offering within an acceptable price range, then the amount of securities to
be sold in such offering shall be reduced in accordance with the advice of such
managing underwriter. In the case of any such reduction, then the Company shall
include in such demand registration that amount of Registerable Securities that
the Company is so advised can be sold in (or during the time of) the offering,
is follows: first, Registerable Securities of any participating Holder, pro
rata, on the basis of the principal amount of such securities held by such
Holder; and second, all other securities of the Company duly requested to be
included in such Registration Statement.
2. Incidental Registration
If the Company at any time after the date hereof proposes to
register any of its debt or equity securities (as defined in the Exchange Act)
under the Securities Act (other than pursuant to a registration statement on
Form S-4 or S-8, or any successor forms), whether or not for sale for its own
account, and the registration form to be used may be used for the registration
of the Registrable Securities, it will each time give prompt written notice to
the Holders of its intention to do so and, upon the written request of any such
Holder to the Company made within 30 days after the receipt of any such notice
(which request shall specify the Registrable Securities intended to be disposed
of by such Holder and the intended method of disposition thereof), the Company
shall use its reasonable efforts to effect the registration under the Securities
Act of all Registrable Securities which the Company has
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been so requested to register by the Holders thereof, to the extent required to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered, provided that:
(1) if, at any time after giving written notice of its
intention to register any securities and, prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such securities,
the Company may, at its election, give written notice of such
determination to each Holder and, thereupon, the Company shall be relieved
of its obligation to register any Registrable Securities in connection
with such registration (but not of its obligation to pay the registration
expenses in connection therewith); and
(2) if a registration pursuant to this Section 2 involves an
Underwritten Offering and the managing underwriter of such Underwritten
Offering advises the Company in writing (with a copy of each Participating
Holder) of its belief that the amount of securities requested to be
included in such registration exceeds the amount which can be sold in (or
during the time of) such offering within an acceptable price range, then
the Company will include in such registration that number of securities
which the Company is so advised can be sold in (or during the time of) the
offering as follows: first, all securities proposed by the Company to be
sold for its own account; second, Approved Piggyback Securities and
Registrable Securities held by any Participating Holder or holder of
Approved Piggyback Securities, respectively, that has properly requested
that its Registrable Securities or Approved Piggyback Securities,
respectively, be included in such registration, pro rata, on the basis of
the amount of such Registrable Securities or Approved Piggyback Securities
held by such holder; and third, all of the securities of the Company duly
requested to be included in such registration statement.
3. Registration Procedures
In connection with the registration of any Registrable Securities
hereunder, the Company shall effect such registrations
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to permit the sale of such Registrable Securities in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Company shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed herein and 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, the Company shall furnish to and afford the Holders of the
Registrable Securities, counsel for the Holders (the "Holders Counsel") and the
managing underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (at least 5
business days prior to such filing). The Company shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto in respect of
which the Holders must be afforded an opportunity to review prior to the filing
of such document, if the Holders of a majority in aggregate principal amount of
the Registrable Securities covered by such Registration Statement, the Holders
Counsel, or the managing underwriters, if any, shall reasonably object.
Liquidated Damages will not be paid with respect to any period during which the
Registration Statement shall cease to be effective or usable by reason of the
objection of the Holders of majority of Registerable Securities, or a managing
underwriter selected by the Holders, to the filing of any amendment or
supplement to any registration statement or prospectus.
(b) 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 effective and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement until such time as all of the securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such Registration Statement, but in no event for
a period of more than two years after the Registration Statement becomes
effective, excluding any periods during which the SEC shall have issued any stop
order with respect to such Registration Statement; cause the related Prospectus
to be supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424
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(or any similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to it with respect to
the disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented; the Company shall be deemed
not to have used its best efforts to keep a Registration Statement effective
during the Effectiveness Period if it voluntarily takes any action that would
result in the Holders of the Registrable Securities covered thereby not being
able to sell such Registrable Securities during that period unless such action
is required by applicable law.
(c) Notify the Holders of Registrable Securities, the Holders
Counsel and the managing underwriters, if any, promptly (but in any event within
two business days), and confirm such notice in writing, (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose, (iii) if at any time when a prospectus is
required by the Securities Act to be delivered in connection with sales of the
Registrable Securities the representations and warranties of the Company
contained in any agreement (including any underwriting agreement) contemplated
by Section 3(l) below cease to be true and correct, (iv) of the receipt by any
officer or representative of the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Securities for offer or sale in
any jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event or any information becoming known
that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus or documents so that, in the
case of the Registration Statement, it will 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
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therein not misleading, and that in the case of the Prospectus, it will 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 light of the circumstances under which they were made, not misleading, and
(vi) of the Company's reasonable determination that a post-effective amendment
to a Registration Statement would be appropriate.
(d) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction, and, if any such order is issued, to use its best efforts
to obtain the withdrawal of any such order at the earliest possible moment.
(e) If requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount at maturity of the
Registrable Securities subject to the Registration Statement, (i) promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, or such Holders or counsel
reasonably request to be included therein, (ii) make all required filings of
such prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment, and
(iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities and to the
Holders Counsel and each managing underwriter, if any, without charge, one
conformed copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and schedules,
and, if requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) Deliver to each Holder of Registrable Securities, their counsel,
and the underwriters, if any, without charge, as many copies of the Prospectus
or Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any documents incorporated by reference
therein as such Persons may reasonably request; and, subject to the last
paragraph of this
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Section 3, the Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the Holders of Registrable Securities
and the underwriters or agents, if any, and dealers (if any), in connection with
the offering and sale of the Registrable Securities covered by such Prospectus
and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to use
its best efforts to register or qualify, and to cooperate with the Holders of
Registrable Securities, the underwriters, if any, and their respective counsel
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 Holder or the managing underwriters, if any, reasonably request in
writing as are reasonably necessary to permit the offer and sale of such
Securities in such jurisdictions, provided that where Registrable Securities are
offered other than through an underwritten offering, the Company agrees to cause
its counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 3(h); keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
applicable Registration Statement, provided that the Company shall not be
required to (A) qualify generally to do business in any jurisdiction where it is
not then so qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject or
(C) subject itself to taxation in excess of a nominal dollar amount in any such
jurisdiction.
(i) Cooperate with the Holders of Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters, if any, or Holders may reasonably request.
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(j) Use its best efforts to cause the Registrable 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 underwriters, if any, to consummate the disposition of
such Registrable Securities, except as may be required solely as a consequence
of the nature of such Holder's business, in which case the Company will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals.
(k) Upon the occurrence of any event contemplated by Section 3(c)(v)
or 3(c)(vi) above, as promptly as practicable prepare and (subject to Section
3(a) above) file with the SEC, at the expense of the Company, a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder
any such Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(l) In the event of an underwritten offering of Registrable
Securities, enter into an underwriting agreement as is customary in underwritten
offerings and take all such other actions as are reasonably requested by the
managing underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such connection, (i) make
such representations and warranties to the underwriters, with respect to the
business of the Company and its subsidiaries and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company and updates thereof in
form and substance reasonably satisfactory to the managing underwriters,
addressed to the underwriters covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by underwriters; (iii) obtain "cold comfort" letters and
updates
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thereof in form and substance reasonably satisfactory to the managing
underwriters from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each of the underwriters, such letters
to be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings and such other
matters as reasonably requested by underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 5 hereof (or such
other provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable Securities covered by such Registration
Statement and the managing underwriters or agents) with respect to all parties
to be indemnified pursuant to said Section. The above shall be done at each
closing under such underwriting agreement, or as and to the extent required
thereunder.
(m) Make available for inspection by any Holder of such Registrable
Securities being sold, any underwriter participating in any such disposition of
Registrable Securities, if any, and any attorney, accountant or other agent
retained by any such Holder, or underwriter (collectively, the "Inspectors"), at
the offices where normally kept, during reasonable business hours, all financial
and other records, pertinent corporate documents and properties of the issuers
and their respective subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the Company
and its subsidiaries to supply all information in each case reasonably requested
by any such Inspector in connection with such Registration Statement. Records
which the Company determines, in good faith, to be confidential and any Records
which it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or (iii) the information in such Records has
been made generally available to the public. Each Holder of such Registrable
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17
Securities will be required to agree that information obtained by it as a result
of such inspections shall be deemed confidential and shall not be used by it as
the basis for any market transactions in the securities of the Company unless
and until such is made generally available to the public. Each Holder of such
Registrable Securities will be required to further agree that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company to undertake
appropriate action to prevent disclosure of the Records deemed confidential at
their expense.
(n) Comply with all applicable rules and regulations of the SEC and
make generally available to the Holders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(o) Cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD.
(p) Use its best efforts to take all other steps necessary to effect
the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby.
Each Holder of Registrable Securities agrees by acquisition
of such Registrable Securities that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(a), 3(c)(ii),
3(c)(iv), 3(c)(v), or 3(c)(vi), such Holder will forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(k), or until it is
advised in writing by the Company that the use of the
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18
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto.
4. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company, whether or not
a Registration Statement is filed or becomes effective, including, without
limitation, (i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of its counsel in connection with Blue Sky qualifications of the
Registrable Securities and determination of the eligibility of the Registrable
Securities for investment under the laws of such jurisdictions as provided in
Section 3(h), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities and of printing prospectuses),
(iii) messenger, telephone and delivery expenses, (iv) reasonable fees and
disbursements of counsel to the Company and one counsel to the Holders, (v)
reasonable fees and expenses of all independent certified public accountants
referred to in Section 3(l)(iii) (including, without limitation, the expenses of
any special audit and "cold comfort" letters required by or incident to such
performance), (vi) the reasonable fees and expenses of any "qualified
independent underwriter" or other independent appraiser participating in an
offering pursuant to Section 2 of Schedule E to the By-laws of the NASD, unless
such qualified independent underwriter or other independent appraiser is
required to participate by reason of the affiliation of a participating Holder,
(vii) Securities Act liability insurance, if the Company desires such insurance,
(viii) fees and expenses of all other Persons retained by the Company, (ix)
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees of the Company performing legal or
accounting duties), (x) the expense of any annual audit, (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange and (xii) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, securities sales agreements, indentures and any other
documents
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19
necessary in order to comply with this Agreement. Notwithstanding the foregoing,
the Company shall not be liable for any underwriting discounts or commissions
incident to the sale of any Registrable Securities pursuant to this Agreement.
5. Indemnification
(a) The Company will indemnify and hold harmless each Holder of
Registrable Securities, the directors, officers, employees and agents of each
Person, and each Person, if any, who controls any such Person within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act (each a
"Participant") from and against any and all losses, claims, liabilities,
expenses and damages (including any and all investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they, or any of them, may become subject under the Securities Act, the Exchange
Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based on any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement or Prospectus or any
amendment or supplement thereto or any preliminary prospectus or the omission or
alleged omission to state in such document a material fact required to be stated
in it or necessary to make the statements in it not misleading, provided that a
Participant will not be entitled to any such indemnification hereunder to the
extent that such loss, claim, liability, expense or damage arises from and is
based on an untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to such
Participant furnished in writing to the Company by such Participant expressly
for inclusion therein.
(b) Each Participant will indemnify and hold harmless the Company,
each Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, and each director,
officer, employee or agent of the Company to the same extent as the foregoing
indemnity from the Company to each Participant, but only insofar as losses,
claims, liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information
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20
relating to such Participant furnished in writing to the Company by such
Participant expressly for use in any Registration Statement or Prospectus or any
amendment or supplement thereto or any preliminary prospectus. The liability of
any Participant under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Registrable Securities giving rise to
such obligations.
(c) Any party that proposes to assert the right to be indemnified
under this Section 5 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 5, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 5 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel satisfactory to the indemnified party, and after notice
from the indemnifying party to the indemnified party of its election to assume
the defense, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party
in connection with the defense. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party)
between the
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21
indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf of
the indemnified party) or (4) the indemnifying party has not in fact employed
counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. An indemnifying party will
not be liable for any settlement of any action or claim effected without its
written consent (which consent will not be unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 5 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or any Participant, the
Company and each Participant will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from Persons other than a
Participant, such as Persons who control the Company within the meaning of the
Securities Act, officers of the Company and directors of the Company, who also
may be liable for contribution) to which the Company and each Participant may be
subject in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and each Participant on the other, with respect to
the statements or omissions which resulted in such loss, claim, liability,
expense or damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such 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 or a
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22
Participant, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Participant shall agree that it would not be just and
equitable if contributions pursuant to this Section 5(d) were to be determined
by pro rata allocation 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, liability,
expense or damage, or action in respect thereof, referred to above in this
Section 5(d) shall be deemed to include, for purpose of this Section 5(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 5(d), a Participant shall not be
required to contribute any amount in excess of the amount by which proceeds
received by such Participant from sales of Registrable Securities exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission, and no Person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 5(d), any Person who controls a party to this Agreement
within the meaning of the Securities Act will have the same rights to
contribution as that party, and each officer of the Company will have the same
rights to contribution as the Company, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 5(d), will notify any such party or
parties from whom contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 5(d). No party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 5 will be in addition to any liability which the indemnifying Persons
may otherwise have to the indemnified Persons referred to above.
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23
6. Rule 144
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any time
the Company is not required to file such reports, it will, upon the request of
any Holder of Registrable Securities, make publicly available other information
so long as necessary to permit sales pursuant to Rule 144 under the Securities
Act. The Company further covenants that it will take such further action as any
Holder of Registrable Securities 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 (a) Rule 144 under the Securities Act, as such Rules may
be amended from time to time, or (b) any similar rule or regulation hereafter
adopted by the SEC.
7. Underwritten Registrations
No Holder of Registrable Securities may participate in any Underwritten
Registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
(including lockup provisions) approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
8. Miscellaneous
(a) Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights provided herein or, in the
case of the Initial Holders, in the Purchase Agreement or granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific
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24
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
(b) No Inconsistent Agreements. The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(c) Certain Additional Obligations of Holders. Each Holder shall,
within ten business days after the Company shall give notice to such Holder,
furnish to the Company, in writing, such information regarding such Holder, the
Registerable Securities held by such Holder and the intended plan of
distribution of such securities as the Company may reasonably request for use in
connection with any registration statement or Prospectus or Preliminary
Prospectus included therein.
(d) 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 at least a majority of the then outstanding Registrable Securities.
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 of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Securities 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.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
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25
(i) if to an Initial Holder, at the address set forth above such
Initial Holder's signature on the signature pages attached hereto;
(ii) if to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company; and
(iii) if to the Company, at:
Physicians Clinical Laboratory, Inc.
0000 X Xxxxxx
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Attention: Chief Financial Officer
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
(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 or consent of the Company, subsequent Holders of Registrable
Securities; provided, however, that any such permitted transferee of
Registerable Securities agrees in writing, in form and substance satisfactory to
the Company, to be bound by all of the terms and provisions hereof and to join
this Agreement as a party hereto. Without limiting the foregoing, no such
assignment shall be binding upon or obligate the Company to any such assignee
unless and until the Company has received notice of the assignment as herein
provided, which notice (i) references this Agreement and (ii) sets forth the
address of any assignee for the purpose of any notices hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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26
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction 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, 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 is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(k) Acknowledgement of Rights. The Company will, upon request of a
Holder, acknowledge in writing the Company's obligation in respect of the rights
to which a Holder shall be entitled under this Agreement, provided that the
failure of a Holder to make any such request shall not affect the continuing
obligation of the Company to the Holder in respect of such rights.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement in respect of the subject matter contained
herein, 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.
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27
IN WITNESS WHEREOF, duly authorized representatives of each of the
parties hereto have executed this Agreement as of the date first written above.
PHYSICIANS CLINICAL LABORATORY, INC.
By: ________________________________
J. Xxxxxx Xxxxxxxxxx
Chief Operating Officer
OAKTREE CAPITAL MANAGEMENT, LLC, on behalf of
certain funds and accounts listed on Schedule I
hereto
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
Address: 000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
THE COPERNICUS FUND, L.P.
By: DDJ Copernicus, LLC, its general partner
By: ________________________________
Name:
Title:
Address: c/o DDJ Capital Management, LLC
000 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxxxxx, XX 00000
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28
THE GALILEO FUND, L.P.
By: DDJ Galileo, LLC, its general partner
By: ________________________________
Name:
Title:
Address: c/o DDJ Capital Management, LLC
000 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxxxxx, XX 00000
BELMONT FUND, L.P.
By: ________________________________
Name:
Title:
Address: Fidelity Investments
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
BELMONT CAPITAL PARTNERS II, L.P.
By: ________________________________
Name:
Title:
Address: Fidelity Investments
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
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29
CERBERUS PARTNERS, L.P.
By: ________________________________
Xxxxxx Xxxxxxxxx
Managing Director
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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