EXHIBIT 4.10
COVENTRY HEALTH CARE, INC.
8 1/8% Senior Notes due 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
February 1, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
CIBC World Markets Corp.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Coventry Health Care, Inc., a corporation organized under the laws of
the State of Delaware (the "Company"), proposes to issue and sell to certain
purchasers (the "Initial Purchasers"), upon the terms set forth in a purchase
agreement dated January 29, 2002, (the "Purchase Agreement"), its 8 1/8% Senior
Notes due 2012 (the "Securities") relating to the initial placement of the
Securities (the "Initial Placement"). To induce the Initial Purchasers to enter
into the Purchase Agreement and to satisfy a condition of your obligations
thereunder, the Company agrees with you for your benefit and the benefit of the
holders from time to time of the Securities (including the Initial Purchasers)
and the New Securities (as defined herein) (each a "Holder" and, together, the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other Person that,
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 shall mean 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" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such under
the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement, or such shorter
period as will terminate when all New Securities held by Exchanging Dealers or
Initial Purchasers have been sold pursuant thereto.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any Initial
Purchaser) that is a Broker-Dealer and elects to exchange for New Securities any
Securities that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from the Company or any
Affiliate of the Company).
"Final Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities and New
Securities, dated as of February 1, 2002, between the Company and First Union
National Bank, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchasers" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 7(d) hereof.
2
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of Securities and/or New Securities, as applicable, registered
under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"New Securities" shall mean debt securities of the Company identical in
all material respects to the Securities (except that the cash interest and
interest rate step-up provisions and the transfer restrictions shall be modified
or eliminated, as appropriate) and to be issued under the Indenture or the New
Securities Indenture.
"New Securities Indenture" shall mean an indenture between the Company
and the New Securities Trustee, identical in all material respects to the
Indenture (except that the cash interest and interest rate step-up provisions
will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company reasonably
satisfactory to the Initial Purchasers, as trustee with respect to the New
Securities under the New Securities Indenture.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the Company
to issue and deliver to the Holders of the Securities that are not prohibited by
any law or policy of the Commission from participating in such offer, in
exchange for the Securities, a like aggregate principal amount of the New
Securities.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
3
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities and/or New Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Trustee" shall mean the trustee with respect to the Securities and New
Securities under the Indenture.
"Underwriter" shall mean any underwriter of Securities or New Securities
in connection with an offering thereof under a Registration Statement.
2. Registered Exchange Offer.
(a) The Company shall prepare and, not later than 90 days
following the date of the original issuance of the Securities (or if
such 90th day is not a Business Day, the next succeeding Business Day)
shall file with the Commission the Exchange Offer Registration Statement
with respect to the Registered Exchange Offer. The Company shall use its
best efforts to cause the Exchange Offer Registration Statement to
become effective under the Act not later than 150 days following the
date of the original issuance of the Securities (or if such 150th day is
not a Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for New Securities
(assuming that such Holder is not an Affiliate of the Company, acquires
the New Securities in the ordinary course of such Holder's business, has
no arrangements with any Person to participate in the distribution of
the New Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) and to
trade such New Securities from and after their receipt without any
limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion of
the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents;
4
(ii) keep the Registered Exchange Offer open for not
less than 30 days and not more than 45 days (or, in each case,
longer if required by applicable law) after the date notice
thereof is mailed to the Holders;
(iii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act,
supplemented and amended as required, under the Act to ensure
that it is available for sales of New Securities by Exchanging
Dealers or the Initial Purchasers during the Exchange Offer
Registration Period;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan in New York City, which may be the Trustee, the New
Securities Trustee or an Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at
any time prior to the close of business, New York time, on the
last Business Day on which the Registered Exchange Offer is
open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the
Commission (A) stating that the Company is conducting the
Registered Exchange Offer in reliance on the position of the
Commission in Exxon Capital Holdings Corporation (pub. avail.
May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
1991); and (B) including a representation that the Company has
not entered into any arrangement or understanding with any
Person to distribute the New Securities to be received in the
Registered Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the New Securities in the
ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution
of the New Securities; and
(vii) comply in all material respects with all
applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in
accordance with Section 5(s) all Securities so accepted for
exchange; and
(iii) cause the Trustee or New Securities Trustee, as
the case may be, promptly to authenticate and deliver to each
Holder of
5
Securities a principal amount of New Securities equal to the
principal amount of the Securities of such Holder so accepted
for exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the New Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail.
June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May
13, 1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993 and similar no-action letters; and (y) must
comply with the registration and prospectus delivery requirements of the
Act in connection with any secondary resale transaction which must be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable,
of Regulation S-K under the Act if the resales are of New Securities
obtained by such Holder in exchange for Securities acquired by such
Holder directly from the Company or one of its Affiliates. Accordingly,
each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that, at the time of the
consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or
understanding with any Person to participate in the distribution
of the Securities or the New Securities within the meaning of
the Act;
(iii) such Holder is not an Affiliate of the Company or
if it is an Affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Act to
the extent applicable;
(iv) if such Holder is not a Broker-Dealer, that it is
not engaged in, and does not intend to engage in, the
distribution of the New Securities; and
(v) if such Holder is a Broker-Dealer, that it will
receive New Securities for its own account in exchange for
Securities that were acquired as a result of market-making
activities or other trading activities and that it will deliver
a prospectus in connection with any resale of such New
Securities.
(f) If any Initial Purchaser determines that it is not eligible
to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment,
at the request of such Initial Purchaser, the Company shall issue and
deliver to such Initial Purchaser or the Person purchasing New
Securities registered under a Shelf Registration Statement as
contemplated by Section 3 hereof from such Initial Purchaser, in
exchange for such Securities, a like principal amount of New Securities.
The
6
Company shall use its best efforts to cause the CUSIP Service Bureau to
issue the same CUSIP number for such New Securities as for New
Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted
to effect the Registered Exchange Offer as contemplated by Section 2
hereof; (ii) for any other reason the Exchange Offer Registration
Statement is not declared effective within 150 days following the date
of the original issuance of the Securities or the Registered Exchange
Offer is not consummated within 180 days following the date of the
original issuance of the Securities; (iii) any Initial Purchaser so
requests with respect to Securities that are not eligible to be
exchanged for New Securities in the Registered Exchange Offer and that
are held by it following consummation of the Registered Exchange Offer;
(iv) any Holder (other than an Initial Purchaser) is not eligible to
participate in the Registered Exchange Offer or does not receive freely
tradeable New Securities in the Registered Exchange Offer other than by
reason of such Holder being an Affiliate of the Company (it being
understood that the requirement that a participating Broker-Dealer
deliver the prospectus contained in the Exchange Offer Registration
Statement in connection with sales of New Securities shall not result in
such New Securities being not "freely tradeable"); or (v) in the case of
any Initial Purchaser that participates in the Registered Exchange Offer
or acquires New Securities pursuant to Section 2(f) hereof, such Initial
Purchaser does not receive freely tradeable New Securities in exchange
for Securities constituting any portion of an unsold allotment (it being
understood that (x) the requirement that an Initial Purchaser deliver a
Prospectus containing the information required by Item 507 or 508 of
Regulation S-K under the Act in connection with sales of New Securities
acquired in exchange for such Securities shall result in such New
Securities being not "freely tradeable"; and (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of New
Securities acquired in the Registered Exchange Offer in exchange for
Securities acquired as a result of market-making activities or other
trading activities shall not result in such New Securities being not
"freely tradeable"), the Company shall effect a Shelf Registration
Statement in accordance with subsection (b) below.
(b) If required pursuant to subsection (a) above,
(i) the Company shall as promptly as practicable, file
with the Commission and thereafter shall use its best efforts to
cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the
Securities or the New Securities, as applicable, by the Holders
thereof from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder (other
than an Initial Purchaser) shall be entitled to have the
Securities or New Securities
7
held by it covered by such Shelf Registration Statement unless
such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder; and
provided further, that with respect to New Securities received
by an Initial Purchaser in exchange for Securities constituting
any portion of an unsold allotment, the Company may, if
permitted by current interpretations by the Commission's staff,
file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by
Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of its obligations under this subsection with
respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf
Registration Statement.
(ii) the Company shall use its best efforts to keep the
Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to
permit the Prospectus forming part thereof to be usable by
Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the Commission
or such shorter period that will terminate when all the
Securities or New Securities, as applicable, covered by the
Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Company shall
be deemed not to have used its best efforts to keep the Shelf
Registration Statement effective during the requisite period if
it voluntarily takes any action that would result in Holders of
Securities or New Securities covered thereby not being able to
offer and sell such Securities or New Securities during that
period, unless (A) such action is required by applicable law; or
(B) such action is taken by the Company in good faith and for
valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture
of assets, so long as the Company promptly thereafter complies
with the requirements of Section 5(k) hereof, if applicable:
provided, however, that in any case if such Registration Default
occurs for a continuous period in excess of 30 days, Special
Interest shall be payable in accordance with Section 4 hereof
from the day such Registration Default occurs until such
Registration Default is cured.
(iii) the Company shall cause the Shelf Registration
Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf
Registration Statement or such amendment or supplement, (A) to
comply in all material respects with the applicable requirements
of the Act and the rules and regulations of the Commission; and
(B) not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
8
4. Special Interest. If (a) on or prior to the 90th day following the
original issue date of the Securities, neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement has been filed with the
Commission, (b) on or prior to the 150th day following the original issue date
of the Securities, neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement has been declared effective, (c) on or prior to the
180th day following the original issue date of the Securities, neither the
Registered Exchange Offer has been consummated nor the Shelf Registration
Statement has been declared effective, or (d) after either the Exchange Offer
Registration Statement or the Shelf Registration Statement has been declared
effective, except as provided in Section 3(b)(ii) hereof, such Registration
Statement thereafter ceases to be effective or usable in connection with resales
of Securities or New Securities in accordance with and during the periods
specified in this Agreement (each such event referred to in clauses (a) through
(d), a "Registration Default"), interest ("Special Interest") will accrue on the
principal amount of the Securities and the New Securities (in addition to the
stated interest on the Securities and New Securities) from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured. Special Interest will
accrue at a rate of 0.25% per annum during the 90-day period immediately
following the occurrence of such Registration Default and shall increase by
0.25% per annum at the end of each subsequent 90-day period, but in no event
shall such rate exceed 1.00% per annum.
All obligations of the Company set forth in the preceding paragraph that
are outstanding with respect to any Security at the time such Security is
exchanged for a New Security shall survive until such time as all such
obligations with respect to such Security have been satisfied in full.
5. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to you, within a reasonable time prior to
the filing thereof with the Commission, a copy of any Shelf
Registration Statement or Exchange Offer Registration Statement,
and each amendment thereof and each amendment or supplement, if
any, to the Prospectus included therein (including all documents
incorporated by reference therein after the initial filing) and
shall use its best efforts to reflect in each such document,
when so filed with the Commission, such comments as you
reasonably propose;
(ii) include the information set forth in Annex A hereto
on the facing page of the Exchange Offer Registration Statement,
in Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of the
Exchange Offer, in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus contained in the Exchange
Offer Registration Statement, and in
9
Annex D hereto in the letter of transmittal delivered pursuant
to the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement,
include the names of the Holders that propose to sell Securities
or New Securities, as applicable, pursuant to the Shelf
Registration Statement as selling security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto
and any Prospectus forming part thereof and any amendment or
supplement thereto complies in all material respects with the
Act and the rules and regulations thereunder; and
(ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, 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.
(c) The Company shall advise you, the Holders of Securities or
New Securities covered by any Shelf Registration Statement and any
Exchanging Dealer or Initial Purchaser under any Exchange Offer
Registration Statement that has provided in writing to the Company a
telephone or facsimile number and address for notices, and, if requested
by you or any such Holder, Exchanging Dealer or Initial Purchaser, shall
confirm such advice in writing (which notice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the
use of the Prospectus until the Company shall have remedied the basis
for such suspension):
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for any amendment
or supplement to the Registration Statement or the Prospectus or
for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
Securities or New
10
Securities included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any
change in the Registration Statement or the Prospectus so that,
as of such date, the statements therein are not misleading and
do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case
of the Prospectus, in the light of the circumstances under which
they were made) not misleading.
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the Securities or New Securities
therein for sale in any jurisdiction at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities or
New Securities covered by any Shelf Registration Statement, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including all material incorporated
therein by reference, and, if the Holder so requests in writing, all
exhibits thereto (including exhibits incorporated by reference therein).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities or New Securities covered by any
Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request. The Company consents to the use of
the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Securities or New Securities in connection with the
offering and sale of the Securities or New Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer or
Initial Purchaser which so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective
amendment thereto, including all material incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all
exhibits thereto (including exhibits incorporated by reference therein).
(h) The Company shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other Person required to
deliver a Prospectus during the Exchange Offer Registration Period,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement
thereto as any such Person may reasonably request. The Company consents
to the use of the Prospectus or any amendment or supplement thereto by
any Initial Purchaser, any Exchanging Dealer and any such other Person
that may be required to deliver a Prospectus following the Registered
11
Exchange Offer in connection with the offering and sale of the New
Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering
of Securities or New Securities pursuant to any Registration Statement,
the Company shall arrange, if necessary, for the qualification of the
Securities or the New Securities for sale under the laws of such
jurisdictions as any Holder shall reasonably request and will maintain
such qualification in effect so long as required; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the Initial Placement, the Registered Exchange Offer or
any offering pursuant to a Shelf Registration Statement, in any such
jurisdiction where it is not then so subject.
(j) The Company shall cooperate with the Holders of Securities
and New Securities to facilitate the timely preparation and delivery of
certificates representing New Securities or Securities to be issued or
sold pursuant to any Registration Statement free of any restrictive
legends and in such denominations and registered in such names as
Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company shall promptly prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchasers
or Exchanging Dealers of the Securities or New Securities included
therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. In such circumstances, the period of
effectiveness of the Exchange Offer Registration Statement provided for
in Section 2 and the Shelf Registration Statement provided for in
Section 3(b) shall each be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to
Section 5(c) to and including the date when the Initial Purchasers, the
Holders of the Securities or New Securities and any known Exchanging
Dealer shall have received such amended or supplemented Prospectus
pursuant to this Section.
(l) Not later than the effective date of any Registration
Statement, the Company shall provide a CUSIP number for the Securities
or the New Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates
for such Securities or New Securities, in a form eligible for deposit
with The Depository Trust Company.
(m) The Company shall comply in all material respects with all
applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable after
the effective date of
12
the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.
(n) The Company shall cause the Indenture or the New Securities
Indenture, as the case may be, to be qualified under the Trust Indenture
Act in a timely manner.
(o) The Company may require each Holder of Securities or New
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Company such information regarding the Holder and the
distribution of such Securities as the Company may from time to time
reasonably require for inclusion in such Registration Statement. The
Company may exclude from such Shelf Registration Statement the
Securities or New Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company
shall enter into such agreements and take all other appropriate actions
(including if requested an underwriting agreement in customary form) in
order to expedite or facilitate the registration or the disposition of
the Securities or New Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those
set forth in Section 7 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if
any, with respect to all parties to be indemnified pursuant to Section
7).
(q) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available for inspection by the
Holders of Securities or New Securities to be registered
thereunder, any Underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such
Underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries as the Holders may reasonably request;
(ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably
requested by the Holders or any such Underwriter, attorney,
accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence
examinations; provided, however, that any information that is
designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall
be kept confidential by the Holders or any such Underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through
a third party without an accompanying obligation of
confidentiality;
13
(iii) make such representations and warranties to the
Holders of Securities or New Securities registered thereunder
and the Underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
Underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such Holders and
Underwriters;
(v) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and
financial data are, or are required to be, included in the
Registration Statement), addressed to each selling Holder of
Securities or New Securities registered thereunder and the
Underwriters, if any, in customary form and covering matters of
the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance
with Section 5(k) and with any customary conditions contained in
the underwriting agreement or other agreement entered into by
the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement,
the Company shall upon the request of an Initial Purchaser or an
Exchanging Dealer:
(i) make reasonably available for inspection by such
Initial Purchaser or Exchanging Dealer, and any attorney,
accountant or other agent retained by such Initial Purchaser or
Exchanging Dealer, all relevant financial and other records,
pertinent corporate documents and properties of the Company and
its subsidiaries;
(ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably
requested by such
14
Initial Purchaser or Exchanging Dealer or any such attorney,
accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence
examinations; provided, however, that any information that is
designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall
be kept confidential by such Initial Purchaser or Exchanging
Dealer or any such attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the
public generally or through a third party without an
accompanying obligation of confidentiality;
(iii) make such representations and warranties to such
Initial Purchaser or Exchanging Dealer, in form, substance and
scope as are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters including,
but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to such Initial
Purchaser or Exchanging Dealer and their respective counsel,
addressed to such Initial Purchaser or Exchanging Dealer,
covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as
may be reasonably requested by such Initial Purchaser or
Exchanging Dealer or their respective counsel;
(v) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and
financial data are, or are required to be, included in the
Registration Statement), addressed to such Initial Purchaser or
Exchanging Dealer, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings, or if requested by such
Initial Purchaser or Exchanging Dealer or their respective
counsel in lieu of a "cold comfort" letter, an agreed-upon
procedures letter under Statement on Auditing Standards No. 35,
covering matters requested by such Initial Purchaser or Exchange
Dealer or their respective counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or Exchange
Dealer or their respective counsel, including those to evidence
compliance with Section 5(k) and with conditions customarily
contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the effective date of any post-effective amendment
to the Exchange Offer
15
Registration Statement or as requested by any Initial Purchaser which holds New
Securities or Exchanging Dealer.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the New Securities,
the Company shall xxxx, or caused to be marked, on the Securities so
exchanged that such Securities are being canceled in exchange for the
New Securities. In no event shall the Securities be marked as paid or
otherwise satisfied.
(t) The Company will use its best efforts (i) if the Securities
have been rated prior to the initial sale of such Securities, to confirm
such ratings will apply to the Securities or the New Securities, as the
case may be, covered by a Registration Statement; or (ii) if the
Securities were not previously rated, to cause the Securities or New
Securities covered by a Registration Statement to be rated with at least
one nationally recognized statistical rating agency, if so requested by
Majority Holders with respect to the related Registration Statement or
by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or New Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Rules of Fair Practice and the By-Laws of the
National Association of Securities Dealers, Inc.) thereof, whether as a
Holder of such Securities or New Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such Broker-Dealer in complying with the requirements
of such Rules and By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging
a "qualified independent underwriter" (as defined in such Rules)
to participate in the preparation of the Registration Statement,
to exercise usual standards of due diligence with respect
thereto and, if any portion of the offering contemplated by such
Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of
such Securities or New Securities;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 6 hereof; and
(iii) providing such information to such Broker-Dealer
as may be required in order for such Broker-Dealer to comply
with the requirements of such Rules.
(v) The Company shall use its best efforts to take all other
steps necessary to effect the registration of the Securities or the New
Securities, as the case may be, covered by a Registration Statement.
16
6. Registration Expenses. The Company shall bear all expenses incurred
in connection with the performance of its obligations under Sections 2, 3 and 5
hereof and, in the event of any Shelf Registration Statement, will reimburse the
Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursements of counsel acting in connection therewith.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Holder of Securities or New Securities, as the case may be, covered by
any Registration Statement (including each Initial Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 5(h)
hereof, each Exchanging Dealer), the directors, officers, employees and
agents of each such Holder and each Person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and
all Losses, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
Losses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by
or on behalf of any such Holder specifically for inclusion therein;
provided, further, that with respect to any untrue statement or omission
of material fact made in any preliminary Prospectus, the indemnity
provided in this Section 7(a) shall not inure to the benefit of any
Initial Purchaser or Exchange Dealer (a "Selling Holder") from whom the
person asserting any such Loss purchased the Securities or New
Securities concerned, to the extent that any such loss, claim, damage or
liability of such Underwriter occurs where it shall be determined by a
court of competent jurisdiction by final and non-appealable judgment
that (i) delivery of the Prospectus was required under the Act, (ii) the
Company had previously furnished copies of the Prospectus to the Selling
Holder in sufficient quantity and in sufficient time to enable the
Selling Holder to satisfy their delivery obligations under the Act,
(iii) the untrue statement or omission of a material fact contained in
the preliminary Prospectus was corrected in the Prospectus and (iv) such
Loss results solely from the fact that there was not sent or given to
such person at or prior to the written confirmation of the sale of such
Securities or New Securities to such person, a copy of the Prospectus
This
17
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
The Company also agrees to indemnify or contribute as provided in
Section 7(d) to Losses of any Underwriter of Securities or New Securities, as
the case may be, registered under a Shelf Registration Statement, their
directors, officers, employees or agents and each Person who controls such
Underwriter on substantially the same basis as that of the indemnification of
the Initial Purchasers and the selling Holders provided in this Section 7(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 5(p) hereof.
(b) Each Holder of Securities or New Securities covered by a
Registration Statement (including each Initial Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 5(h)
hereof, each Exchanging Dealer) severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs such Registration Statement and each Person who controls the
Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each such
Holder, but only with reference to written information relating to such
Holder furnished to the Company by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will
not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel
shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest; (ii) the actual
or potential defendants in, or targets of, any such action include both
the indemnified party
18
and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional
to those available to the indemnifying party; (iii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section is unavailable to or insufficient to hold harmless
an indemnified party for any reason, then each applicable indemnifying
party shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which such indemnified party
may be subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the one hand,
and such indemnified party, on the other hand, from the Initial
Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any
subsequent Holder of any Security or New Security be responsible, in the
aggregate, for any amount in excess of the purchase discount or
commission applicable to such Security, or in the case of a New
Security, applicable to the Security that was exchangeable into such New
Security, as set forth on the cover page of the Final Memorandum, nor
shall any Underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities
purchased by such Underwriter under the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party
and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be
deemed to be equal to the sum of (x) the total net proceeds from the
Initial Placement (before deducting expenses) as set forth on the cover
page of the Final Memorandum and (y) the total amount of additional
interest which the Company was not required to pay as a result of
registering the Securities or New Securities covered by the Registration
Statement which resulted in such Losses. Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions as set forth on the cover page of the Final
Memorandum, and benefits received by any other Holders shall
19
be deemed to be equal to the value of receiving Securities or New
Securities, as applicable, registered under the Act. Benefits received
by any Underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted
in such Losses. Relative fault shall be determined by reference to,
among other things, whether any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
parties agree that it would not be just and equitable if contribution
were determined by pro rata allocation (even if the Holders were treated
as one entity for such purpose) or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section, each Person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and
agent of such Holder shall have the same rights to contribution as such
Holder, and each Person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section will 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 this Section hereof, and will survive the sale by
a Holder of Securities or New Securities covered by a Registration
Statement.
8. Underwritten Registrations.
(a) If any of the Securities or New Securities, as the case may
be, covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters shall be selected by
the Majority Holders.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i)
agrees to sell such Person's Securities or New Securities, as the case
may be, 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
reasonably required under the terms of such underwriting arrangements.
9. 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
20
with respect to its securities that is inconsistent with the rights granted to
the Holders herein or otherwise conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
holders of a majority of the principal amount of the outstanding Securities (or,
after the consummation of any Registered Exchange Offer in accordance with
Section 2 hereof, of New Securities); provided that, with respect to any matter
that directly or indirectly 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 departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Securities or New Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the
basis of Securities or New Securities, as the case may be, being sold rather
than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this Section,
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy
in like manner to Xxxxxxx Xxxxx Xxxxxx Inc;
(b) if to you, initially at the respective addresses set forth
in the Purchase Agreement; and
(c) 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 when received.
The Initial Purchasers or the Company by notice to the other parties may
designate additional or different addresses for subsequent notices or
communications.
12. Successors. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of Securities and the New Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Securities or New Securities, and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
21
13. Counterparts. This Agreement may be in signed counterparts, each of
which shall an original and all of which together shall constitute one and the
same agreement.
14. Headings. The headings used herein are for convenience only and
shall not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York.
16. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
17. Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or New Securities is required hereunder, Securities or New Securities, as
applicable, held by the Company or its Affiliates (other than subsequent Holders
of Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company and the several Initial Purchasers.
Very truly yours,
COVENTRY HEALTH CARE, INC.
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXXX XXXXX BARNEY INC.
XXXXXXX, XXXXX & CO.
XXXXXX BROTHERS INC.
CIBC WORLD MARKETS CORP.
By: XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
23
ANNEX A
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business one
year after the Expiration Date, or such shorter period as will terminate when
all New Securities held by Exchanging Dealers or Initial Purchasers have been
sold pursuant hereto, it will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in
exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business one
year after the Expiration Date or such shorter period as will terminate when all
New Securities covered hereby have been sold pursuant thereto, it will make this
Prospectus, as amended or supplemented, available to any Broker-Dealer for use
in connection with any such resale. In addition, until __________, 2002, all
dealers effecting transactions in the New Securities may be required to deliver
a prospectus.
The Company will not receive any proceeds from any sale of New
Securities by brokers-dealers. New Securities received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resells New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date or such shorter
period as will terminate when all New Securities covered hereby have been sold
pursuant thereto, the Company will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
Broker-Dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the holder of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the Securities (including any Broker-Dealers) against certain
liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
C-2
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
--------------------------------------------
Address:
--------------------------------------------
--------------------------------------------
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
