Exhibit 4.6
BANC OF AMERICA SECURITIES LLC
$100,000,000 AGGREGATE PRINCIPAL AMOUNT
SIERRA HEALTH SERVICES, INC.
2.25% SENIOR CONVERTIBLE SENIOR DEBENTURES
DUE 2023
Resale Registration Rights Agreement
dated March 3, 2003
1
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of March 3, 2003, between
Sierra Health Services, Inc., a Nevada corporation (together with any successor
entity, herein referred to as the "Company") and Banc of America Securities LLC
as representative of the several initial purchasers (the "Initial Purchasers")
under the Purchase Agreement (as defined below).
Pursuant to the Purchase Agreement, dated as of February 25, 2003, between
the Company and Banc of America Securities LLC as representative of the Initial
Purchasers (the "Purchase Agreement"), the Initial Purchasers have agreed to
purchase from the Company $100,000,000 ($115,000,000 if the Initial Purchasers
exercise their option in full) aggregate principal amount of 2.25% Senior
Convertible Senior Debentures due 2023 (the "Debentures"). The Debentures will
be convertible into fully paid, nonassessable shares of the Company's common
stock, par value $0.005 per share, together with the Rights evidenced by such
common stock to the extent provided in the Rights Agreement (the "Common
Stock"). The Debentures will be convertible on the terms, and subject to the
conditions, set forth in the Indenture (as defined herein). To induce the
Initial Purchasers to purchase the Debentures, the Company has agreed to provide
the registration rights set forth in this Agreement pursuant to Section 5(g) of
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized terms shall have the following
meanings:
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" means this Resale Registration Rights Agreement.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(e) hereof.
"Blue Sky Application" has the meaning set forth in Section 6(a)(i) hereof.
"Business Day" has the meaning set forth in the Indenture.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the preamble hereto.
"Company" has the meaning set forth in the preamble hereto.
"Debentures" has the meaning set forth in the preamble hereto.
"Effectiveness Period" has the meaning set forth in Section 2(a)(iii)
hereof.
"Effectiveness Target Date" has the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means any Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
"Indemnified Holder" has the meaning set forth in Section 6(a) hereof.
"Indenture" means the Indenture, dated as of March 3, 2003 between the
Company and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee"),
pursuant to which the Debentures are to be issued, as such Indenture is amended,
modified or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
"Liquidated Damages" has the meaning set forth in Section 3(a) hereof.
"Liquidated Damages Payment Date" means each February 15 and November 15.
"Majority of Holders" means Holders holding over 50% of the aggregate
principal amount of Debentures outstanding; provided that, for the purpose of
this definition, a holder of shares of Common Stock which constitute Transfer
Restricted Securities and issued upon conversion, repurchase or redemption of
the Debentures shall be deemed to hold an aggregate principal amount at maturity
of Debentures (in addition to the principal amount at maturity of Debentures
held by such holder) equal to the quotient of (x) the number of such shares of
Common Stock held by such holder and (y) the conversion rate in effect at the
time of such conversion, repurchase or redemption as determined in accordance
with the Indenture.
"NASD" means the National Association of Securities Dealers, Inc.
"Notice and Questionnaire" means a written notice executed by the
respective Holder and delivered to the Company containing substantially the
information called for by the Selling Securityholder Notice and Questionnaire
attached as Annex A to the Offering Memorandum of the Company issued February
25, 2003 relating to the Debentures.
"Notice Holder" has the meaning set forth in Section 2(b) hereof.
"Person" means any individual, partnership, corporation, company,
unincorporated organization, trust, joint venture or a government or agency or
political subdivision thereof.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Prospectus" means the prospectus included in a Shelf 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" means, with respect to any Liquidated Damages Payment Date,
each Person who is a Holder on the 15th day preceding the relevant Liquidated
Damages Payment Date. In the case of a Holder of shares of Common Stock issued
upon conversion, repurchase or redemption of the Debentures, "Record Holder"
shall mean each Person who is a Holder of shares of Common Stock which
constitute Transfer Restricted Securities on the 15th day preceding the relevant
Liquidated Damages Payment Date.
"Registration Default" has the meaning set forth in Section 3(a) hereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Filing Deadline" has the meaning set forth in Section 2(a)(i)
hereof.
"Shelf Registration Statement" has the meaning set forth in Section 2(a)(i)
hereof.
"Subsequent Shelf Registration Statement" has the meaning set forth in
Section 2(c) hereof.
"Suspension Notice" has the meaning set forth in Section 4(c) hereof.
"Suspension Period" has the meaning set forth in Section 4(c) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified under the TIA.
"Transfer Restricted Securities" means each Debenture and each share of
Common Stock issued upon conversion or repurchase of Debentures until the
earlier of:
(i) the date on which such Debenture or such share of Common Stock
issued upon conversion or repurchase of such Debenture has been effectively
registered under the Securities Act and disposed of in accordance with the
Shelf Registration Statement;
(ii) the date on which such Debenture or such share of Common Stock
issued upon conversion or repurchase of such Debenture is transferred in
compliance with Rule 144 under the Securities Act or may be sold or
transferred by a person who is not an affiliate of the Company pursuant to
Rule 144(k) under the Securities Act (or any other similar provision then
in force); or
(iii) the date on which such Debenture or such share of Common Stock
issued upon conversion or repurchase of such Debenture ceases to be
outstanding (whether as a result of redemption, repurchase and
cancellation, conversion or otherwise).
"Underwritten Registration" means a registration in which Debentures of the
Company are sold to an underwriter for reoffering to the public.
Unless the context otherwise requires, the singular includes the plural,
and words in the plural include the singular.
2. Shelf Registration.
(a) The Company shall:
(i) not later than 90 days after the date hereof (the "Shelf
Filing Deadline"), cause to be filed a registration statement pursuant
to Rule 415 under the Securities Act (the "Shelf Registration
Statement"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities held by Holders that
have provided the information required pursuant to the terms of
Section 2(b) hereof;
(ii) use its best efforts to cause the Shelf Registration
Statement to be declared effective by the Commission not later than
180 days after the date hereof (the "Effectiveness Target Date"); and
(iii) use its best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required
by the provisions of Section 4(b) hereof to the extent necessary to
ensure that (A) it is available for resales by the Holders of Transfer
Restricted Securities entitled, pursuant to Section 2(b) and Section
2(e) hereof, to the benefit of this Agreement and (B) conforms with
the requirements of this Agreement and the Securities Act and the
rules and regulations of the Commission promulgated thereunder as
announced from time to time, for a period (the "Effectiveness Period")
beginning on the date the Registration Statement is declared effective
by the Commission and ending on the earliest to occur of:
(1) two years following the last date of original issuance
of any of the Debentures;
(2) the date when all Holders of Transfer Restricted
Securities who are not affiliates of the Company are able to sell
all such Transfer Restricted Securities immediately pursuant to
Rule 144(k) under the Securities Act (or any other similar
provision then in force); or
(3) the date when all of the Transfer Restricted Securities
of those Holders that complete and deliver the Notice and
Questionnaire in a timely manner are registered under the Shelf
Registration Statement and disposed of in accordance with the
Shelf Registration Statement.
(b) The Company shall furnish a written notice to each Holder of the
Transfer Restricted Securities at least 20 business days before filing the
Shelf Registration Statement and inform each Holder that to have its
Transfer Restricted Securities included in the Shelf Registration Statement
it must deliver a completed Notice and Questionnaire to the Company. At the
time the Shelf Registration Statement is declared effective, each Holder
that has delivered a completed Notice and Questionnaire to the Company (a
"Notice Holder") on or prior to the date ten (10) Business Days prior to
such time of effectiveness shall be named as a selling securityholder in
the Shelf Registration Statement and the related Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to purchasers of
Transfer Restricted Securities in accordance with applicable law. None of
the Company's securityholders (other than the Holders of Transfer
Restricted Securities) shall have the right to include any of the Company's
securities in the Shelf Registration Statement.
(c) If the Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because all Transfer Restricted
Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Transfer Restricted Securities), the
Company shall use its best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within
thirty (30) days of such cessation of effectiveness amend the Shelf
Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration Statement covering all of the securities that
as of the date of such filing are Transfer Restricted Securities ( a
"Subsequent Shelf Registration Statement"). If a Subsequent Shelf
Registration Statement is filed, the Company shall use its best efforts to
cause the Subsequent Shelf Registration Statement to become effective as
promptly as is practicable after such filing and to keep such Registration
Statement (or subsequent Shelf Registration Statement) continuously
effective until the end of the Effectiveness Period.
(d) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable
to the registration form used by the Company for such Shelf Registration
Statement, if required by the Securities Act or as reasonably requested by
the Initial Purchasers or by the Trustee on behalf of the Holders of the
Transfer Restricted Securities covered by such Shelf Registration
Statement.
(e) Each Holder agrees that if such Holder wishes to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus, it will do so only in accordance with this Section
2(e), and the procedures set forth in Section 4 hereof. Each Holder wishing
to sell Transfer Restricted Securities pursuant to a Shelf Registration
Statement and related Prospectus agrees to deliver a Notice and
Questionnaire to the Company at least three (3) Business Days prior to any
intended distribution of Transfer Restricted Securities under the Shelf
Registration Statement. From and after the date the Shelf Registration
Statement is declared effective the Company shall, as promptly as
practicable after the date a Notice and Questionnaire is delivered, and in
any event upon the later of (x) twenty (20) Business Days after such date
(but no earlier than twenty (20) Business Days after effectiveness) or (y)
twenty (20) Business Days after the expiration of any Suspension Period in
effect when the Notice and Questionnaire is delivered or put into effect
within twenty (20) Business Days of such delivery 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 securityholder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Transfer Restricted
Securities in accordance with applicable law and, if the Company shall
file a post-effective amendment to the Shelf Registration Statement,
use its best 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 Date") that is forty-five (45) 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 2(e)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(e)(i);
provided that if such Notice and Questionnaire is delivered during a Suspension
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 Suspension Period in accordance with Section
4(b). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to ten
(10) Business Days from the expiration of a Suspension Period (and the Company
shall incur no obligation to pay Liquidated Damages during such extension) if
such Suspension Period shall be in effect on the Amendment Effectiveness
Deadline Date.
3. Liquidated Damages.
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target
Date;
(iii) the Company has failed to perform its obligations set forth
in Section 2(e) within the time period required therein;
(iv) any post-effective amendment to a Shelf Registration filed
pursuant to Section 2(e)(i) has not become effective under the
Securities Act on or prior to the Amendment Effectiveness Deadline
Date;
(v) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but, during the
Effectiveness Period, shall thereafter cease to be effective or fail
to be usable for its intended purpose without being succeeded within
five Business Days by a post-effective amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report
filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act that cures such failure and, in the case of
a post-effective amendment, is itself immediately declared effective;
or
(vi) (A) prior to or on the 45th or 60th day, as the case may be,
of any Suspension Period, such suspension has not been terminated or
(B) Suspension Periods exceed an aggregate of 90 days in any 360 day
period,
(each such event referred to in foregoing clauses (i) through (vi), a
"Registration Default"), the Company hereby agrees to pay interest ("Liquidated
Damages") with respect to the Transfer Restricted Securities from and including
the day following the Registration Default to but excluding the earlier of (1)
the day on which the Registration Default has been cured and (2) the date the
Shelf Registration Statement is no longer required to be kept effective,
accruing at a rate:
(A) in respect of the Debentures, to each holder of
Debentures who has delivered a completed Notice and Questionnaire
to the Company, (x) with respect to the first 90-day period
during which a Registration Default shall have occurred and be
continuing, equal to 0.25% per annum of the aggregate issue price
of the Debentures, and (y) with respect to the period commencing
on the 91st day following the day the Registration Default shall
have occurred and be continuing, equal to 0.50% per annum of the
aggregate issue price of the Debentures; provided that in no
event shall Liquidated Damages accrue at a rate per year
exceeding 0.50% of the aggregate issue price of the Debentures;
and
(B) in respect of any shares of Common Stock, to each holder
of shares of Common Stock issued upon conversion of Debentures
who has delivered a completed Notice and Questionnaire to the
Company, (x) with respect to the first 90-day period in which a
Registration Default shall have occurred and be continuing, equal
to 0.25% per annum of the aggregate issue price of each Debenture
converted, and (y) with respect to the period commencing the 91st
day following the day the Registration Default shall have
occurred and be continuing, equal to 0.50% per annum of the
aggregate issue price of each Debenture converted; provided that
in no event shall Liquidated Damages accrue at a rate per year
exceeding 0.50% of the aggregate issue price of the converted
Debentures.
(b) All accrued Liquidated Damages shall be paid in arrears to Record
Holders by the Company on each Liquidated Damages Payment Date. Upon the
cure of all Registration Defaults relating to any particular Debenture or
share of Common Stock, the accrual of Liquidated Damages with respect to
such Debenture or share of Common Stock will cease.
All obligations of the Company set forth in this Section 3 that are
outstanding with respect to any Transfer Restricted Security at the time
such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Transfer
Restricted Security shall have been satisfied in full.
The Liquidated Damages set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for each
Registration Default.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the
Company shall comply with all the provisions of Section 4(b) hereof
and shall use its best efforts to effect such registration to permit
the sale of the Transfer Restricted Securities, and pursuant thereto,
shall as expeditiously as possible prepare and file with the
Commission a Shelf Registration Statement relating to the registration
on any appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in accordance with
this Section 4(b) of the existence of any fact or event of the
kind described in Section 4(b)(iii)(D), use its best efforts to
keep the Shelf Registration Statement continuously effective
during the Effectiveness Period; upon the occurrence of any event
that would cause the Shelf Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the
Effectiveness Period, the Company shall file promptly an
appropriate amendment to the Shelf Registration Statement, a
supplement to the Prospectus or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, 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 the Shelf Registration Statement and the
related Prospectus to become usable for their intended purposes
as soon as practicable thereafter. Notwithstanding the foregoing,
the Company may suspend the effectiveness of the Shelf
Registration Statement by written notice to the Holders for up to
two periods not to exceed an aggregate of 45 days in any 90-day
period (each such period, a "Suspension Period") if:
(x) an event occurs and is continuing as a result of which
the Shelf Registration Statement, the Prospectus, any amendment
or supplement thereto, or any document incorporated by reference
therein would, in the Company's judgment, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and
(y) the Company determines in good faith that the disclosure
of such event at such time would be seriously detrimental to the
Company and its subsidiaries;
provided that, in the event the disclosure relates to a previously undisclosed
proposed or pending material business transaction, the disclosure of which the
Company determines in good faith would be reasonably likely to impede the
Company's ability to consummate such transaction, the Company may extend a
Suspension Period from 45 days to 60 days; provided, however, that Suspension
Periods shall not exceed an aggregate of 90 days in any 360-day period. The
Company shall not be required to specify in the written notice to the Holders
the nature of the event giving rise to the Suspension Period.
(ii) Prepare and file with the Commission such amendments
and post-effective amendments to the Shelf Registration Statement
as may be necessary to keep the Shelf Registration Statement
effective during the Effectiveness Period; 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 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the Securities
Act with respect to the disposition of all Debentures covered by
the Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by
the sellers thereof set forth in the Shelf Registration Statement
or supplement to the Prospectus.
(iii) Advise the selling Holders promptly and, if requested
by such selling Holders, to confirm such advice in writing
(subject to Section 4(c)):
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect
to the Shelf Registration Statement or any post-effective
amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to
the Shelf Registration Statement or amendments or
supplements to the Prospectus or for additional information
relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf 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, or
(D) of the existence of any fact or the happening of
any event, during the Effectiveness Period, that makes any
statement of a material fact made in the Shelf 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 Shelf Registration Statement or the
Prospectus in order to make the statements therein not
misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf 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 such
order at the earliest possible time and will provide to each Holder who is
named in the Shelf Registration Statement prompt notice of the withdrawal
of any such order.
(iv) Make available at reasonable times for inspection by one or
more representatives of the selling Holders, designated in writing by
a Majority of Holders whose Transfer Restricted Securities are
included in the Shelf Registration Statement, and any attorney or
accountant retained by such selling Holders, all financial and other
records, pertinent corporate documents and properties of the Company
as shall be reasonably necessary to enable them to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act, and cause the Company's officers, directors, managers
and employees to supply all information reasonably requested by any
such representative or representatives of the selling Holders,
attorney or accountant in connection therewith; provided, however,
that the Company shall have no obligation to deliver information to
any selling Holder or representative pursuant to this Section 4(b)(iv)
unless such selling Holder or representative shall have executed and
delivered a confidentiality agreement in a form acceptable to the
Company relating to such information.
(v) If requested by any selling Holders, promptly incorporate in
the Shelf Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information
as such selling Holders may reasonably request to have included
therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities.
(vi) Furnish to each selling Holder upon their request, without
charge, at least one copy of the Shelf Registration Statement, as
first filed with the Commission, and of each amendment thereto (and
any documents incorporated by reference therein or exhibits thereto
(or exhibits incorporated in such exhibits by reference) as such
Person may request).
(vii) Deliver to each selling Holder, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) and
any amendment or supplement thereto as such Persons reasonably may
request; subject to delivery and continuing effectiveness of any
Suspension Notice delivered pursuant to Section 4(c), the Company
hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders in connection with
the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto.
(viii) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions in the United States as the selling Holders may
reasonably request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required
(A) to register or qualify as a foreign corporation or a dealer of
securities where it is not now so qualified or to take any action that
would subject it to the service of process in any jurisdiction where
it is not now so subject or (B) to subject itself to general or
unlimited service of process or to taxation in any such jurisdiction
if they are not now so subject.
(ix) Cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends (unless required by applicable securities laws); and enable
such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders may request at least two
Business Days before any sale of Transfer Restricted Securities.
(x) Use its best efforts to cause the Transfer Restricted
Securities covered by the Shelf Registration Statement to be
registered with or approved by such other U.S. governmental agencies
or authorities as may be necessary to enable the seller or sellers
thereof to consummate the disposition of such Transfer Restricted
Securities.
(xi) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use its best efforts to prepare a supplement or
post-effective amendment to the Shelf 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 required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which
they are made, not misleading.
(xii) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf Registration
Statement and provide the Trustee under the Indenture with
certificates for the Debentures that are in a form eligible for
deposit with The Depository Trust Company.
(xiii) 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 that is required to be retained in
accordance with the rules and regulations of the NASD.
(xiv) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and all reporting
requirements under the rules and regulations of the Exchange Act.
(xv) 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 of Debentures 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 thereunder 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.
(xvi) Cause all Common Stock covered by the Shelf Registration
Statement to be listed or quoted, as the case may be, on each
securities exchange or automated quotation system on which Common
Stock is then listed or quoted.
(xvii) Provide to each Holder upon written request each document
filed with the Commission pursuant to the requirements of Section 13
and Section 15 of the Exchange Act after the effective date of the
Shelf Registration Statement, unless such document is available
through the Commission's XXXXX system.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "Suspension Notice") from the
Company of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the Shelf Registration Statement
until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xi) hereof; or
(ii) such Holder is advised in writing by the Company that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference
in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such
notice of suspension.
(d) Each Holder agrees by acquisition of the Transfer Restricted
Securities, that no Holder shall be entitled to sell any of such Transfer
Restricted Securities pursuant to a Registration Statement, or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company
with a Notice and Questionnaire as required pursuant to Section 2(e) hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each
Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such
Transfer Restricted Securities as the Company may from time to time
reasonably request in writing. Any sale of any Transfer Restricted
Securities by any Holder shall constitute a representation and warranty by
such Holder that the information relating to such Holder and its plan of
distribution is as set forth in the Prospectus delivered by such Holder in
connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating
to or provided by such Holder to its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material
fact relating to or provided by such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made not misleading.
5. Registration Expenses.
All expenses incident to the Company's performance of or compliance with
this Agreement shall be borne by the Company regardless of whether a Shelf
Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees and expenses (including
filings made with 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 of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the Debentures) and the Company's expenses for messenger
and delivery services and telephone;
(iv) all fees and disbursements of counsel to the Company;
(v) all application and filing fees in connection with listing
(or authorizing for quotation) 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.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of their officers and employees
performing legal, accounting or other duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
6. Indemnification And Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder
of Transfer Restricted Securities by the Shelf Registration Statement
(including each Initial Purchaser), its directors, officers, and
employees and each person, if any, who controls any such Holder within
the meaning of the Securities Act or the Exchange Act (each, an
"Indemnified Holder"), against any loss, claim, damage, liability or
expense, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
action relating to resales of the Transfer Restricted Securities), to
which such Indemnified Holder may become subject, insofar as any such
loss, claim, damage, liability or action arises out of, or is based
upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement
as originally filed or in any amendment thereof, in any
Prospectus, or in any amendment or supplement thereto or (B) any
blue sky application or other document or any amendment or
supplement thereto prepared or executed by the Company (or based
upon written information furnished by or on behalf of the Company
expressly for use in such blue sky application or other document
or amendment on supplement) filed in any jurisdiction
specifically for the purpose of qualifying any or all of the
Transfer Restricted Securities under the securities law of any
state or other jurisdiction (such application or document being
hereinafter called a "Blue Sky Application"); or
(ii) the omission or alleged omission to state therein 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,
and agrees to reimburse each Indemnified Holder promptly upon demand for any
legal or other expenses reasonably incurred by such Indemnified Holder in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of such Holder (or its related Indemnified Holder)
specifically for use therein. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have.
(b) Each Holder, severally and not jointly, agrees to indemnify
and hold harmless the Company, its directors, officers and employees
and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each such Holder, but only
with reference to written information relating to such Holder
furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement set forth in this Section shall be in
addition to any liabilities which any such Holder may otherwise have.
In no event shall any Holder, its directors, officers or any person
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 Transfer Restricted Securities pursuant to
a Shelf Registration Statement exceeds (i) the amount paid by such
Holder for such Transfer Restricted Securities and (ii) the amount of
any damages that such Holder, its directors, officers or any person
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) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 6, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 6 except to the extent it has been materially prejudiced
by such failure and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Holders shall have the
right to employ a single counsel to represent jointly the Holders and
their officers, employees and controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity
may be sought by the Holders against the Company under this Section 6
if the Holders seeking indemnification shall have been advised by
legal counsel that there may be one or more legal defenses available
to such Holders and their respective officers, employees and
controlling persons that are different from or additional to those
available to the Company, and in that event, the fees and expenses of
such separate counsel shall be paid by the Company. No indemnifying
party shall:
(i) without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld) settle
or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action), unless
such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent
or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
(d) The indemnifying party under this Section shall not be liable for
any settlement of any proceeding effected without its written consent,
which shall not be withheld unreasonably, but if settled with such consent
or if there is a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by Section 6(c)
hereof, 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 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement, compromise or consent to the entry of judgment in any
pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could
have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent (x) includes an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and (y) does not include a
statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability (or action in respect
thereof):
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Company from the offering and
sale of the Transfer Restricted Securities on the one hand and a
Holder with respect to the sale by such Holder of the Transfer
Restricted Securities on the other, or
(ii) if the allocation provided by Section (6)(d)(i) is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in Section
6(d)(i) but also the relative fault of the Company on the one
hand and the Holders on the other in connection with the
statements or omissions or alleged statements or alleged
omissions that resulted in such loss, claim, damage or liability
(or action in respect thereof), as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Debentures purchased under the Purchase Agreement (before deducting expenses)
received by the Company, on the one hand, bear to the total proceeds received by
such Holder with respect to its sale of Transfer Restricted Securities on the
other. The relative fault of the parties shall be determined by reference to
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 the Holders on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d).
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 6 shall be deemed to include, for purposes of this Section 6, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim.
Notwithstanding the provisions of this Section 6, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities purchased by it were resold
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute as provided in this
Section 6(d) are several and not joint.
(f) The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors or controlling persons
referred to in Section 6 hereof, and will survive the sale by a Holder of
Transfer Restricted Securities.
7. Rule 144A and Rule 144. The Company agrees with each Holder, for so long
as any Transfer Restricted 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, to such 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 Securities Act in order to permit resales of such Transfer Restricted
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 Transfer Restricted Securities pursuant to Rule
144.
8. No Participation In Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 2 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 2 hereof. The Company further agrees to waive the
defense in any action for specific performance that a remedy at law would
be adequate.
(b) Actions Affecting Transfer Restricted Securities. The Company
shall not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to
this Agreement.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, 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. In addition, the Company shall not
grant to any of its securityholders (other than the Holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in the Shelf Registration Statement provided for in this
Agreement other than the Transfer Restricted Securities.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of a Majority of Holders; provided, however, that with
respect to any matter that directly or indirectly adversely affects the
rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to depart from the provisions hereof, with respect to a matter,
which relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Shelf Registration Statement and does not directly
or indirectly adversely affect the rights of other Holders, may be given by
the Majority Holders, determined on the basis of Debentures being sold
rather than registered under such Shelf Registration Statement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first class
mail (registered or certified, return receipt requested), telex, facsimile
transmission, 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 or the transfer agent of the Common
Stock, as the case may be; and
(ii) if to the Company, initially at its address set forth in the
Purchase Agreement,
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
answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
(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. The
Company hereby agrees to extend the benefit of this Agreement to any Holder
and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(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) Debentures Held by the Company or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities
held by the Company or its Affiliates (other than subsequent Holders if
such subsequent Holders are deemed to be Affiliates solely by reason of
their holding of such Debentures) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(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 law of the State of New York.
(k) Severability. If 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, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(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
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
by the Company with respect to the Transfer Restricted 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.
SIERRA HEALTH SERVICES, INC.
By
-------------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
Acting as Representative of the several
Initial Purchasers
By: BANC OF AMERICA SECURITIES LLC
By
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Authorized Representative
