EXHIBIT 4.3
EXECUTION COPY
XXXXXX RESPIRATORY CARE INC.
$115,000,000
9 1/8% Senior Subordinated Notes due 2008
RIVER HOLDING CORP.
300,000 Shares of 11 1/2%
Senior Exchangeable PIK Preferred Stock due 2010
REGISTRATION AGREEMENT
New York, New York
April 7, 1998
Xxxxxxx Xxxxx Xxxxxx
Xxxxxxx Brothers Inc
BT Xxxx. Xxxxx Incorporated
c/o Salomon Brothers Inc
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Respiratory Care Inc., a California corporation (the "Company")
proposes to issue and sell to the several initial purchasers named in Schedule A
hereto (the "Purchasers"), upon the terms set forth in a purchase agreement
dated the date hereof (the "Purchase Agreement"), $115,000,000 aggregate
principal amount of the Company's 9 1/8% Senior Subordinated Notes due 2008 (the
"Notes"). In addition, River Holding Corp. ("Holding") proposes to issue and
sell to the Purchasers, upon the terms set forth in the Purchase Agreement,
300,000 shares of Holding's 11 1/2% Senior Exchangeable PIK Preferred Stock due
2010, $.01 par value per share (the "Holding Preferred Stock"). The Holding
Preferred Stock is exchangeable at Holding's option, subject to certain
conditions, in whole but not in part, for either (a) the Company's 11 1/2%
Subordinated Exchange Debentures due 2010 (the "Company Exchange Debentures") or
(b) the Company's 11 1/2% Senior Exchangeable PIK Preferred Stock due 2010 (the
"Company Preferred Stock" and, together with the Notes, the Holding Preferred
Stock and the Company Exchange Debentures, the "Securities"). As an inducement
to the Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to your obligations thereunder, the Company and Holding jointly and
severally agree with you, (i) for your benefit and (ii) for the benefit of the
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holders from time to time of the Securities (including the Purchasers) (each of
the foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
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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" means the Securities Act of 1933, as amended, and the rules and
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regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which,
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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.
"Commission" means the Securities and Exchange Commission.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission promulgated thereunder.
"Exchange Indenture" means the indenture governing the Company
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Exchange Debentures.
"Exchange Offer Registration Period" means the 180-day period
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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.
"Exchange Offer Registration Statement" means one or more registration
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statements of the Company and Holding 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, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include the
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Purchasers) which is a broker-dealer electing to
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exchange Securities acquired for its own account as a result of market-making
activities or other trading activities for New Securities.
"Holder" has the meaning set forth in the preamble hereto.
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"Indenture" means the Indenture relating to the Notes and the New
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Notes dated as of April 7, 1998, between Holding, the Company and United States
Trust Company of New York, as trustee, as the same may be amended from time to
time in accordance with the terms thereof.
"Initial Placement" means the issuance and sale of the Notes and the
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Holding Preferred Stock.
"Majority Holders" means the Holders of a majority of the aggregate
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principal amount or liquidation preference, as applicable, of any securities
registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
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bankers and manager or managers that shall administer an underwritten offering.
"New Company Preferred Stock" means preferred stock of the Company
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identical in all material respects to the Company Preferred Stock (except that
the dividend rate step-up provisions and the transfer restrictions will be
modified or eliminated, as appropriate), to be issued pursuant to the
Certificate of Designation for the Company Preferred Stock.
"New Company Exchange Debentures" means exchange debentures of the
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Company identical in all material respects to the Company Exchange Debentures
(except that the interest rate step-up provisions and the transfer restrictions
will be modified or eliminated, as appropriate), to be issued pursuant to the
Exchange Indenture.
"New Holding Preferred Stock" means preferred stock of Holding
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identical in all material respects to the Holding Preferred Stock (except that
the dividend rate step-up provisions and the transfer restrictions will be
modified or eliminated, as appropriate), to be issued pursuant to the
Certificate of Designation for the Holding Preferred Stock.
"New Notes" means notes of the Company identical in all material
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respects to the Notes (except that the interest rate step-up provisions and the
transfer
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restrictions will be modified or eliminated, as appropriate), to be issued
pursuant to the Indenture.
"New Securities" means collectively, the New Notes, New Holding
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Preferred Stock and, if applicable, New Company Exchange Debentures and New
Company Preferred Stock
"Prospectus" means the prospectus included in any Registration
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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 to the Prospectus,
including post-effective amendments.
"Registered Exchange Offer" means the proposed offer or offers to the
-------------------------
Holders to issue and deliver to such Holders, in exchange for the Notes or the
Holding Preferred Stock (or, if the Holding Preferred Stock has been exchanged
therefor, Company Exchange Debentures or Company Preferred Stock), as
applicable, a like principal amount or liquidation preference, as applicable, of
applicable New Securities.
"Registration Securities" has the meaning set forth in Section 3(a)
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hereof.
"Registration Statement" means any Exchange Offer Registration
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Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, all amendments
and supplements to such registration statement, including, without limitation,
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Securities" has the meaning set forth in the preamble hereto.
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"Shelf Registration" means a registration effected pursuant to Section
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3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
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hereof.
"Shelf Registration Statement" means a "shelf" registration statement
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of the Company and Holding pursuant to the provisions of Section 3 or Section 5
hereof which
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covers some of or all the Securities 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, all 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.
"Transfer Agent" means Holding's transfer agent for the Holding
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Preferred Stock and the New Holding Preferred Stock or, if the Holding Preferred
Stock has been exchanged therefor, the Company Preferred Stock and New Company
Preferred Stock.
"Trustee" means the trustee with respect to the Notes and the New
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Notes under the Indenture or, if the Holding Preferred Stock has been exchanged
therefor, the Company Exchange Debentures and New Company Exchange Debentures.
"underwriter" means any underwriter of securities in connection with
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an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of New Securities by Exchanging
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Dealers; Private Exchange. (a) The Company and Holding shall prepare and, not
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later than 60 days after the date of the original issuance of the Notes and the
Holding Preferred Stock, shall file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer. The
Company and Holding shall use their best efforts to cause the Exchange Offer
Registration Statement to become effective under the Act within 150 days after
the date of the original issuance of the Notes and the Holding Preferred Stock.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and Holding 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 or Holding within the
meaning of the Act, acquires the New Securities in the ordinary course of such
Holder's business and 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) to trade
such New Securities from and after their receipt without any limitations or
restrictions under the Act and without
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material restrictions under the securities laws of the several states of the
United States.
(c) In connection with the Registered Exchange Offer, the Company and
Holding 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;
(ii) keep the Registered Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York;
(iv) 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 shall remain open; and
(v) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company and Holding shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee or the Transfer Agent, as the case may
be, for cancelation all Securities so accepted for exchange; and
(iii) cause the Trustee or the Transfer Agent, as the case may be,
promptly to authenticate and deliver to each Holder of Securities, New
Securities equal in principal amount or liquidation preference to the
Securities of such Holder so accepted for exchange.
(e) The Purchasers, the Company and Holding acknowledge that,
pursuant to current interpretations by the Commission's staff of Section 5 of
the Act, and in the absence of an applicable exemption therefrom, each
Exchanging Dealer is required to deliver a Prospectus in connection with a sale
of any New Securities received by
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such Exchanging Dealer pursuant to the Registered Exchange Offer in exchange for
Securities acquired for its own account as a result of market-making activities
or other trading activities. Accordingly, the Company and Holding shall:
(i) include the information set forth in Annex A hereto on the
cover 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 forming a
part of the Exchange Offer Registration Statement, and in Annex D hereto in
the Letter of Transmittal delivered pursuant to the Registered Exchange
Offer; and
(ii) use their best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act during the Exchange Offer
Registration Period for delivery by Exchanging Dealers in connection with
sales of New Securities received pursuant to the Registered Exchange Offer,
as contemplated by Section 4(h) below.
(f) In the event that any 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 Purchaser, the Company and Holding shall issue and deliver to
such Purchaser, in exchange for such Securities, a like principal amount or
liquidation preference of New Securities (which shall be subject to restrictions
on transfer under the Act and the securities laws of the several states of the
United States). The Company and Holding shall seek to cause the CUSIP Service
Bureau to issue the same CUSIP numbers for such New Securities as for New
Securities issued pursuant to the Registered Exchange Offer. The Company shall
cause such principal amount or liquidation preference of New Securities (which
shall not be subject to such restrictions on transfer) to be delivered to a
party purchasing such New Securities from such Purchaser registered under a
Shelf Registration Statement as contemplated by Section 3 hereof.
3. Shelf Registration. If, (i) because of any change in law or
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applicable interpretations thereof by the Commission's staff, the Company and
Holding are 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
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effective within 150 days after the Closing Date or the Registered Exchange
Offer is not consummated within 180 days after the Closing Date, (iii) any
Purchaser so requests with respect to Securities (or any New Securities received
pursuant to Section 2(f)) not eligible to be exchanged for New Securities in a
Registered Exchange Offer or, in the case of any Purchaser that participates in
any Registered Exchange Offer, such Purchaser does not receive freely tradable
New Securities, (iv) any Holder (other than a Purchaser) is not eligible to
participate in the Registered Exchange Offer or (v) in the case of any such
Holder that participates in the Registered Exchange Offer, such Holder does not
receive freely tradable New Securities in exchange for tendered securities,
other than by reason of such Holder being an affiliate of the Company or Holding
within the meaning of the Act (it being understood that, for purposes of this
Section 3, (x) the requirement that a Purchaser deliver a Prospectus containing
the information required by Items 507 and/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 following provisions shall apply:
(a) The Company and Holding shall as promptly as practicable (but in
no event more than 30 days after so required or requested pursuant to this
Section 3), file with the Commission and thereafter shall use their 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 from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf Registration
Statement (such Securities or New Securities, as applicable, to be sold by such
Holders under such Shelf Registration Statement being referred to herein as
"Registration Securities"); provided, however, that, with respect to New
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Securities received by a Purchaser in exchange for Securities constituting any
portion of an unsold allotment, the Company and Holding 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 Regulation S-K Items 507 and/or 508, as applicable, in
satisfaction of its obligations under this paragraph (a) with respect thereto,
and any such Exchange Offer Registration Statement,
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as so amended, shall be referred to herein as, and governed by the provisions
herein applicable to, a Shelf Registration Statement.
(b) The Company and Holding shall use their best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years after the later of (x) the date of the original issuance of the Notes and
the Holding Preferred Stock (or until one year after such date if such Shelf
Registration Statement is filed at the request of a Purchaser) and (y) the last
date on which any Affiliate of Holding or the Company, as applicable, was a
beneficial owner of the Securities 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 and Holding shall be deemed not to have used their best
efforts to keep the Shelf Registration Statement effective during the Shelf
Registration Period if either of them voluntarily takes any action that would
result in Holders of securities covered thereby not being able to offer and sell
such securities during that period, unless (i) such action is required by
applicable law or (ii) such action is taken by the Company or Holding in good
faith and for valid business reasons (not including avoidance of the Company's
or Holding's obligations hereunder), including the acquisition or divestiture of
assets, so long as the Company or Holding promptly thereafter complies with the
requirements of Section 4(k) hereof, if applicable.
4. Registration Procedures. In connection with any Shelf
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Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company and Holding shall furnish to the Purchasers, prior to
the filing thereof with the Commission, a copy of any Shelf Registration
Statement and any Exchange Offer Registration Statement, each amendment
thereof and each amendment or supplement, if any, to the Prospectus
included therein and shall use their best efforts to reflect in each such
document, when so filed with the Commission, such comments as the
Purchasers or any Holder reasonably may propose.
(b) The Company and Holding shall ensure that (i) any Registration
Statement and any amendment thereto and any Prospectus forming part thereof
and any
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amendment or supplement thereto complies in all material respects with the
Act and the rules and regulations thereunder, (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 and (iii) any Prospectus forming part of any
Registration Statement, and any amendment or supplement to such Prospectus,
does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) (1) The Company and Holding shall advise the Purchasers and, in
the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, if requested by you or any such Holder, confirm such
advice in writing:
(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; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) The Company and Holding shall advise the Purchasers and, in the
case of a Shelf Registration Statement, the Holders of securities covered
thereby, and, in the case of an Exchange Offer Registration Statement, any
Exchanging Dealer which has provided in writing to the Company and Holding
a telephone or facsimile number and address for notices, and, if requested
by the Purchasers or any such Holder or Exchanging Dealer, confirm such
advice in writing:
(i) 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;
(ii) of the receipt by the Company or Holding of any
notification with respect to the suspension of the qualification of
the securities included therein for sale in any jurisdiction or the
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initiation or threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires the making of
any changes 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 (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite
changes have been made).
(d) The Company and Holding shall use their best efforts to obtain
the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) The Company and Holding shall furnish to each Holder of
securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, any
documents incorporated by reference therein and all exhibits thereto
(including those incorporated by reference therein).
(f) The Company and Holding shall, during the Shelf Registration
Period, deliver to each Holder of securities included within the coverage
of 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; and the Company and Holding consent to the
use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of securities in connection with the offering and sale of
the securities covered by the Prospectus or any amendment or supplement
thereto.
(g) The Company and Holding shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules and, if the Exchanging Dealer so
requests in writing, any
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documents incorporated by reference therein and all exhibits thereto
(including those incorporated by reference therein).
(h) The Company and Holding shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging
Dealer in connection with a sale of New Securities received by it pursuant
to the Registered Exchange Offer; and the Company and Holding consent to
the use of the Prospectus or any amendment or supplement thereto by any
such Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or any other offering of
securities pursuant to any Registration Statement, the Company and Holding
shall register or qualify or cooperate with the Holders of securities
included therein and their respective counsel in connection with the
registration or qualification of such securities for offer and sale under
the securities or blue sky laws of such jurisdictions as any such Holder
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions
of the securities covered by such Registration Statement; provided,
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however, that the Company and Holding will not be required to qualify
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generally to do business in any jurisdiction where they are not then so
qualified or to take any action which would subject them to general service
of process or to taxation in any such jurisdiction where they are not then
so subject.
(j) The Company and Holding shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of
certificates representing securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request prior to
sales of securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) above, the Company and Holding shall promptly prepare a post-
effective amendment to any Registration Statement or an amendment or
supplement to the related Prospectus or file any other
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required document so that, as thereafter delivered to purchasers of the
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.
(l) Not later than the effective date of any such Registration
Statement hereunder, the Company and Holding shall provide CUSIP numbers
for the Securities or New Securities, as the case may be, registered under
such Registration Statement, and provide the Transfer Agent or the Trustee
(or the transfer agent for the Company Preferred Stock or the trustee under
the Exchange Indenture), as applicable, with printed certificates for such
Securities or New Securities, in a form, if requested by the applicable
Holder or Holder's Counsel, eligible for deposit with The Depository Trust
Company or any successor thereto under the Certificate of Designation for
the Holding Preferred Stock or the Indenture (or the certificate of
designation for the Company Preferred Stock or the Exchange Indenture), as
applicable.
(m) The Company and Holding shall use their best efforts to comply
with all applicable rules and regulations of the Commission to the extent
and so long as they are applicable to the Registered Exchange Offer or the
Shelf Registration and will make generally available to their security
holders a consolidated earnings statement (which need not be audited)
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as
soon as practicable after the end of such period, which consolidated
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(n) The Company and Holding shall cause the Indenture and the
Exchange Indenture, as applicable, to be qualified under the Trust
Indenture Act of 1939, as amended, on or prior to the effective date of any
Shelf Registration Statement or Exchange Offer Registration Statement.
(o) The Company and Holding may require each Holder of securities to
be sold pursuant to any Shelf Registration Statement to furnish to the
Company and Holding such information regarding the Holder and the
distribution of such securities as the Company and
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Holding may from time to time reasonably require for inclusion in such
Registration Statement.
(p) The Company and Holding shall, if requested, promptly incorporate
in a Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters and
Majority Holders reasonably agree should be included therein and shall make
all required filings of such Prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Company and
Holding shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite or
facilitate the registration or the disposition of the 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 hereof (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 hereof from Holders of Securities to the
Company and Holding.
(r) In the case of any Shelf Registration Statement, the Company and
Holding shall (i) make reasonably available for inspection by the Holders
of 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, Holding and their subsidiaries; (ii) cause the
Company's and Holding'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
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writing by the Company and Holding, 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
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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 the
Holders of 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; (iv) obtain opinions of
counsel to the Company and Holding (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 (or, in the case of any person that does not satisfy the
conditions for receipt of a "cold comfort" letter specified in Statement on
Auditing Standards No. 72, an "agreed-upon procedures" letter) and updates
thereof from the independent certified public accountants of the Company
and Holding (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company and Holding or of any business
acquired by the Company and Holding 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 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 4(k) and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company
and Holding. The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 4(r) shall be performed (A) on the effective date
of such Registration Statement and each post-effective amendment thereto
and (B) at each closing under any underwriting or similar agreement as and
to the extent required thereunder.
(s) In the case of any Exchange Offer Registration Statement, the
Company and Holding shall, if requested of a Purchaser by an Exchanging
Dealer, (i) obtain opinions of counsel to the Company and Holding (which
counsel and opinions (in form, scope and
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substance) shall be reasonably satisfactory to such Purchaser and its
counsel), addressed to such Purchaser, covering such matters as are
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Purchaser or its
counsel and (ii) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company and Holding (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Company or Holding or of any business acquired by the
Company and Holding for which financial statements and financial data are,
or are required to be, included in the Registration Statement), addressed
to such Purchaser, 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 Purchaser or its 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
Purchaser or its counsel. The foregoing actions, if requested as set forth
above, shall be performed (A) at the close of the Registered Exchange Offer
and (B) on the effective date of any post-effective amendment to the
Exchange Offer Registration Statement.
5. Additional Exchange Offer. In the event that for any reason the
--------------------------
shares of Company Preferred Stock or Company Exchange Debentures received by
Holders in exchange for Holding Preferred Stock or Company Preferred Stock
following the filing of the Exchange Offer Registration Statement or Shelf
Registration Statement are not freely tradeable, the Company will (i) prepare
and, not later than 30 days following such exchange, file a registration
statement with the Commission with respect to a registered offer to exchange
such Company Preferred Stock or Company Exchange Debentures, as the case may be,
for New Company Preferred Stock or New Company Exchange Debentures and (ii) use
its best efforts to cause such registration statement to become effective under
the Act as soon as practicable, but in any event within 90 days after the date
of such filing. Upon the effectiveness of such registration statement, the
Company shall promptly commence such exchange offer on the terms set forth in
Section 2. If, (i) because of any change in law or applicable interpretations
thereof by the Commission's staff, the Company is not permitted to effect such
registered exchange offer as contemplated by this Section 5, (ii) for any other
reason such exchange offer registration statement is not declared effective
within 120 days after such exchange or such registered
17
exchange offer is not consummated within 150 days after such exchange, (iii) any
Purchaser so requests with respect to Company Preferred Stock or Company
Exchange Debentures not eligible to be exchanged for New Company Preferred Stock
or New Company Exchanged Debentures in such Registered Exchange Offer or, in the
case of any Purchaser that participates in such registered exchange offer, such
Purchaser does not receive freely tradable New Securities, (iv) any Holder
(other than a Purchaser) is not eligible to participate in such registered
exchange offer or (v) in the case of any such Holder that participates in such
registered exchange offer, such Holder does not receive freely tradable New
Securities in exchange for tendered securities, other than by reason of such
Holder being an Affiliate of the Company within the meaning of the Act, the
Company shall as promptly as practicable (but in no event more than 30 days
after so required or requested pursuant to this Section 5) 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 Company Preferred Stock or Company Exchange Debentures, in
accordance with the provisions of Section 3. The Company shall use its best
efforts to keep such Shelf Registration Statement continuously effective in
order to permit the Prospectus forming part thereof to be usable by Holders for
a period of two years after the later of (x) the date of the original issuance
of the Company Preferred Stock or Company Exchange Debentures, as applicable (or
until one year after such date if such Shelf Registration Statement is filed at
the request of a Purchaser and (y) the last date on which any Affiliate of the
Company was a beneficial owner of such Securities or such shorter period that
will terminate when all Securities covered thereby have been sold thereunder.
The Company shall be deemed not to have used its best efforts to keep such Shelf
Registration Statement effective during such period if it voluntarily takes any
action that would result in Holders of Securities covered thereby not being able
to offer and sell such Securities during that period, unless (i) such action is
required by applicable law or (ii) 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 4(k) hereof, if applicable.
6. Registration Expenses. The Company and Holding shall bear all
----------------------
expenses incurred in connection with the performance of their obligations under
Sections 2, 3, 4 and 5 hereof and, (a) in the event of any Shelf Registration
Statement, will reimburse the Holders for the reasonable
18
fees and disbursements of one firm or counsel (in addition to one local counsel
in each relevant jurisdiction) designated by the Majority Holders to act as
counsel for the Holders in connection therewith ("Holders' Counsel"), and (b) in
the case of any Exchange Offer Registration Statement, will reimburse the
Purchasers for the reasonable fees and disbursements of counsel acting in
connection therewith; provided, that the Company and Holding shall not be
--------
obligated to reimburse the Purchasers in excess of $10,000 in the aggregate
pursuant to this clause (b).
7. Indemnification and Contribution. (a) In connection with any
---------------------------------
Registration Statement, the Company and Holding agree, jointly and severally, to
indemnify and hold harmless each Holder of securities covered thereby (including
each Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each other person, if any, who controls any
such Holder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any and all losses, claims, damages or liabilities, 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, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in any preliminary
Prospectus or 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 and Holding 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 and Holding by or
on behalf of any such Holder specifically for inclusion therein; provided
--------
further, however, that the indemnity agreement contained in this Section 7(a)
------- -------
shall not inure to the benefit of any indemnified party to the extent that it is
determined by a final, non-appealable judgment that (i) any Registration
Statement or Prospectus, or any
19
amendment thereof or supplement thereto, contained an untrue statement of a
material fact or omitted to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the
sale to the person asserting any such losses, claims, damages or liabilities was
an initial resale of New Securities by any Exchanging Dealer, (iii) any such
loss, claim, damage or liability of such indemnified party results 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 New Securities to such person, a copy of any
amended or supplemented Registration Statement or Prospectus and the Company or
Holding had previously furnished copies thereof to such Exchanging Dealer and
(iv) the amended or supplemented Registration Statement or Prospectus as amended
or supplemented corrected such untrue statement or omission.
This indemnity agreement will be in addition to any liability which
the Company and Holding may otherwise have.
The Company and Holding also agree to indemnify or contribute to
Losses (as defined below) of, as provided in Section 7(d), any underwriters of
Securities registered under a Shelf Registration Statement, their officers,
directors, employees and agents and each person who controls such underwriters
on substantially the same basis as that of the indemnification of the 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 4(q) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer) severally and not
jointly agrees to indemnify and hold harmless the Company and Holding, each of
their directors and officers and each other person, if any, who controls the
Company or Holding within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
and Holding to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company and Holding 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.
20
(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 7, 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 participate therein and, to
the extent it may wish, to assume the defense thereof with 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
-------- -------
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 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
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; provided that the indemnifying
party shall not be responsible for the expenses of more than one separate
counsel (in addition to one local counsel in each relevant jurisdiction) in any
one action. 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,
21
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. An indemnified
party will not, without the prior written consent of the indemnifying party,
which consent will 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.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason (other than as provided in paragraph (a)),
then each applicable indemnifying party, in lieu of indemnifying such
indemnified 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 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 which 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 and Holding shall be deemed to be equal to
22
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 or dividend which the Company and
Holding were not required to pay as a result of registering the securities
covered by the Registration Statement which resulted in such Losses. Benefits
received by the 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 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 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 parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation 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 7,
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 or Holding 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 or Holding shall have the same rights
to contribution as the Company or Holding, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 7 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, the
Company, Holding or any underwriter or any of the officers, directors or
controlling persons referred to in this Section 7, and will survive the sale by
a Holder of securities covered by a Registration Statement.
23
8. Miscellaneous.
--------------
(a) No Inconsistent Agreements. The Company and Holding have not, as
---------------------------
of the date hereof, entered into, nor shall they, on or after the date hereof,
enter into, any agreement with respect to their securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) 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 and Holding have obtained
the written consent of the Holders of at least a majority of the then
outstanding aggregate principal amount or Liquidation preference, as the case
may be, of Securities (or, after the consummation of any 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
Purchaser hereunder, the Company and Holding shall obtain the written consent of
each such 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 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 being sold rather than
registered under such Registration Statement.
(c) 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:
(1) if to a Holder, at the most current address given by such
Holder to the Company and Holding in accordance with the provisions of
this Section 8(c), which address initially is, with respect to each
Holder, the address of such Holder maintained by the registrar under
the Indenture, Exchange Indenture, the Certificate of Designation of
the Holding Preferred Stock and the Certification of Designation for
the Company Preferred Stock, with a copy in like manner to Salomon
Brothers Inc by fax (000-000-0000) and
24
confirmed by mail to it at Seven World Trade Center, New York, New
York 10048;
(2) if to you, initially at the address set forth in the Purchase
Agreement; and
(3) if to the Company or Holding, initially at their addresses
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Purchasers, the Company or Holding notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) 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 the need for an express assignment or any consent by
the Company, Holding or subsequent Holders of Securities and/or New Securities.
The Company and Holding hereby agree to extend the benefits of this Agreement to
any Holder of Securities and/or New Securities and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
---------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
--------------
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
THE CONFLICT OF LAW PROVISIONS THEREOF).
(h) 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 the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
25
(i) Securities Held by the Company, Holding, 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, Holding or their 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.
26
Please confirm that the foregoing correctly sets forth the agreement
between the Company, Holding and you.
Very truly yours,
XXXXXX RESPIRATORY CARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
__________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief
Executive Officer
By: /s/ Xxx X. Xxxxx
__________________________
Name: Xxx X. Xxxxx
Title: Chief Financial
Officer
RIVER HOLDING CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
__________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written
SALOMON BROTHERS INC
BT XXXX. BROWN INCORPORATED
By: SALOMON BROTHERS INC
By: /s/ X. Xxxxx Xxxxx
_______________________
Name: X. Xxxxx Xxxxx
Title: Director
