EXHIBIT 4.2
CONFORMED COPY
LINCARE HOLDINGS INC.
3.00% CONVERTIBLE SENIOR DEBENTURES DUE 2033
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made
and entered into as of June 11, 2003 by and among Lincare Holdings Inc., a
Delaware corporation (the "COMPANY"), and ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Banc
of America Securities LLC, as representatives of the initial purchasers (the
"INITIAL PURCHASERS"), pursuant to the Purchase Agreement, dated as of June 5,
2003, among the Company and the Initial Purchasers (the "PURCHASE AGREEMENT").
In order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Company has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
1. CERTAIN DEFINITIONS.
For purposes of this Registration Rights Agreement, the following terms
shall have the following meanings:
(a) "ADDITIONAL AMOUNTS" has the meaning assigned thereto in
Section 2(d).
(b) "ADDITIONAL AMOUNTS PAYMENT DATE" has the meaning
assigned thereto in Section 2(d).
(c) "AFFILIATE" shall have the meaning specified in Rule 405
under the Securities Act and the terms "controlling" and "controlled"
shall have meanings correlative thereto.
(d) "AGREEMENT" has the meaning specified in the first
paragraph of this Agreement.
(e) "APPLICABLE CONVERSION PRICE" means, as of any date of
determination, $1,000 divided by the Conversion Rate in effect as of
such date of determination.
(f) "BUSINESS DAY" means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
The City of New York are authorized or obligated by law or executive
order to close.
(g) "CLOSING DATE" means the date on which the Debentures are
initially issued.
(h) "COMMISSION" means the Securities and Exchange Commission,
or any other federal agency at the time administering the Exchange Act
or the Securities Act, whichever is the relevant statute for the
particular purpose.
(i) "COMPANY" has the meaning specified in the first paragraph
of this Agreement.
(j) "CONVERSION RATE" shall have the meaning assigned such
term in the Indenture.
(k) "DEBENTURES" means the Company's 3.00% Convertible Senior
Debentures due 2033, to be issued under the Indenture and sold by the
Company to the Initial Purchasers, and securities (other than the
Shares) of the Company issued in exchange therefor or in lieu thereof
pursuant to the Indenture.
(l) "DEFERRAL NOTICE" has the meaning assigned thereto in
Section 3(b).
(m) "DEFERRAL PERIOD" has the meaning assigned thereto in
Section 3(b).
(n) "EFFECTIVE PERIOD" has the meaning assigned thereto in
Section 2(a).
(o) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
(p) "HOLDER" means each holder, from time to time, of
Registrable Securities (including the Initial Purchasers).
(q) "INDENTURE" means the Indenture, dated as of June 11,
2003, between the Company and U.S. Bank Trust National Association, as
Trustee, pursuant to which the Debentures are being issued.
(r) "INITIAL PLACEMENT" means the initial placement of the
Securities pursuant to the terms of the Purchase Agreement.
(s) "INITIAL PURCHASERS" has the meaning specified in the
first paragraph of this Agreement.
(t) "LOSSES" has the meaning assigned thereto in Section 6(d).
(u) "MATERIAL EVENT" has the meaning assigned thereto in
Section 3(a)(iv).
(v) "MAJORITY HOLDERS" shall mean, on any date, holders of the
majority of the Shares constituting Registrable Securities; for the
purposes of this definition, Holders of Debentures constituting
Registrable Securities shall be deemed to be the Holders of the number
of Shares into which such Debentures are or would be convertible as of
such date.
(w) "NASD" shall mean the National Association of Securities
Dealers, Inc.
(x) "NASD RULES" shall mean the Conduct Rules and the By-Laws
of the NASD.
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(y) "NOTICE AND QUESTIONNAIRE" means a written notice
delivered to the Company containing substantially the information
called for by the Form of Selling Securityholder Notice and
Questionnaire attached as Annex A to the Offering Memorandum.
(z) "NOTICE HOLDER" means, on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such
date.
(aa)"OFFERING MEMORANDUM" means the Offering Memorandum dated
June 5, 2003 relating to the offer and sale of the Securities.
(bb)"PERSON" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(cc)"PROSPECTUS" means the prospectus included in any Shelf
Registration Statement, as amended or supplemented by any amendment or
prospectus supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be
incorporated by reference in such Prospectus.
(dd)"PURCHASE AGREEMENT" has the meaning specified in the
first paragraph of this Agreement.
(ee)"REGISTRABLE SECURITIES" means the Securities; PROVIDED,
HOWEVER, that such Securities shall cease to be Registrable Securities
when (i) a registration statement registering such Securities under the
Securities Act has been declared or becomes effective and such
Securities have been sold or otherwise transferred by the Holder
thereof pursuant to such effective registration statement; (ii) such
Securities are sold pursuant to Rule 144 under circumstances in which
any legend borne by such Securities relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is
removed or such Securities are eligible to be sold pursuant to Rule
144(k) or any successor provision; or (iii) such Securities shall cease
to be outstanding (including, in the case of the Debentures, upon
conversion into Shares).
(ff) "REGISTRATION DEFAULT" has the meaning assigned thereto
in Section 2(d).
(gg)"REGISTRATION EXPENSES" has the meaning assigned thereto
in Section 5.
(hh)"RULE 144," "RULE 405" and "RULE 415" means, in each case,
such rule as promulgated under the Securities Act.
(ii) "SECURITIES" means, collectively, the Debentures and the
Shares.
(jj) "SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(kk)"SHARES" means the shares of common stock of the Company,
par value $0.01 per share, into which the Debentures are convertible or
that have been issued upon any conversion from Debentures into common
stock of the Company.
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(ll) "SHELF REGISTRATION STATEMENT" means the shelf
registration statement referred to in Section 2(a), as amended or
supplemented by any amendment or supplement, including post-effective
amendments, and all materials incorporated by reference or explicitly
deemed to be incorporated by reference in such Shelf Registration
Statement.
(mm)"TRUST INDENTURE ACT" means the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
(nn)"TRUSTEE" shall have the meaning assigned such term in the
Indenture.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) The Company agrees to file under the Securities Act within
90 days after the Closing Date a shelf registration statement providing
for the registration of, and the sale on a continuous or delayed basis
(including through brokers and dealers) by the Holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that
may be adopted by the Commission. The Company agrees to use its
reasonable best efforts to cause the Shelf Registration Statement to
become or be declared effective within 180 days after the Closing Date
and to keep such Shelf Registration Statement continuously effective
until the earlier of (i) the second anniversary of the Closing Date,
and (ii) such time as there are no longer any Registrable Securities
outstanding (the "EFFECTIVE PERIOD"). At the time the Shelf
Registration Statement is declared effective, each Holder that became a
Notice Holder on or prior to the date ten (10) Business Days prior to
such time of effectiveness shall be named as a selling securityholder
in the Shelf Registration Statement and the related Prospectus in such
a manner as to permit such Holder to deliver such Prospectus to
purchasers of Registrable Securities in accordance with applicable law.
None of the Company's securityholders (other than Holders of
Registrable Securities) shall have the right to include any of the
Company's securities in the Shelf Registration Statement.
(b) The Company further agrees that it shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement or such amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities
Act; and (ii) not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading, and the Company agrees to furnish to the Holders
of the Registrable
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Securities copies of any supplement or amendment prior to its being
used or promptly following its filing with the Commission. If the Shelf
Registration Statement, as amended or supplemented from time to time,
ceases to be effective for any reason at any time during the Effective
Period (other than because all Registrable Securities registered
thereunder shall have been sold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company shall use
its reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof.
(c) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to the Shelf
Registration Statement and related Prospectus, it will do so only in
accordance with this Section 2(c) and Section 3(b). Each Holder of
Registrable Securities wishing to sell Registrable Securities pursuant
to the Shelf Registration Statement and related Prospectus agrees to
deliver a Notice and Questionnaire to the Company at least three (3)
Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration Statement. From and after the
date the Shelf Registration Statement is declared effective, the
Company shall, within five (5) Business Days after the date a Notice
and Questionnaire is delivered, (i) if required by applicable law, file
with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law,
file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file any
other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling security holder in the Shelf
Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to the Shelf Registration
Statement, use its reasonable best efforts to cause such post-effective
amendment to be declared effective under the Securities Act within 60
days of filing; (ii) provide such Holder copies of any documents filed
pursuant to Section 2(c)(i); and (iii) notify such Holder as promptly
as practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(c)(i); PROVIDED
that if such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such Notice
and Questionnaire and shall take the actions set forth in clauses (i),
(ii) and (iii) above upon expiration of the Deferral Period in
accordance with Section 3(b). Notwithstanding anything contained herein
to the contrary, the Company shall be under no obligation to name any
Holder that is not a Notice Holder as a selling securityholder in any
Shelf Registration Statement or related Prospectus; PROVIDED, HOWEVER,
that any Holder that becomes a Notice Holder pursuant to the provisions
of this Section 2(c) (whether or not such Holder was a Notice Holder at
the time the Shelf Registration Statement was declared effective) shall
be named as a selling securityholder in the Shelf Registration
Statement or related Prospectus in accordance with the requirements of
this Section 2(c).
(d) If any of the following events (any such event a
"REGISTRATION DEFAULT") shall occur, then liquidated damages (the
"ADDITIONAL AMOUNTS") shall become payable to Holders in respect of the
Securities as follows:
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(i) if the Shelf Registration Statement is not filed
with the Commission within 90 days following the Closing Date,
then commencing on the 91st day after the Closing Date,
Additional Amounts shall accrue on the principal amount of the
outstanding Debentures that are Registrable Securities and on
the Applicable Conversion Price of any outstanding Shares that
are Registrable Securities at a rate of 0.25% per annum for
the first 90 days from and including such 91st day and at a
rate of 0.5% per annum thereafter; or
(ii) if the Shelf Registration Statement is not
declared effective by the Commission within 180 days following
the Closing Date, then commencing on the 181st day after the
Closing Date, Additional Amounts shall accrue on the principal
amount of the outstanding Debentures that are Registrable
Securities and on the Applicable Conversion Price of any
outstanding Shares that are Registrable Securities at a rate
of 0.25% per annum for the first 90 days from and including
such 181st day and at a rate of 0.5% per annum thereafter; or
(iii) if the Company has failed to perform its
obligations set forth in Section 2(c) hereof within the time
periods required therein, then commencing on the first day
after the date by which the Company was required to perform
such obligations, Additional Amounts shall accrue on the
principal amount of the outstanding Debentures that are
Registrable Securities and on the Applicable Conversion Price
of any outstanding Shares that are Registrable Securities at a
rate of 0.25% per annum for the first 90 days and at a rate of
0.5% per annum thereafter;
(iv) if the Shelf Registration Statement has been
declared effective but such Shelf Registration Statement
ceases to be effective at any time during the Effective Period
(other than pursuant to Section 3(b) hereof), then commencing
on the day such Shelf Registration Statement ceases to be
effective, Additional Amounts shall accrue on the principal
amount of the outstanding Debentures that are Registrable
Securities and on the Applicable Conversion Price of any
outstanding Shares that are Registrable Securities at a rate
of 0.25% per annum for the first 90 days following such date
on which the Shelf Registration Statement ceases to be
effective and at a rate of 0.5% per annum thereafter; or
(v) if the aggregate duration of Deferral Periods in
any period exceeds the number of days permitted in respect of
such period pursuant to Section 3(b) hereof, then commencing
on the day the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted in respect of such
period (and again on the first day of any subsequent Deferral
Period during such period), Additional Amounts shall accrue on
the principal amount of the outstanding Debentures that are
Registrable Securities and on the Applicable Conversion Price
of any outstanding Shares that are Registrable Securities at a
rate of 0.25% per annum for the first 90 days and at a rate of
0.5% per annum thereafter;
PROVIDED, HOWEVER, that the Additional Amounts rate on the Securities
shall not exceed in the aggregate 0.5% per annum and shall not be
payable under more than one clause above
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for any given period of time, except that if Additional Amounts would
be payable under more than one clause above, but at a rate of 0.25% per
annum under one clause and at a rate of 0.5% per annum under the other,
then the Additional Amounts rate shall be the higher rate of 0.5% per
annum; PROVIDED FURTHER, however, that (1) upon the filing of the Shelf
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Shelf Registration Statement (in the case of
clause (ii) above), (3) upon the Company's performing its obligations
set forth in Section 2(c) hereof within the time periods required
therein (in the case of clause (iii) above), (4) upon the effectiveness
of the Shelf Registration Statement which had ceased to remain
effective (in the case of clause (iv) above), (5) upon the termination
of the Deferral Period that caused the limit on the aggregate duration
of Deferral Periods in a period set forth in Section 3(b) to be
exceeded (in the case of clause (v) above) or (6) upon the termination
of certain transfer restrictions on the Securities as a result of the
application of Rule 144(k) or any successor provision, Additional
Amounts on the Securities as a result of such clause, as the case may
be, shall cease to accrue.
Additional Amounts on the Securities, if any, will be
payable in cash on June 15 and December 15 of each year (the
"ADDITIONAL AMOUNTS PAYMENT DATE") to holders of record of outstanding
Registrable Securities on each preceding June 1 and December 1;
PROVIDED that if a Registration Default ends on a day other than an
Additional Amounts Payment Date, the Additional Amounts shall be
payable on the applicable Additional Amounts Payment Date to the
holders of record of the Registrable Securities as of the date on which
such Registration Default ends; AND PROVIDED FURTHER that any
Additional Amounts accrued with respect to any Debenture or portion
thereof redeemed or repurchased by the Company on a redemption date or
a repurchase date or converted for Shares on a conversion date prior to
the Additional Amounts Payment Date, shall, in any such event, be paid
instead to the Holder who submitted such Debenture or portion thereof
for redemption, repurchase or conversion on the applicable redemption
date, repurchase date or conversion date, as the case may be, on such
date (or promptly following the conversion date, in the case of
conversion). The date of determination of the Applicable Conversion
Price of any outstanding Shares that are Registrable Securities shall
be the Business Day immediately preceding the Additional Amounts
Payment Date; PROVIDED that in the case of an event of the type
described in clause (iii) above, such Additional Amounts shall be paid
only to the Holders that have delivered Notice and Questionnaires that
caused the Company to incur the obligations set forth in Section 2(c),
the non-performance of which is the basis of such Registration Default.
Following the cure of all Registration Defaults requiring the payment
of Additional Amounts by the Company to the Holders of Registrable
Securities pursuant to this Section, the accrual of Additional Amounts
will cease (without in any way limiting the effect of any subsequent
Registration Default requiring the payment of Additional Amounts by the
Company).
The Trustee shall be entitled, on behalf of Holders
of Securities, to seek any available remedy for the enforcement of this
Agreement, including for the payment of any Additional Amounts.
Notwithstanding the foregoing, the parties agree that the sole monetary
damages payable for a violation of the terms of this Agreement with
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respect to which Additional Amounts are expressly provided shall be as
set forth in this Section 2(d). Nothing shall preclude a Notice Holder
or Holder of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
3. REGISTRATION PROCEDURES.
The following provisions shall apply to the Shelf Registration
Statement filed pursuant to Section 2:
(a) The Company shall:
(i) prepare and file with the Commission a
registration statement with respect to the shelf registration
on any form which may be utilized by the Company and which
shall permit the disposition of the Registrable Securities in
accordance with the intended method or methods thereof, as
specified in writing by the Holders of the Registrable
Securities, and use its reasonable best efforts to cause such
registration statement to become effective in accordance with
Section 2(a) above;
(ii) before filing any Shelf Registration Statement
or Prospectus or any amendments or supplements thereto with
the Commission, furnish to the Initial Purchasers copies of
all such documents proposed to be filed and use reasonable
best efforts to reflect in each such document when so filed
with the Commission such comments as the Initial Purchasers
reasonably shall propose within three (3) Business Days of the
delivery of such copies to the Initial Purchasers;
(iii) use its reasonable best efforts to prepare and
file with the Commission such amendments and post-effective
amendments to the Shelf Registration Statement and file with
the Commission any other required document as may be necessary
to keep such Shelf Registration Statement continuously
effective until the expiration of the Effective Period; cause
the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of
the Securities Act applicable to it with respect to the
disposition of all Securities covered by such Shelf
Registration Statement during the Effective Period in
accordance with the intended methods of disposition by the
sellers thereof set forth in such Shelf Registration Statement
as so amended or such Prospectus as so supplemented;
(iv) promptly notify the Notice Holders of
Registrable Securities (A) when such Shelf Registration
Statement or the Prospectus included therein or any amendment
or supplement to the Prospectus or post-effective amendment
has been filed with the Commission, and, with respect to such
Shelf Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any request,
following the effectiveness of the Shelf Registration
Statement, by the Commission or any other Federal or state
governmental
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authority for amendments or supplements to the Shelf
Registration Statement or related Prospectus or for additional
information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Shelf Registration
Statement or the initiation or written threat of any
proceedings for that purpose, (D) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or written threat of any
proceeding for such purpose, (E) of the occurrence of (but not
the nature of or details concerning) any event or the
existence of any fact (a "MATERIAL EVENT") as a result of
which any Shelf Registration Statement shall contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(PROVIDED, HOWEVER, that no notice by the Company shall be
required pursuant to this clause (E) in the event that the
Company either promptly files a Prospectus supplement to
update the Prospectus or a Form 8-K or other appropriate
Exchange Act report that is incorporated by reference into the
Shelf Registration Statement, which, in either case, contains
the requisite information with respect to such Material Event
that results in such Shelf Registration Statement no longer
containing any untrue statement of material fact or omitting
to state a material fact necessary to make the statements
contained therein not misleading), (F) of the determination by
the Company that a post-effective amendment to the Shelf
Registration Statement will be filed with the Commission,
which notice may, at the discretion of the Company (or as
required pursuant to Section 3(b)), state that it constitutes
a Deferral Notice, in which event the provisions of Section
3(b) shall apply or (G) at any time when a Prospectus is
required to be delivered under the Securities Act, that the
Shelf Registration Statement, Prospectus, Prospectus amendment
or supplement or post-effective amendment does not conform in
all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder;
(v) prior to any public offering of the Registrable
Securities pursuant to the Shelf Registration Statement, use
reasonable best efforts to register or qualify or cooperate
with the Notice Holders in connection with the registration or
qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Notice Holder
reasonably requests in writing (which request may be included
in the Notice and Questionnaire); prior to any public offering
of the Registrable Securities pursuant to the Shelf
Registration Statement, use its reasonable best efforts to
keep each such registration or qualification (or exemption
therefrom) effective during the Effective Period in connection
with such Notice Holder's offer and sale of Registrable
Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things
necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner
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set forth in the Shelf Registration Statement and the related
Prospectus; PROVIDED, that the Company will not be required to
(i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any
action that would subject it to general service of process in
suits or to taxation in any such jurisdiction where it is not
then so subject;
(vi) use its reasonable best efforts to prevent the
issuance of, and if issued, to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration
Statement or any post-effective amendment thereto, and to lift
any suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction in which they have
been qualified for sale, in each case at the earliest
practicable date;
(vii) upon reasonable notice, for a reasonable period
prior to the filing of the Shelf Registration Statement, and
throughout the Effective Period, make available at reasonable
times at the Company's principal place of business or such
other reasonable place for inspection by a representative
appointed by the Notice Holders in connection with an
underwritten offering (or any underwriter, placement agent or
counsel acting on their behalf), who shall certify to the
Company that they have a current intention to sell their
Registrable Securities pursuant to the Shelf Registration
Statement, such financial and other information and books and
records of the Company, and cause the officers, directors,
employees and independent certified public accountants of the
Company to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the counsel to such Notice
Holders, to conduct a reasonable "due diligence"
investigation; PROVIDED, HOWEVER, that each such
representative appointed by the Notice Holders in connection
with an underwritten offering shall be required to maintain in
confidence and not to 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 the Shelf Registration Statement or
otherwise) or (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 and the opportunity
to contest the same or seek an appropriate protective order);
(viii) if reasonably requested by the Initial
Purchasers or any Notice Holder, promptly incorporate in a
Prospectus supplement or post-effective amendment to the Shelf
Registration Statement such information as the Initial
Purchasers or such Notice Holder shall, on the basis of a
written opinion of nationally-recognized counsel experienced
in such matters, determine to be required to be included
therein by applicable law and make any required filings of
such Prospectus supplement or such post-effective amendment;
PROVIDED, that the Company shall not be required to take any
actions under this Section 3(a)(viii)
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that are not, in the reasonable opinion of counsel for the
Company, in compliance with applicable law;
(ix) promptly furnish to each Notice Holder and the
Initial Purchasers, upon their request and without charge, at
least one (1) conformed copy of the Shelf Registration
Statement and any amendments thereto, including financial
statements but excluding schedules, all documents incorporated
or deemed to be incorporated therein by reference and all
exhibits (unless requested in writing to the Company by such
Notice Holder or the Initial Purchasers, as the case may be);
and
(x) during the Effective Period, deliver to each
Notice Holder in connection with any sale of Registrable
Securities pursuant to the Shelf Registration Statement,
without charge, as many copies of the Prospectus relating to
such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such
Notice Holder may reasonably request; and the Company hereby
consents (except during such periods that a Deferral Notice is
outstanding and has not been revoked) to the use of such
Prospectus or each amendment or supplement thereto by each
Notice Holder in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any
amendment or supplement thereto in the manner set forth
therein.
(b) Upon (A) the issuance by the Commission of a stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any Material Event as a
result of which the Shelf Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any Prospectus shall contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or (C) the occurrence or existence of any corporate
development that, in the discretion of the Company, makes it
appropriate to suspend the availability of the Shelf Registration
Statement and the related Prospectus, the Company will (i) in the case
of clause (B) above, subject to the third sentence of this provision,
as promptly as practicable prepare and file a post-effective amendment
to such Shelf Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file
any other required document that would be incorporated by reference
into such Shelf Registration Statement and Prospectus so that such
Shelf Registration Statement does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
such Prospectus does not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to the Shelf
Registration Statement, subject to the third sentence of this
11
provision, use reasonable best efforts to cause it to be declared
effective as promptly as is practicable, and (ii) give notice to the
Notice Holders that the availability of the Shelf Registration
Statement is suspended (a "DEFERRAL NOTICE"). Upon receipt of any
Deferral Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Shelf Registration Statement until such
Notice Holder's receipt of copies of the supplemented or amended
Prospectus provided for in clause (i) above, or until it is advised in
writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The Company will use its reasonable best efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above,
as promptly as practicable, (y) in the case of clause (B) above, as
soon as, in the sole judgment of the Company, public disclosure of such
Material Event would not be prejudicial to or contrary to the interests
of the Company or, if necessary to avoid unreasonable burden or
expense, as soon as practicable thereafter and (z) in the case of
clause (C) above, as soon as, in the discretion of the Company, such
suspension is no longer appropriate; PROVIDED that the period during
which the availability of the Shelf Registration Statement and any
Prospectus is suspended (the "DEFERRAL PERIOD"), without the Company
incurring any obligation to pay Additional Amounts pursuant to Section
2(d), shall not exceed forty-five (45) days in any three (3) month
period and one hundred and twenty (120) days in the aggregate in any
twelve (12) month period.
(c) Each Holder of Registrable Securities agrees that upon
receipt of any Deferral Notice from the Company, such Holder shall
forthwith discontinue (and cause any placement or sales agent or
underwriters acting on their behalf to discontinue) the disposition of
Registrable Securities pursuant to the registration statement
applicable to such Registrable Securities until such Holder (i) shall
have received copies of such amended or supplemented Prospectus and, if
so directed by the Company, such Holder shall 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 at the time of receipt of such notice or
(ii) shall have received notice from the Company that the disposition
of Registrable Securities pursuant to the Shelf Registration may
continue.
(d) The Company may require each Holder of Registrable
Securities as to which any registration pursuant to Section 2(a) is
being effected to furnish to the Company such information regarding
such Holder and such Holder's intended method of distribution of such
Registrable 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 any
inaccuracy or change in information previously furnished by such Holder
to the Company or of 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 disposition of such
Registrable Securities or omits to state any material fact regarding
such Holder or such Holder's intended method of disposition of such
Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading, and promptly to furnish to
the Company any additional
12
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 disposition of such Registrable
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.
(e) The Company shall comply with all applicable rules and
regulations of the Commission and make generally available to its
securityholders earning statements (which need not be audited)
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of the Shelf
Registration Statement, which statements shall cover said 12-month
periods.
(f) The Company shall provide CUSIP numbers for all
Registrable Securities covered by the Shelf Registration Statement not
later than the effective date of such Shelf Registration Statement and
provide the Trustee for the Debentures and the transfer agent for the
Shares with printed certificates for the Registrable Securities that
are in a form eligible for deposit with The Depository Trust Company.
(g) The Company shall use its reasonable best efforts to
provide such information as is required for any filings required to be
made with the National Association of Securities Dealers, Inc.
(h) Until the expiration of two years after the Closing Date,
the Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144) to, resell any of the Securities that have been
reacquired by any of them except pursuant to an effective registration
statement under the Securities Act.
(i) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act in a timely manner.
(j) The Company shall enter into such customary agreements and
take all such other necessary and lawful actions in connection
therewith (including those requested by the Majority Holders of the
Registrable Securities being sold) in order to expedite or facilitate
disposition of such Registrable Securities.
4. HOLDER'S OBLIGATIONS.
Each Holder agrees, by acquisition of the Registrable Securities, that
no Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to the Shelf Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section 2(c)
hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other
13
information regarding such Notice Holder and the distribution of such
Registrable Securities as may be required to be disclosed in the Shelf
Registration Statement under applicable law or pursuant to Commission comments.
Each Holder further agrees not to sell any Registrable Securities pursuant to
the Shelf Registration Statement without delivering, or causing to be delivered,
a Prospectus to the purchaser thereof and, following termination of the
Effective Period, to notify the Company, within 10 business days of a request by
the Company, of the amount of Registrable Securities sold pursuant to the Shelf
Registration Statement and, in the absence of a response, the Company may assume
that all of the Holder's Registrable Securities were so sold.
5. REGISTRATION EXPENSES.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Agreement, including (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities for offering and sale under
the State securities and Blue Sky laws referred to in Section 3(a)(v) hereof,
including reasonable fees and disbursements of one counsel for the placement
agent or underwriters, if any, in connection with such qualifications, (c) all
expenses relating to the preparation, printing, distribution and reproduction of
the Shelf Registration Statement, the related Prospectus, each amendment or
supplement to each of the foregoing, the certificates representing the
Securities and all other documents relating hereto, (d) fees and expenses of the
Trustee under the Indenture, any escrow agent or custodian, and of the registrar
and transfer agent for the Shares, (e) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance) and (f) reasonable fees, disbursements and
expenses of one counsel for the Holders of Registrable Securities retained in
connection with any underwritten offering of the Registrable Securities pursuant
to the Shelf Registration Statement, as selected by the Company (unless
reasonably objected to by the Majority Holders of the Registrable Securities
being registered, in which case the Majority Holders shall select such counsel
for the Holders), and fees, expenses and disbursements of any other Persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "REGISTRATION EXPENSES"). To the extent that any
Registration Expenses are incurred, assumed or paid by any Holder of Registrable
Securities or any placement agent therefor or underwriter thereof, the Company
shall reimburse such Person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a documented request
therefor. Notwithstanding the foregoing, the Holders of the Registrable
Securities being registered shall pay all placement agent fees and commissions
and underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such Holders (severally or jointly), other than
the counsel and experts specifically referred to above.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Holder of Securities covered by any Shelf Registration Statement and
each Person who controls any such Holder within the meaning of either
the Securities Act or the Exchange Act against
14
any and all losses, claims, damages or liabilities, joint or several,
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,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement as
originally filed or in any amendment thereof, or in any preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading (in the case
of any preliminary Prospectus or the Prospectus, in the light of the
circumstances under which they were made), and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by it in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity
with written information relating to the party claiming indemnification
furnished to the Company by or on behalf of the party claiming
indemnification specifically for inclusion therein; PROVIDED, FURTHER,
HOWEVER, that with respect to any such untrue statement in or omission
from any amended or supplemented Prospectus (excluding the correcting
amendment or supplement), the indemnity agreement contained in this
Section 6(a) shall not inure to the benefit of any person indemnified
under this Section 6(a) from whom the person asserting any such loss,
claim, damage, liability or action received Registrable Securities to
the extent that such loss, claim, damage, liability or action of or
with respect to such indemnified person results from the fact that both
(A) a copy of the Prospectus (together with any correcting amendments
or supplements) was not sent or given to such asserting person at or
prior to the written confirmation of the sale of such Registrable
Securities to such person and (B) the untrue statement in or omission
from any Prospectus was corrected in an amendment or supplement thereto
and the Prospectus (as amended or supplemented) does not contain any
other untrue statement or omission or alleged untrue statement or
omission of a material fact, unless, in either case, such failure to
deliver the final Prospectus was a result of non-compliance by the
Company with Section 3(a)(ix) or (x) hereof. This indemnity agreement
shall be in addition to any liability that the Company may otherwise
have.
The Company also agrees to indemnify as provided in this
Section 6(a) or contribute as provided in Section 6(d) hereof to Losses
of each underwriter, if any, of Securities registered under the Shelf
Registration Statement, its directors, officers, employees, Affiliates
or agents and each Person who controls such underwriter on
substantially the same basis as that of the indemnification of the
selling Holders provided in this paragraph (a) and shall, if requested
by any Holder, enter into an underwriting agreement reflecting such
agreement.
(b) Each Holder of securities covered by the Shelf
Registration Statement severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its
officers who signs the Shelf Registration Statement and each Person
15
who controls the Company within the meaning of either the Securities
Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each such Holder, but only with reference to
written information relating to such Holder furnished to the Company by
or on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise
have.
(c) Promptly after receipt by an indemnified party under this
Section 6 or notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses; and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any
separate counsel, other than local counsel if not appointed by the
indemnifying party, retained by the indemnified party or parties except
as set forth below); PROVIDED, HOWEVER, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel (including local counsel) to
represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest; (ii) the actual
or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action; or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, 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.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable or insufficient to hold
harmless an indemnified party in respect
16
of any losses, claims, damages or liabilities referral to therein, then
each applicable indemnifying party shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending such loss, claim, liability,
damage or action) (collectively "LOSSES") to which such indemnified
party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial
Placement and the Shelf Registration Statement which resulted in such
Losses; PROVIDED, HOWEVER, that in no case shall any subsequent Holder
of any Securities be responsible, in the aggregate, for any amount in
excess of the Initial Purchasers' discount or commission applicable to
such Security from the Initial Placement, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or
commission applicable to the securities purchased by such underwriter
under the Shelf Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified
party shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the
other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the Initial Placement (before
deducting expenses). Benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts and commissions
as set forth in the Offering Memorandum, and benefits received by any
other Holders shall be deemed to be equal to the value of receiving
Securities registered under the Securities Act. Benefits received by
any underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Shelf Registration Statement which
resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on
the other hand, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The parties agree that it would not be just and
equitable if contribution were determined by PRO RATA allocation (even
if the Holders were treated as one entity for such purpose) or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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. For purposes of this Section 6, each
Person who controls a Holder within the meaning of either the
Securities Act or the Exchange Act shall have the same rights to
contribution as such Holder, and each Person who controls the Company
within the meaning of either the Securities Act or the Exchange Act,
each officer of the Company who shall have signed the Shelf
Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
17
(e) The provisions of this Section 6 shall remain in full
force and effect, regardless of any investigation made by or on behalf
of any Holder or the Company or any of the indemnified Persons referred
to in this Section 6, and shall survive the sale by a Holder of
securities covered by the Shelf Registration Statement.
7. RULE 144.
The Company covenants to the Holders of Registrable Securities that the
Company shall use its reasonable best efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder, 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 limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any Holder of Registrable Securities in connection with that Holder's
sale pursuant to Rule 144, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements.
8. INCONSISTENT AGREEMENTS.
The Company has not entered into, and agrees not to enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or that otherwise conflict with the provisions
hereof.
9. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
writings referred to herein (including the Indenture) or delivered
pursuant hereto which form a part hereof contain the entire
understanding of the parties and supersedes all prior agreements and
understandings among the parties with respect to its subject matter.
This Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively) only by a written instrument
duly executed by the Company and the Majority Holders of the
Registrable Securities at the time outstanding.
(b) NOTICES. All notices, requests, claims, demands, waivers
and other communications hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand, if delivered
personally or by courier, or three days after being deposited in the
mail (registered or certified mail, postage prepaid, return receipt
requested) as follows:
(i) If to the Company, to it at ▇▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel;
18
(ii) If to the Initial Purchasers, to the address set
forth in the Purchase Agreement; and
(iii) If to a Holder, to the address of such Holder
set forth in the security register, the Notice and
Questionnaire or other records of the Company,
or to such other address as the Company, the Initial Purchasers or any
such Holder may have furnished to the other parties in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(c) REMEDIES. Nothing shall preclude a Notice Holder or Holder
of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
(d) SUCCESSORS. This Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. In the event that any
transferee of any Holder of Registrable Securities shall acquire
Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without
any further writing or action of any kind, be deemed a party hereto for
all purposes and such Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by
and to perform, all of the applicable terms and provisions of this
Agreement.
(e) SURVIVAL. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results
thereof) made by or on behalf of any Holder of Registrable Securities,
any director, officer or partner of such Holder, any agent or
underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery
of and payment for the Registrable Securities pursuant to the Purchase
Agreement and the transfer and registration of Registrable Securities
by such Holder.
(f) APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
(g) HEADINGS. The descriptive headings of the several Sections
and paragraphs of this Agreement are inserted for convenience only, do
not constitute a part of this Agreement and shall not affect in any way
the meaning or interpretation of this Agreement.
(h) COUNTERPARTS. This Agreement may be executed by the
parties in counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
19
(i) SEVERABILITY. In the event that any one of more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(j) SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent
or approval of Holders of a specified percentage of Securities is
required hereunder, Securities held by the Company or its Affiliates
(other than subsequent Holders of Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
Agreed to and accepted as of the date referred to above.
LINCARE HOLDINGS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
Acting on behalf of itself and as the
representative of the Initial Purchasers
By: /s/ ▇▇▇▇▇ ▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Vice President
