EXHIBIT 4.1(2)
EXHIBIT 4.1(2)
CONVERTIBLE SENIOR SUBORDINATED DEBENTURES
DUE 2020
REGISTRATION RIGHTS AGREEMENT
Dated as of August 16, 2000
by and among
Health Management Associates, Inc.
and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Banc of America Securities LLC
This Registration Rights Agreement (this "Agreement") is made and entered
into as of August 16, 2000 by and among Health Management Associates, Inc., a
Delaware corporation (the "Company"), Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Banc of
America Securities LLC (each an "Initial Purchaser" and, collectively, the
"Initial Purchasers"), each of whom has agreed to purchase the Company's
Convertible Subordinated Notes due 2020 (the "Debentures") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated August 10,
2000, (the "Purchase Agreement"), by and among the Company and the Initial
Purchasers. In order to induce the Initial Purchasers to purchase the
Debentures, 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 Purchasers pursuant to Section 9 of the
Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture, dated August 16, 2000,
between the Company and First Union National Bank as Trustee, relating to the
Debentures (the "Indenture").
The parties hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Amendment Effectiveness Deadline: As defined in Section 3(b) hereof.
Applicable Conversion Price as of any date of determination means the
Applicable Principal Amount per $1,000 principal amount at maturity of
Debentures as of such date of determination divided by the Conversion Rate in
effect as of such date of determination or, if no Debentures are then
outstanding, the Conversion Rate that would be in effect were Debentures then
outstanding.
Applicable Principal Amount as of any date of determination, with respect
to each $1,000 principal amount at maturity of Debentures means the sum of the
initial issue price of such Debentures ($250,180,500) plus accrued original
issue discount with respect to such Debentures through such date of
determination or, if no Debentures are then outstanding, such sum calculated as
if such Debentures were then outstanding.
Business Day: 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.
Closing Date: The date hereof.
Common Stock: Class A Common Stock, $0.01 par value per share, of the
Company.
Commission: The Securities and Exchange Commission.
Conversion Rate: has the meaning assigned to that term in the Indenture.
Damages Accrual Period: As defined in Section 4 hereof.
Damages Payment Date: Each of August 16 and February 16.
Debentures: The up to $425,000,000 aggregate principal amount at maturity
of Convertible Senior Subordinated Debentures due 2020 being issued pursuant to
the Purchase Agreement.
2
Deferral Notice: As defined in Section 5(vi) hereof.
Defined Period: As defined in Section 5(vi) hereof.
Effectiveness Deadline: As defined in Section 3(a) hereof.
Effectiveness Period means the period of two years from the date the Shelf
Registration Statement is declared effective or such shorter period that will
terminate upon the earliest of the following: (A) when all the Debentures
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement, (B) when all shares of Common Stock issued upon
conversion of any such Debentures that had not been sold pursuant to the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement and (C) when, in the written opinion of counsel to the Company, all
outstanding Registrable Securities held by persons which are not affiliates of
the Company may be resold without registration under the Securities Act pursuant
to Rule 144(k) under the Securities Act or any successor provision thereto.
Event: As defined in Section 4 hereof.
Event Date: As defined in Section 4 hereof.
Event Termination Date: As defined in Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exempt Resales: The transactions in which the Initial Purchasers propose to
sell the Debentures to certain "qualified institutional buyers," as such term is
defined in Rule 144A under the Act.
Filing Deadline: As defined in Section 3(a) hereof.
Holders: As defined in Section 2 hereof.
Liquidated Damages: As defined in Section 4 hereof.
Material Event: As defined in Section 5(vi) hereof.
Notice and Questionnaire: means a written notice delivered to the Company
containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Exhibit A to the Offering
Memorandum of the Company issued August 10, 2000 relating to the Securities.
Prospectus: The prospectus included in a Registration Statement at the time
such Registration Statement is declared effective, as amended or supplemented by
any prospectus supplement and by all other amendments thereto, including post-
effective amendments, all material incorporated by reference into such
Prospectus and any information previously omitted in reliance upon Rule 430A of
the Act.
Rule 144: Rule 144 promulgated under the Act.
Shelf Registration Statement: As defined in Section 3 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in
effect on the date of the Indenture.
Registrable Securities: The Debentures and the shares of Common Stock into
which the Debentures are convertible, upon original issuance thereof, and at all
times subsequent thereto, until, in the case of any such Debentures or shares of
Common Stock, (a) the date on which such Debentures or shares of Common Stock
have been disposed of in accordance with a Shelf Registration Statement, (b) the
date on which such Debentures or shares
3
of Common Stock are distributed to the public pursuant to Rule 144 or are
saleable pursuant to Rule 144 (or similar provisions then in effect) under the
Act or (c) the date on which such Debentures or shares of Common Stock cease to
be outstanding.
Section 2. Holders.
A Person is deemed to be a holder of Registrable Securities (each, a
"Holder") whenever such Person owns Registrable Securities.
Section 3. Shelf Registration.
(a) Shelf Registration. As soon as practicable after the Closing Date
but in no event later than 90 days after the Closing Date (the such 90th day,
"Filing Deadline"), the Company shall file with the Commission a shelf
registration statement pursuant to Rule 415 under the Act (the "Shelf
Registration Statement"), relating to all Registrable Securities, and shall use
reasonable efforts to cause such Shelf Registration Statement to become
effective on or prior to 180 days after the Closing Date (such 180th day, the
"Effectiveness Deadline").
The Company shall use its best efforts to keep any Shelf Registration
Statement required by this Section 3(a) continuously effective, supplemented and
amended as required by and subject to the provisions of Section 5(a) hereof to
the extent necessary to ensure that it is available for sales of Registrable
Securities by the Holders thereof entitled to the benefit of this Section 3(a),
and to ensure that it conforms with the requirements of this Agreement, the Act
and the policies, rules and regulations of the Commission as announced from time
to time, for the Effectiveness Period.
(a) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. Each Holder of Registrable Securities agrees
that if such Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in accordance
with this Section 3(b) and Section 5(vi). Each Holder of Registrable Securities
wishing to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus agrees to deliver a Notice and Questionnaire
and, if requested, the information specified in Item 508 of Regulation S-K, 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, as promptly as is practicable after the date a Notice and Questionnaire
and, if requested, the information specified in Item 508 of Regulation S-K, is
delivered, and in any event within five (5) Business Days after such date, (i)
if required by applicable law, file with the SEC a post-effective amendment to
the Shelf Registration Statement or prepare and, if required by applicable law,
file a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that the Holder delivering such 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 reasonable efforts to cause such post-effective
amendment to be declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the "Amendment Effectiveness
Deadline") that is thirty (30) days after the date such post-effective amendment
is required by this clause to be filed; (ii) provide such Holder copies of any
documents filed pursuant to Section 3(b)(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 3(b)(i); provided, that if
such Notice and Questionnaire or information specified in Item 508 of Regulation
S-K 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 5(vi), provided, further, that if under
applicable law the Company has more than one option as to the type or manner of
making any such filing, it will make the required filing or filings in the
manner or of a type that is reasonably expected to result in the earliest
availability of the Prospectus for effecting resales of Registrable Securities.
Notwithstanding anything contained herein to the contrary, the Company shall be
under no obligation to name any Holder that has not delivered a Notice and
Questionnaire to the Company as a selling security holder in any Registration
Statement or related Prospectus; provided, however, that any Holder that has
delivered a Notice
4
and Questionnaire to the Company pursuant to the provisions of Section 3(b) of
this Agreement (whether or not such Holder has delivered a Notice and
Questionnaire to the Company by the time the Registration Statement was declared
effective) shall be named as a selling security holder in the Registration
Statement or related Prospectus in accordance with the requirements of this
Section 3(b).
Section 4. Liquidated Damages.
The parties hereto agree that the Holders of Registrable Securities will
suffer damages, and that it would not be feasible to ascertain the extent of
such damages with precision, if (i) the Shelf Registration Statement is not
filed with the Commission on or prior to the Filing Deadline, (ii) such Shelf
Registration Statement has not been declared effective by the Commission on or
prior to the Effectiveness Deadline, (iii) the Company has failed to perform its
obligations set forth in Section 3(b) hereof within the time period required
therein, (iv) the aggregate duration of Deferral Periods in any period exceeds
the number of days permitted in respect of such period pursuant to Section 5(vi)
hereof or (v) the number of Deferral Periods in any period exceeds the number
permitted in respect of such period pursuant to Section 5(vi) (each of the
events of a type described in any of the foregoing clauses (i) through (v) are
individually referred to herein as an "Event," and the Filing Deadline in the
case of clause (i), the Effectiveness Deadline in the case of clause (ii), the
date by which the Company is required to perform its obligations set forth in
Section 3(b) in the case of clause (iii) (including the filing of any post-
effective amendment prior to the Amendment Effectiveness Deadline), the date on
which the aggregate duration of Deferral Periods in any period exceeds the
number of days permitted by Section 5(vi) hereof in the case of clause (iv), and
the date of the commencement of a Deferral Period that causes the limit on the
number of Deferral Periods in any period under Section 5(vi) hereof to be
exceeded in the case of clause (v), being referred to herein as an "Event
Date"). Events shall be deemed to continue until the "Event Termination Date,"
which shall be the following dates with respect to the respective types of
Events: the date the Shelf Registration Statement is filed in the case of an
Event of the type described in clause (i), the date the Shelf Registration
Statement is declared effective under the Securities Act in the case of an Event
of the type described in clause (ii), the date the Company performs its
obligations set forth in Section 3(b) in case of an Event of the type described
in clause (iii), termination of the Deferral Period that caused the limit on the
aggregate duration of Deferral Periods in a period set forth in Section 5(vi) to
be exceeded in the case of the commencement of an Event of the type described in
clause (iv), and termination of the Deferral Period the commencement of which
caused the number of Deferral Periods in a period permitted by Section 5(vi) to
be exceeded in the case of an Event of the type described in clause (v).
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have occurred
and are continuing (a "Damages Accrual Period"), the Company agrees to pay, as
liquidated damages and not as a penalty, an amount (the "Liquidated Damages
Amount"), payable on the Damages Payment Dates to Holders of Registrable
Securities, accruing, for each portion of such Damages Accrual Period beginning
on and including a Damages Payment Date (or, in respect of the first time that
the Liquidated Damages Amount is to be paid to Holders on a Damages Payment Date
as a result of the occurrence of any particular Event, from the Event Date) and
ending on but excluding the first to occur of (A) the date of the end of the
Damages Accrual Period or (B) the next Damages Payment Date, at a rate per annum
equal to one-quarter of one percent (0.25%) for the first 90-day period from the
Event Date, and thereafter at a rate per annum equal to one-half of one percent
(0.5%) of the aggregate Applicable Principal Amount of such Debentures and the
aggregate Applicable Conversion Price of such shares of Common Stock, as the
case may be, in each case determined as of the Business Day immediately
preceding the next Damages Payment Date; provided, that any Liquidated Damages
Amount accrued with respect to any Debentures or portion thereof called for
redemption on a redemption date or converted into Common Stock on a conversion
date prior to the Damages Payment Date, shall, in any such event, be paid
instead to the Holder who submitted such Debentures or portion thereof for
redemption or conversion on the applicable redemption date or conversion date,
as the case may be, on such date (or promptly following the conversion date, in
the case of conversion). Notwithstanding the foregoing, no Liquidated Damages
Amount shall accrue as to any Registrable Security from and after the earlier of
(x) the date such security is no longer a Registrable Security and (y)
expiration of the Effectiveness Period. The rate of accrual of the Liquidated
Damages Amount with respect to any period shall not exceed the rate provided for
in this paragraph notwithstanding the occurrence of multiple concurrent Events.
Following the cure of all Events requiring the payment by the Company of
Liquidated Damages Amounts to the Holders of Registrable Securities pursuant to
this Section, the accrual of
5
Liquidated Damages Amounts will cease (without in any way limiting the effect of
any subsequent Event requiring the payment of a Liquidated Damages Amount by the
Company).
The Trustee shall be entitled, on behalf of Holders of Registrable
Securities, to seek any available remedy for the enforcement of this Agreement,
including for the payment of any Liquidated Damages Amount. Notwithstanding the
foregoing, the parties agree that the sole monetary damages payable for a
violation of the terms of this Agreement with respect to which liquidated
damages are expressly provided shall be such liquidated damages. Nothing shall
preclude a Holder of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section 4 that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement).
The parties hereto agree that the liquidated damages provided for in this
Section 4 constitute a reasonable estimate of the damages that may be incurred
by Holders of Registrable Security by reason of the failure of the Shelf
Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Security in accordance with the provisions
hereof.
Section 5. Shelf Registration Procedures.
(a) Procedures. In connection with the Shelf Registration Statement,
the Company shall:
(i) use reasonable efforts to effect such registration to
permit the sale of the Registrable Securities being sold in accordance
with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant to
Section 3(b) hereof), and pursuant thereto the Company will prepare
and file with the Commission a Shelf Registration Statement relating
to the registration on any appropriate form under the Act, which form
shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution thereof
(including, without limitation, one or more underwritten offerings)
within the time periods and otherwise in accordance with the
provisions hereof. The Company shall not be permitted to include in
the Shelf Registration Statement any securities other than the
Registrable Securities.
(ii) use its best efforts to contact all Holders of
Registrable Securities and notify each Holder of its right to include
its Registrable Securities in such Shelf Registration Statement.
(iii) use its best efforts to keep such Shelf Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 of this Agreement.
Upon the occurrence of any event that would cause any such Shelf
Registration Statement or the Prospectus contained therein (A) to
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading
or (B) not to be effective and usable for resale of Registrable
Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Shelf
Registration Statement curing such defect, and, if Commission review
is required, use its best efforts to cause such amendment to be
declared effective as soon as practicable.
(iv) prepare and file with the Commission such amendments
and post-effective amendments to the Shelf Registration Statement as
may be necessary to keep such Shelf Registration Statement effective
for the applicable period set forth in Section 3 hereof, cause the
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act,
and to comply fully with Rules 424, 430A and 462, as applicable, under
the Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all Registrable Securities covered
by such Shelf Registration
6
Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in
such Shelf Registration Statement or supplement to the Prospectus;
(v) advise the Holders and underwriters, if any, 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 Shelf Registration
Statement or any post-effective amendment thereto, when the same has
become effective or (B) of any request by the Commission for
amendments to the Shelf Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto. If at any time any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Registrable Securities under
state securities or Blue Sky laws, the Company shall use its best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(vi) 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 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, or (C) the occurrence or existence of any pending
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, (i) in the case of clause (B)
above, subject to the next sentence, 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 a Shelf Registration
Statement, subject to the next sentence, use all reasonable efforts to
cause it to be declared effective as promptly as is reasonably
practicable, and (ii) give notice to the Holders that the availability
of the Shelf Registration Statement is suspended (a "Deferral Notice")
and, upon receipt of any Deferral Notice, each Holder agrees not to
sell any Registrable Securities pursuant to the Registration Statement
until such 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 reasonable efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as
soon as, in the sole judgment of the Company, public disclosure of
such Material Event would not be prejudicial to or contrary to the
interests of the Company or, if necessary to avoid unreasonable burden
or expense, as soon as reasonable 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. The period during
which the availability of the Shelf Registration Statement and any
Prospectus is suspended (the "Deferral Period") shall, without the
Company incurring any obligation to pay liquidated
7
damages pursuant to Section 4, not exceed forty-five (45) days in any
three (3) month period and ninety (90) days in any twelve (12) month
period.
(vii) furnish to each Holder named in any Shelf Registration
Statement or Prospectus and underwriter, if any, in connection with
such sale before filing with the Commission, copies of any Shelf
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Shelf Registration Statement or
Prospectus (including all documents incorporated by reference after
the initial filing of such Shelf Registration Statement), which
documents will be subject to the review and comment of such Persons in
connection with such sale, if any, for a period of at least five
Business Days, and the Company will not file any such Shelf
Registration Statement or Prospectus or any amendment or supplement to
any such Shelf Registration Statement or Prospectus (including all
such documents incorporated by reference) to which such Persons shall
reasonably object within five Business Days after the receipt thereof,
after which time any Person failing to object shall be deemed to have
accepted the form of the documents received. Any Person making a
timely objection shall be deemed to have reasonably objected to such
filing if such objection is made because such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omits to
state any material fact necessary to make the statements therein not
misleading or fails to comply with the applicable requirements of the
Act;
(viii) promptly prior to the filing of any document that is to
be incorporated by reference into a Shelf Registration Statement or
Prospectus, provide copies of such document to the Holders, and
underwriters, if any, in connection with such sale, 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 Holders may reasonably
request;
(ix) make available at reasonable times for inspection by the
Holders and underwriters, if any, and any attorney or accountant
retained by such Holders, or underwriters, if any, all financial and
other records, pertinent corporate documents of the Company and cause
the Company's officers, directors and employees to supply all
information reasonably requested by any such Holder, underwriters, if
any, attorney or accountant in connection with such Shelf Registration
Statement or any post-effective amendment thereto subsequent to the
filing thereof and prior to its effectiveness; provided, however, that
such Persons shall first agree in writing with the Company that any
information that is reasonable and in good faith designated by the
Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such Persons, unless (A)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory
authorities, (B) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities
laws in connection with the filing of such Registration Statement or
the use of any Prospectus), (C) such information becomes generally
available to the public other than as a result of a disclosure or
failure to safeguard such information by such Person or (D) such
information becomes available to such Person from a source other than
the Company and its subsidiaries and such source is not known, after
due inquiry, by such Person to be bound by a confidentiality
agreement; provided further, that the foregoing investigation shall be
coordinated on behalf of such Persons by one representative designated
by and on behalf of such Persons and any such confidential information
shall be available from such representative to such Persons so long as
any Person agrees to be bound by such confidentiality agreement;
(x) if requested by any Holders or underwriters, if any, in
connection with such sale, promptly include in any Shelf Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such Holders or
underwriters, if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Registrable Securities; and make all required
filings of such Prospectus supplement or post-effective amendment as
soon as practicable after the
8
Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(xi) furnish to each Holder and underwriter, if any, without
charge, at least one copy of the Shelf 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);
(xii) deliver to each Holder and underwriter, 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 (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each Holder and each underwriter, if any, in connection
with the offering and the sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto;
(xiii) upon the request of any Holder or underwriter, if any,
enter into such agreements (including underwriting agreements) 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 Registrable Securities pursuant to any Shelf
Registration Statement contemplated by this Agreement as may be
reasonably requested by such Person in connection with any sale or
resale pursuant to any applicable Shelf Registration Statement and in
such connection, the Company shall:
(A) upon request of any Holder or underwriter, if any, furnish
(or in the case of paragraphs (2) and (3) below, use its best efforts
to cause to be furnished) to each Holder or underwriter, if any, upon
the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated such date, signed on behalf of the
Company by (x) the President or any Vice President and (y) a
principal financial or accounting officer of the Company,
confirming, as of the date thereof, the matters set forth in
Sections 6(v), 9(a) and 9(b) of the Purchase Agreement and such
other similar matters as the Holders may reasonably request;
(2) opinions, dated the date of effectiveness of the Shelf
Registration Statement, of counsel for the Company covering
matters similar to those set forth in paragraphs (e) and (f) of
Section 9 of the Purchase Agreement and such other matters as the
selling Holders may reasonably request, and in any event
including a statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants for the Company 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 such counsel advises that, on the basis
of the foregoing, no facts came to such counsel's attention that
caused such counsel to believe that the Shelf Registration
Statement, at the time such Shelf Registration Statement or any
post-effective amendment thereto became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus
contained in such Shelf Registration Statement as of its date,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
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
9
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters to underwriters in connection with underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 9(h) of the Purchase
Agreement; and
(4) deliver such other documents and certificates as may be
reasonably requested by the Holders and underwriters, if any, to
evidence compliance with the matters set forth in clause (A)
above and with any customary conditions contained in any
agreement entered into by the Company pursuant to this clause
(xiii);
(xiv) prior to any public offering of Registrable Securities,
cooperate with the Holders, underwriters, if any, and their respective
counsel in connection with the registration and qualification of the
Registrable Securities under the securities or Blue Sky laws of such
jurisdictions as such Persons may request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
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 Shelf Registration Statement, in any
jurisdiction where it is not now so subject;
(xv) in connection with any sale of Registrable Securities
that will result in such securities no longer being Registrable Securities,
cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and to register such Registrable
Securities in such denominations and such names as the Holders may request
at least two Business Days prior to such sale of Registrable Securities;
(xvi) list all Shares of Common Stock covered by such Shelf
Registration Statement on any securities exchange on which the Common Stock
is then listed or (B) authorize for quotation on the National Association
of Securities Dealers Automated Quotation System ("NASDAQ") or the National
Market System of NASDAQ all Shares of Common Stock covered by such Shelf
Registration Statement if the Common Stock is then so authorized for
quotation.
(xvii) use its best efforts to cause the disposition of the
Registrable Securities covered by the Shelf Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities, subject to the
proviso contained in clause (xiv) above;
(xviii) provide a CUSIP number for all Registrable Securities
not later than the effective date of a Shelf Registration Statement
covering such Registrable Securities and provide the Trustee under the
Indenture with printed certificates for the Registrable Securities which
are in a form eligible for deposit with the Depository Trust Company;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xx) if underwritten, make appropriate officers of the
Company reasonably available to the underwriters for meetings with
prospective purchasers of the Registrable Securities and
10
prepare and present to potential investors customary "road show" material
in a manner consistent with other new issuances of other securities similar
to the Registrable Securities; and
(xxi) cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement required
by this Agreement and, in connection therewith, cooperate with the Trustee
and the Holders 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 efforts to cause the Trustee to execute,
all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xxii) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of Section
13 or Section 15(d) of the Exchange Act.
(b) Restrictions on Holders. Each Holder receiving a Deferral Notice
hereby agrees that it will either (i) destroy any Prospectuses, other than
permanent file copies, then in such Holder's possession which have been replaced
by the Company with more recently dated Prospectuses or (ii) deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in such Holder's possession of the Prospectus covering such Registrable
Securities that was current at the time of receipt of the Deferral Notice. The
time period regarding the effectiveness of the Shelf Registration Statement set
forth in Section 3 hereof, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Deferral Notice to the date of termination of the Deferral Period.
Section 6. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Shelf Registration Statement required by this Agreement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses; (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 Common Stock to be issued upon conversion of the
Debentures and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company and the
Holders of Registrable Securities; (v) all application and filing fees in
connection with listing the Common Stock 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.
(b) In connection with any Shelf Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchasers and the
Holders selling Registrable Securities pursuant to the "Plan of Distribution"
contained in the Shelf Registration Statement, for the reasonable fees (not to
exceed $10,000) and disbursements of not more than one counsel, who shall be
Xxxxx Xxxx & Xxxxxxxx, unless another firm shall be chosen by the Holders of a
majority in principal amount at maturity of the Registrable Securities for whose
benefit such Shelf Registration Statement is being prepared.
Section 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder,
its directors, its officers and each Person, if any, who controls such Holder
(within the meaning of Section 15 of the Act and Section 20 of the Exchange
Act), from and against any and all losses, claims, damages, liabilities,
judgments, (including without limitation, any legal or other expenses incurred
in connection with investigating or defending any matter, including any action
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Shelf Registration Statement, preliminary
prospectus or Prospectus (or any amendment or supplement thereto) provided by
the Company to any Holder or any
11
prospective purchaser of registered Debentures or registered shares of Common
Stock or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission or alleged untrue
statement or omission that is based upon information relating to any of the
Holders furnished in writing to the Company by any of the Holders.
(b) Each Holder of Registrable Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company and its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Company, to the same extent
as the foregoing indemnity from the Company set forth in Section 7(a) above, but
only with reference to information relating to such Holder furnished in writing
to the Company by such Holder expressly for use in any Registration Statement.
In no event shall any Holder, its directors, its officers or any Person, if any,
who controls such Holder be liable or responsible for any amount in excess of
the amount by which the total amount received by such Holder with respect to its
sale of Registrable Securities pursuant to a Shelf Registration Statement
exceeds (i) the amount paid by such Holder for such Registrable Securities and
(ii) the amount of any damages that such Holder, its directors, its officers or
any Person, if any, who controls such Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying person") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 7(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 7(a), and by
the Company, in the case of parties indemnified pursuant to Section 7(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action effected with its written consent. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
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 judgments (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
12
other hand, from their sale of Registrable Securities or (ii) if the allocation
provided by clause 7(d)(i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 7(d)(i) above but also the relative fault of the Company on the one
hand, and of the Holders, on the other hand, in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of the Company, on the one hand, and of the Holders, 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 Holders, 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 agree that it would not be just and equitable
if contribution pursuant to this Section 7(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 judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action that
could have given rise to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 7, no Holder or its related
Indemnified Holders shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total received by such Holder with
respect to the sale of its Registrable Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Registrable
Securities and (ii) 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 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 7(d) are several in proportion to the respective principal amount at
maturity of Registrable Securities held by each of the Holders hereunder and not
joint.
Section 8. Rule 144A and Rule 144.
The Company agrees with each Holder, for so long as any Registrable
Securities remain outstanding and during any period in which the Company (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder of Registrable Securities, to any Holder or beneficial
owner of Registrable Securities in connection with any sale thereof and any
prospective purchaser of Registrable 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 Registrable Securities pursuant to Rule 144A,
and (ii) is subject to Section 13 or 15(d) of the Exchange Act, to make all
filings required thereby in a timely manner in order to permit resales of such
Registrable Securities pursuant to Rule 144.
Section 9. Underwritten Registrations.
(a) If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in amount
of such Registrable Securities included in such offering, subject to the consent
of the Company (which will not be unreasonably withheld or delayed).
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (i) agrees to sell its Registrable
Securities on the basis reasonably provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
13
(b) Each Holder of Registrable Securities agrees, if requested
(pursuant to a timely written notice) by the managing underwriters in an
underwritten offering made pursuant to a Shelf Registration Statement, not to
effect any private sale or distribution (including a sale pursuant to Rule
144(k) and Rule 144A, but excluding non-public sales to any of its affiliates,
officers, directors, employees and controlling persons) of any of the
Debentures, in the case of an underwritten offering of the Debentures, or the
Common Stock, in the case of an underwritten offering of shares of Common Stock
constituting Registrable Securities, during the period beginning 10 days prior
to, and ending 90 days after, the closing date of such underwritten offering.
The foregoing provisions of Section 9(b) shall not apply to any Holder of
Registrable Securities if such Holder is prevented by applicable statute or
regulation from entering into any such agreement.
(c) If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the underwriters, their
controlling persons and their respective officers, directors, employees,
representatives and agents shall be entitled to indemnity (substantially similar
to the indemnity set forth in Section 7 of the Agreement) from the Company and
the Holders, which indemnity may be set forth in an underwriting agreement.
Section 10. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 3 hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's obligations under Section 3 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement (which has not expired or been terminated) granting
any registration rights with respect to its securities to any Person, except for
that certain Registration Agreement dated as of September 2, 1988, whereby
certain of the Company's executive officers and Xxxxxx X. Xxxx, a director of
the Company, have certain demand registration rights and "piggyback"
registration rights, at the Company's expense, with respect to registration
under the Securities Act of all their shares of Common Stock. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) No Piggybacks on Shelf Registration Statement. With the exception
of registration rights granted in the Registration Agreement as disclosed in
Section 10(b) hereof, the Company shall not grant to any of its security holders
(other than the holders of Registrable Securities in such capacity) the right to
include any of its securities in any Shelf Registration Statement provided for
in this Agreement other than the Registrable Securities.
(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 4
hereof and this Section 10(d)(i), the Company has obtained the written consent
of Holders of all outstanding Registrable 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 at maturity of Registrable
Securities (excluding Registrable Securities held by the Company or its
Affiliates).
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
14
(f) 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, 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: Health Management Associates, Inc.
0000 Xxxxxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Telecopier No. (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
With a copy to: XXXXXX, XXXXXXX & XXXXX LLP
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Telecopier No. (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and 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
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(g) 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 Registrable Securities; provided, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms hereof or of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Registrable Securities in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(h) 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.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) 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.
(l) Entire Agreement. This 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
15
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 Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
In Witness Whereof, the parties have executed this Agreement as of the date
first written above.
HEALTH MANAGEMENT ASSOCIATES, INC.
By: ________________________________________
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BANC OF AMERICA SECURITIES LLC
By: XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
By: ______________________________________
Name:
Title:
16
