1
EXHIBIT 10.b
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of May 13, 1998
by and among
Oxford Health Plans, Inc.
and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of May 13, 1998 by and among Oxford Health Plans, Inc. (the
"Company") and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation (the "Initial
Purchaser"), who has agreed to purchase the Company's 11% Senior Notes due 2005
(the "Series A Senior Notes") pursuant to the Purchase Agreement (as defined
below).
This Agreement is made pursuant to the Purchase Agreement, dated May 7,
1998 (the "Purchase Agreement"), by and among the Company and the Initial
Purchaser. In order to induce the Initial Purchaser to purchase the Senior
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchaser as set forth in Section 9(m) of the
Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Legal Holiday.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Series B Senior Notes to be issued in the Exchange
Offer, (b) the maintenance of such Registration Statement as continuously
effective and the keeping open of the Exchange Offer for a period not less than
the minimum period required pursuant to Section 3(b) hereof and (c) the
delivery, by the Company to the Registrar under the Indenture, of Series B
Senior Notes in the same aggregate principal amount as the aggregate principal
amount of Series A Senior Notes tendered by Holders thereof pursuant to the
Exchange Offer.
Damages Payment Date: With respect to the Series A Senior Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
3
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Securities
Act of the Series B Senior Notes pursuant to the Exchange Offer Registration
Statement pursuant to which the Company shall offer the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange all such
outstanding Transfer Restricted Securities for Series B Senior Notes in an
aggregate principal amount equal to the aggregate principal amount of Transfer
Restricted Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser
proposes to sell the Series A Senior Notes to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Securities Act, to
persons who are not U.S. persons, as such term is defined in Regulation S under
the Securities Act, in transactions conforming with such Regulation S and to
certain institutional "accredited investors," as such term is defined in Rule
501(a)(1), (2), (3) and (7) of Regulation D under the Act.
Holders: As defined in Section 2 hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of May 7, 1998, among the Company
and The Chase Manhattan Bank, as trustee (the "Trustee"), pursuant to which the
Senior Notes are to be issued, as such Indenture is amended or supplemented from
time to time in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Senior
Notes.
Investment Agreement: The agreement entered into on February 23, 1998
by and between the Company and TPG Oxford LLC, an affiliate of Texas Pacific
Group.
Legal Holiday: A Saturday, a Sunday or a day on which federal offices
or banking institutions in the City of New York, in the city of the Corporate
Trust Office of the Trustee, or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday, payment may be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
NASD: National Association of Securities Dealers, Inc.
3
4
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date relating to
Senior Notes, each Person who is a Holder of Senior Notes on the record date
with respect to the Interest Payment Date on which such Damages Payment Date
shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Series B Senior Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
Senior Notes: The Series A Senior Notes and the Series B Senior Notes.
Series B Senior Notes: The Company's 11% Series B Senior Notes due 2005
to be issued pursuant to the Indenture in the Exchange Offer.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Senior Note, until the earliest to
occur of (a) the date on which such Senior Note is exchanged in the Exchange
Offer by a Person other than a Broker-Dealer for a Series B Senior Note and is
entitled to be resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Securities Act, (b) following the
exchange by a Broker-Dealer in the Exchange Offer of a Senior Note for a Series
B Senior Note, the date on which such Series B Senior Note is sold to a
purchaser who receives from such Broker-Dealer on or prior to the date of such
sale a copy of the prospectus contained in the Exchange Offer Registration
Statement, (c) the date on which such Senior Note effectively has been
registered under the Securities Act and disposed of in accordance
4
5
with the Shelf Registration Statement or (d) the date on which such Senior Note
is distributed to the public pursuant to Rule 144 under the Securities Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company shall (i) cause to be filed with the
Commission the Exchange Offer Registration Statement on or prior to the 270th
day after the Closing Date, provided, however, that, in the event the Board of
Directors of the Company determines in good faith that an extension of the
filing date beyond such 270th day is in the best interest of the Company, the
filing day may be extended to the earliest date thereafter to which the Board
determines it may be extended consistent with the best interest of the Company,
but in no event later than the earlier of the filing of the registration
statement required by the Investment Agreement or the 360th day after the
Closing Date, (ii) use its best efforts to cause such Exchange Offer
Registration Statement to become effective at the earliest possible time, (iii)
in connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause such
Exchange Offer Registration Statement to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Securities Act and (C) cause all
necessary filings, if any, in connection with the registration and qualification
of the Series B Senior Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) use its best efforts to issue on or prior to the 30th Business Day after
the date on which the Exchange Offer Registration Statement is declared
effective (the "Exchange Offer Effectiveness Date") Series B Senior Notes in
exchange for all Series A Senior Notes tendered prior thereto in the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the Series B Senior Notes to be offered in exchange for the
Series A Senior Notes that are Transfer Restricted Securities and to permit
resales of Senior Notes held by Broker-Dealers as contemplated by Section 3(c)
below.
(b) The Company shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. The Company shall
5
6
cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Series B Senior Notes shall be
included in the Exchange Offer Registration Statement. The Company shall use its
best efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 Business Days thereafter.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Series A Senior Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Series A Senior Notes pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Securities Act and, consequently, must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the Series
B Senior Notes received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such resales by Broker-Dealers that the Commission
may require in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Senior Notes held by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Senior Notes acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities, and to ensure that such Exchange Offer Registration
Statement conforms with the requirements of this Agreement, the Securities Act
and the policies, rules and regulations of the Commission as announced from time
to time, for a period of one year from the date on which the Exchange Offer is
Consummated.
The Company shall promptly provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request, and in no
event later than one day after such request, at any time during such one-year
period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
Exchange Offer Registration Statement with respect to the Series B Senior Notes
or permitted to consummate the Exchange Offer because the Exchange Offer is not
permitted by
6
7
applicable law (after the procedures set forth in Section 6(a) below have been
complied with) or Commission policy or (ii) if any Holder of Transfer Restricted
Securities shall notify the Company prior to the 20th Business Day following the
Consummation of the Exchange Offer that (A) such Holder was prohibited by law or
Commission policy from participating in the Exchange Offer, (B) such Holder may
not resell the Series B Senior Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (C) such Holder is a Broker-Dealer and holds Series A
Senior Notes acquired directly from the Company or one of its affiliates, then
the Company shall (x) cause to be filed on or prior to 30 days after the date on
which the Company determines that it is not required to file the Exchange Offer
Registration Statement pursuant to clause (i) above or 30 days after the date on
which the Company receives the notice specified in clause (ii) above a shelf
registration statement pursuant to Rule 415 under the Securities Act (which may
be an amendment to the Exchange Offer Registration Statement (in either event,
the "Shelf Registration Statement")), relating to all Transfer Restricted
Securities the Holders of which shall have provided the information required
pursuant to Section 4(b) hereof, and shall (y) use its best efforts to cause
such Shelf Registration Statement to become effective on or prior to 90 days
after the date on which the Company becomes obligated to file such Shelf
Registration Statement. If, after the Company has filed an Exchange Offer
Registration Statement which satisfies the requirements of Section 3(a) above,
the Company is required to file and make effective a Shelf Registration
Statement solely because the Exchange Offer shall not be permitted under
applicable federal law, then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x) above. Such
an event shall have no effect on the requirements of clause (y) above, or on the
Effectiveness Target Date as defined in Section 5 below. The Company shall use
its best efforts to keep the Shelf Registration Statement discussed in this
Section 4(a) continuously effective, supplemented and amended as required by and
subject to the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for sales of Transfer Restricted
Securities by the Holders thereof entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years (as extended
pursuant to Section 6(c)(i)) following the date on which such Shelf Registration
Statement first becomes effective under the Securities Act.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 Business Days after receipt of a request
therefor, such information specified in item 507 of Regulation S-K under the
Securities Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. Each Holder as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
7
8
information previously furnished to the Company by such Holder not materially
misleading.
(c) Restrictions on Sale of Certain Securities by Others. The Company
agrees not to, and to use its best efforts to cause its affiliates not to,
offer, sell, contract to sell or grant any option to purchase or otherwise
transfer or dispose of any debt security issued by the Company or any security
convertible into or exchangeable or exercisable for any such debt security,
including a sale pursuant to Rule 144 under the Securities Act, during the
30-day period beginning on the closing date of each Underwritten Offering made
pursuant to the Shelf Registration Statement (except as part of such
Underwritten Registration).
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) the Company has failed either to use its best efforts to
have such Registration Statement declared effective by the Commission pursuant
to Section 3 of this Agreement or to have such Registration Statement declared
effective by the Commission prior to the date specified for such effectiveness
in Section 4 of this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 30 Business Days of the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) subject to the provisions of Section 6(c)(i) below, any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself immediately declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Company hereby agrees to pay
liquidated damages to each Holder of Transfer Restricted Securities, with
respect to the first 90-day period immediately following the occurrence of such
Registration Default, in an amount equal to $.05 per week per $1,000 principal
amount of Transfer Restricted Securities held by such Holder for each week or
portion thereof that the Registration Default continues. The amount of
liquidated damages payable to each Holder shall increase by an additional $.05
per week per $1,000 principal amount of Transfer Restricted Securities held by
such Holder for each subsequent 90-day period until all Registration Defaults
have been cured, up to a maximum amount of liquidated damages of $.50 per week
per $1,000 principal amount of Transfer Restricted Securities held by such
Holder. All accrued liquidated damages shall be paid by the Company on each
Damages Payment Date (i) to the Global Note Holder by wire transfer of
immediately available funds and (ii) to Holders of Certificated Securities by
wire transfer to the accounts specified by them or by mailing checks to their
registered addresses if no such accounts have been specified, as provided in the
Indenture. Following the cure of all Registration Defaults, the accrual of
liquidated damages will cease.
All obligations of the Company set forth in the preceding paragraph
that are
8
9
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such security shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall comply with all applicable provisions of
Section 6(c) below, shall use its best efforts to effect such exchange and to
permit the sale of Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall comply with
all of the following provisions:
(i) If, following the date hereof there has been published a change
in Commission policy with respect to exchange offers such as the Exchange
Offer, such that in the reasonable opinion of counsel to the Company there
is a substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the Company
to Consummate an Exchange Offer for such Series A Senior Notes. The Company
hereby agrees to pursue the issuance of such a decision to the Commission
staff level. In connection with the foregoing, the Company hereby agrees to
take all such other actions as are requested by the Commission or otherwise
required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should be permitted
and (C) diligently pursuing a resolution (which need not be favorable) by
the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company, prior
to the Consummation of the Exchange Offer, a written representation to the
Company (which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that (A) it is
not an affiliate of the Company, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Series B Senior Notes to be
issued in the Exchange Offer and (C) it is acquiring the Series B Senior
Notes in its ordinary course of business. Each Holder hereby acknowledges
and agrees (X) that any Broker-Dealer and any such Holder using the
Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted
in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (including, if applicable, any no-action letter
9
10
obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction and (Y) that such a
secondary resale transaction must be covered by an effective registration
statement containing the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-K if the resales are of
Series B Senior Notes obtained by such Holder in exchange for Series A
Senior Notes acquired by such Holder directly from the Company or an
Affiliate thereof.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall provide, if requested by the
Commission, a supplemental letter to the Commission (A) stating that the
Company is registering the Exchange Offer in reliance on the position of
the Commission enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and,
if applicable, any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that the Company has not entered into any
arrangement or understanding with any Person to distribute the Series B
Senior Notes to be received in the Exchange Offer and that, to the best of
the Company's information and belief, each Holder participating in the
Exchange Offer is acquiring the Series B Senior Notes in its ordinary
course of business and has no arrangement or understanding with any Person
to participate in the distribution of the Series B Senior Notes received in
the Exchange Offer and (C) including any other undertaking or
representation required by the Commission as set forth in any no-action
letter obtained pursuant to clause (i) above.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all of the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof, and pursuant
thereto the Company will prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions hereof.
(c) General Provisions. In connection with any Registration Statement
and any related Prospectus required by this Agreement in order to permit the
sale or resale of Transfer Restricted Securities (including, without limitation,
any Registration Statement and the related Prospectus required to permit resales
of Senior Notes by Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 or 4 of this Agreement, as applicable.
Upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be
10
11
effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company promptly shall file an
appropriate amendment to such Registration Statement, in the case of clause
(A), correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use its best efforts to cause such amendment to
be declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration
Statement have been sold; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Securities Act, and to comply fully with the
applicable provisions of Rules 424, 430A and 462, as applicable, under the
Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, confirm such advice in writing,
(A) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Registration Statement
or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in
the Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time
the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company shall use its best efforts
to obtain the withdrawal or lifting of
11
12
such order at the earliest possible time;
(iv) furnish to the Initial Purchaser, each of the selling
Holders named in any Registration Statement or Prospectus and each of the
underwriter(s) in connection with such sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration Statement
or Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Holders and underwriter(s) in
connection with such sale, if any, for a period of at least five Business
Days, and the Company will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which a selling Holder of Transfer Restricted Securities
covered by such Registration Statement or the underwriter(s) in connection
with such sale, if any, shall reasonably object within five Business Days
after the receipt thereof;
(v) promptly prior to the filing of any document that is to
be incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s) in connection with such sale, if any, make the Company's
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition pursuant
to such Registration Statement, and any attorney or accountant retained by
such selling Holders or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of the Company and
cause the Company's officers, directors and employees to supply all
information reasonably requested by any such Holder, underwriter, attorney
or accountant in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and prior
to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s) in connection with such sale, if any, promptly include in
any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling
Holders and underwriter(s), if any, reasonably may request to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being
sold to any such underwriter(s), the purchase price being paid therefor and
any other terms of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is
notified of the matters to be included in such
12
13
Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
Senior Notes covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s) in connection with such sale, if any, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company hereby consents
to the use of the Prospectus and any amendment or supplement thereto by
each of the selling Holders and each of the underwriter(s) in connection
with such sale, if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto;
(xi) enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such extent
as may be requested by the Initial Purchaser or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, the Company shall:
(A) furnish to the Initial Purchaser, each selling Holder and each
underwriter in connection with such sale, if any, and to each
Restricted Broker Dealer in such substance and scope as they may
request and as are customarily made by issuers to underwriters in
primary underwritten offerings, upon the date of the Consummation of
the Exchange Offer and, if applicable, upon the effectiveness of the
Shelf Registration Statement:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by (x) the
President or any Executive Vice President and (y) the principal
financial officer of the Company, confirming, as of the date
thereof, the matters set forth in paragraphs (a), (b), (f) and (j)
of Section 9 of the Purchase Agreement and such other matters as
such parties may reasonably request;
13
14
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Company covering the matters set forth in paragraph (h) of Section
9 of the Purchase Agreement and such other matters as the Holders
and/or managing underwriter(s) reasonably may request, and in any
event including a statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company, representatives of the independent
public accountants for the Company, the Initial Purchaser's
representatives and the Initial Purchaser's counsel in connection
with the preparation of such Registration Statement and the
related Prospectus and have considered the matters required to be
stated therein and the statements contained therein, although such
counsel has not independently verified the accuracy, completeness
or fairness of such statements; and that on the basis of the
foregoing (relying upon facts provided to such counsel by officers
and other representatives of the Company and without independent
check or verification), that no facts came to such counsel's
attention that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration Statement or
any post-effective amendment thereto became effective, and, in the
case of the Exchange Offer Registration Statement, as of the date
of Consummation of the Exchange Offer, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case of the
opinion dated the date of Consummation of the Exchange Offer, as
of the date of Consummation, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Without
limiting the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data included
in any Registration Statement contemplated by this Agreement or
the related Prospectus; and
(3) customary comfort letters, dated as of the date of
Consummation of the Exchange Offer or the date of effectiveness of
the Shelf Registration Statement, as the case may be, from the
Company's past and present independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with
primary underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to Section 7(l) of
the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement,
14
15
if any, the indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as
reasonably may be requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
pursuant to this clause (xi), if any.
The provisions of this clause (A) shall be applicable at each closing
under such underwriting or similar agreement, as and to the extent required
thereunder and, if at any time the representations and warranties of the
Company contemplated in clause (A)(1) above cease to be true and correct,
the Company promptly shall so advise the Initial Purchaser and the
underwriter(s) in connection with such sale, if any, and each selling
Holder and each Restricted Broker Dealer and, if requested by such Persons,
shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s) in
connection with such sale, if any, and their respective counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s) may request and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Shelf Registration Statement; provided, however, that the
Company shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement,
in any jurisdiction where it is not now so subject;
(xiii) upon the request of any Holder of Series A Senior Notes
covered by the Shelf Registration Statement, issue Series B Senior Notes,
having an aggregate principal amount equal to the aggregate principal
amount of Series A Senior Notes surrendered to the Company by such Holder
in exchange therefor or being sold by such Holder, such Series B Senior
Notes to be registered in the name of such Holder or in the name of the
purchaser(s) of such Senior Notes, as the case may be; in return, the
Series A Senior Notes held by such Holder shall be surrendered to the
Company for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s) in connection with such sale, if any, to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends,
and enable such Transfer Restricted Securities to be in such denominations
and registered in such names as the Holders or the underwriter(s) in
connection with such sale, if any, may request at least two Business Days
prior to any sale of Transfer Restricted Securities;
15
16
(xv) use its best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary in order to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the disposition of
such Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above;
(xvi) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities, and provide the Trustee under
the Indenture with printed certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with the Depository
Trust Company;
(xviii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use its best efforts to cause such Registration Statement to
become effective and approved by such governmental agencies or authorities
as may be necessary to enable the Holders selling Transfer Restricted
Securities to Consummate the disposition of such Transfer Restricted
Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to their security holders, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering or (B) if not
sold to underwriters in such an offering, beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of
the Registration Statement;
(xx) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement required
by this Agreement, and, in connection therewith, cooperate with the Trustee
and the Holders of Senior Notes to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance with
the terms of the TIA; and execute and use its best
16
17
efforts to cause the Trustee to execute, all documents that may be required
to effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified in a
timely manner;
(xxi) use its best efforts to cause all Transfer Restricted
Securities covered by the Registration Statement to be listed on each
securities exchange on which similar securities issued by the Company are
then listed if requested by the Holders of a majority of the outstanding
shares or aggregate principal amount of Series A Senior Notes, or the
underwriters, if any; and
(xxii) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of Section
13 and Section 15(d) of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of the notice referred to in Section 6(c)(i) or any notice
from the Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is advised in
writing (the "Advice") by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus. If so directed by the Company,
each Holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Securities that was current at the
time of receipt of either such notice. In the event the Company shall give any
such notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including
the date when each selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xvi) hereof or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by the Initial
Purchaser or Holder with the NASD (and, if applicable, the fees and expenses of
any "qualified independent underwriter" and its counsel that may be required by
the rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Series B
Senior Notes to be issued in the Exchange Offer and printing of
17
18
Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company and, subject to Section 7(b) below, the
Holders of Transfer Restricted Securities; (v) all application and filing fees
in connection with listing Senior Notes on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each Holder
and (ii) each person, if any, who controls (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) any Holder (any of the
persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person") and (iii) the respective officers, directors, partners,
employees, representatives and agents of each Holder and each controlling person
(any person referred to in clause (i), (ii) or (iii) may hereinafter be referred
to as an "Indemnified Holder") to the fullest extent lawful, from and against
any and all losses, claims, damages, judgments, actions and expenses (including
without limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Person) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
preliminary Prospectus or Prospectus (including any amendments thereof and
supplements thereto), or by any omission or alleged omission to state therein a
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, except insofar as such losses, claims, damages, liabilities or
expenses are finally judicially determined by a competent court to have been
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to an Indemnified Holder furnished in writing to the Company by such
Indemnified Holder expressly for use therein. The Company shall notify each
Indemnified Holder promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or litigation in
connection with the matters addressed by this Agreement which involves the
Company or an Indemnified Holder.
(b) In case any action or proceeding (including any governmental
regulatory
18
19
investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Company, such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Company in writing (provided,
that the failure to give such notice shall not relieve the Company of its
obligations pursuant to this Agreement). Such Indemnified Holder shall have the
right to employ its own counsel (in addition to any local counsel) in any such
action and the fees and expenses of such counsel shall be paid, as incurred, by
the Company (regardless of whether it is ultimately determined that an
Indemnified Holder is not entitled to indemnification hereunder). The Company
shall not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for the Indemnified Holders, which
firm shall be designated by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
if Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation is then an Indemnified
Holder and otherwise by the Holders. The Company shall be liable for any
settlement of any such action or proceeding effected with the Company's prior
written consent, which consent will not be unreasonably withheld, and the
Company agrees to indemnify and hold harmless each Indemnified Holder from and
against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Company.
Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Holder shall have requested an indemnifying party to reimburse the
Indemnified Holder for fees and expenses of counsel as contemplated by the
second sentence of this paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than twenty business days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the Indemnified Holder in
accordance with such request prior to the date of such settlement. The Company
shall not, without the prior written consent of an Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to terminate
any pending or threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
any Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of such Indemnified
Holder from all Liabilities arising out of such action, claim, litigation or
proceeding.
(c) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company, and its directors,
officers, and any person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the respective officers,
directors, partners, employees, representatives and agents of each such person,
to the same extent as the foregoing indemnity from the Company to each of the
Indemnified Holders, but only with respect to losses, claims, damages,
liabilities or expenses incurred in investigating, preparing, pursuing or
defending claims and actions directly or indirectly caused by, related to, based
upon, arising out of or in connection with any untrue statement or omission or
19
20
alleged untrue statement of a material fact contained in any Registration
Statement, preliminary Prospectus or Prospectus (including any amendments
thereof and supplements thereto) that was made in reliance upon and in
conformity with information relating to such Holder furnished in writing by or
on behalf of such Holder expressly for use in any Registration Statement or
Prospectus or any amendment or supplement thereto. In no event shall the
liability of any selling Holder hereunder be greater than the amount by which
the total proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation exceeds the sum of (A)
the amount paid by such Holder for such Registrable Securities plus (B) the
amount of any damages which such Holder has otherwise been required to pay by
reason of a claim or action based on such information.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Sections 8(a), 8(b) or 8(c) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Holders on the other hand from their sale of
Transfer Restricted Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and of the Indemnified Holder, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and any Indemnified Holder shall be deemed to be in the same
proportion as (x) the total proceeds from the offering of Senior Notes to the
Initial Purchaser (net of discounts but before deducting expenses) received by
the Company and (y) the total proceeds received by such Indemnified Holder upon
its sale of Transfer Restricted Services which otherwise would give rise to the
indemnification obligation, respectively. The relative fault of the Company, on
the one hand, and of the Indemnified Holder, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, on the one hand,
or by the Indemnified Holder, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section
8(d) were determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other
20
21
fees or expenses reasonably incurred by such indemnified party in connection
with investigating or defending any claim or action. Notwithstanding any other
provision of this Xxxxxxx 0, xxxx of the Holders (and its related Indemnified
Holders) shall be required to contribute, in the aggregate, an amount in excess
of the amount by which the total proceeds received by such Holder with respect
to the sale of its Transfer Restricted Securities pursuant to a Registration
Statement exceeds the sum of (A) the amount paid by such Holder for such
Transfer Restricted Securities plus (B) the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the principal amount of Series A
Senior Notes held by each of the Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company is not subject to Section 13 or 15(d) of the Securities Exchange Act, to
make available, upon request of any Holder of Transfer Restricted Securities, to
any Holder or beneficial owner of Transfer Restricted Securities in connection
with any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. For any Underwritten Offering, the
investment banker or investment bankers and manager or managers for any
Underwritten Offering that will administer such offering will be selected by the
Holders of a majority in aggregate
21
22
principal amount of the Transfer Restricted Securities included in such
offering. Such investment bankers and managers are referred to herein as the
"underwriters".
SECTION 12. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE
To the fullest extent permitted by applicable law, the Company
irrevocably submits to the jurisdiction of any federal or state court in the
City, County and State of New York, United States of America, in any suit or
proceeding based on or arising under this Agreement (solely in connection with
any such suit or proceeding), and irrevocably agrees that all claims in respect
of such suit or proceeding may be determined in any such court. The Company
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding. The Company hereby irrevocably
designates and appoints Xxxxxxx Xxxx, Esq., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Process Agent"), as the authorized agent of the
Company upon whom process may be served in any such suit or proceeding, it being
understood that the designation and appointment of Xxxxxxx Xxxx as such
authorized agent shall become effective immediately without any further action
on the part of the Company. The Company represents to the Initial Purchaser that
it has notified the Process Agent of such designation and appointment and that
the Process Agent has accepted the same in writing. The Company hereby
irrevocably authorizes and directs the Process Agent to accept such service. The
Company further agrees that service of process upon the Process Agent and
written notice of said service to the Company mailed by prepaid registered first
class mail or delivered to the Process Agent at its principal office, shall be
deemed in every respect effective service of process upon the Company in any
such suit or proceeding. Nothing herein shall affect the right of the Initial
Purchaser or any person controlling the Initial Purchaser or any Indemnified
Holder to serve process in any other manner permitted by law. The Company
further agrees to take any and all action, including the execution and filing of
any and all such documents and instruments as may be necessary to continue such
designation and appointment of the Process Agent in full force and effect so
long as the Company has any outstanding obligations under this Agreement. To the
extent that the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service of
note, attachment prior to judgment, attachment in aid of execution, executor or
otherwise) with respect to itself or its property, the Company hereby
irrevocably waives such immunity in respect of their obligations under this
Agreement, to the extent permitted by law.
SECTION 13. OBLIGATION CURRENCY
The obligation of the parties to make payments hereunder is in U.S.
dollars (the "Obligation Currency") and such obligation shall not be discharged
or satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency or any other
realization in such other currency, whether as proceeds of set-off, security,
guarantee, distributions, or otherwise, except to the extent to which such
tender, recovery or realization shall result
22
23
in the effective receipt by the party which is to receive such payment of the
full amount of the Obligation Currency expressed to be payable hereunder, and
the party liable to make such payment agrees to indemnify the party which is to
receive such payment (as an additional, separate and independent cause of
action) for the amount (if any) by which such effective receipt shall fall short
of the full amount of the Obligation Currency expressed to be payable hereunder
and such obligation to indemnify shall not be affected by judgment being
obtained for any other sums due under this Agreement.
SECTION 14. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture, the Purchase Agreement or granted
by law, including recovery of liquidated or other damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
a breach of any of the provisions of this Agreement will cause irreparable
injury to the Holders, that monetary damages would not be adequate compensation
for any loss incurred by reason of such breach, that the Holders have no
adequate remedy by law in respect of such breach and, as a consequence, that
each and every provision contained in this Agreement shall be specifically
enforceable against the Company, and the Company hereby waives and agrees not to
assert as a defense to the request or granting of specific performance of any
such provision that any breach of any such provision does not or would not cause
irreparable harm or is or would be compensable by an award of money damages in
respect of such breach.
(b) No Inconsistent Agreements. The Company will not enter, on or after
the date of this Agreement, into any agreement with respect to its securities
that would be inconsistent with the rights granted to the Holders in this
Agreement or otherwise would conflict with the provisions hereof. The Company
previously has not entered into any agreement granting any registration rights
with respect to its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent in any way
with the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Senior Notes. The Company will not take
any action, or permit any change to occur, with respect to the Senior Notes that
would materially and adversely affect the ability of the Holders to Consummate
any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 12(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates
23
24
exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities subject to such Exchange
Offer.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, then at the address set forth on the
records of the Registrar under the Indenture, with a copy to the Registrar
under the Indenture; and
(ii) if to the Company, then:
Oxford Health Plans, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxx, Esq.
With a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxx Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given as follows: (A) at the time delivered by hand, if personally delivered;
(B) five Business Days after being deposited in the mail, postage prepaid, if
mailed; (C) when answered back, if telexed; (D) when receipt acknowledged, if
telecopied; and (E) on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
delivered concurrently to the Trustee, at the address specified in the
Indenture, by the Person giving the same.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities directly from
24
25
such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
25
26
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
OXFORD HEALTH PLANS, INC.
By:
Name:
Title:
Accepted and agreed to as of the date first above written:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:____________________________
Name:
Title: