EXHIBIT 4.3
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
NATIONAL NEPHROLOGY ASSOCIATES, INC.
THE GUARANTORS LISTED ON APPENDIX I HERETO
AND
BANC OF AMERICA SECURITIES LLC
X.X. XXXXXX SECURITIES INC.
RBC DOMINION SECURITIES CORPORATION
XXXXXX XXXXXXX CORP.
DATED AS OF OCTOBER 22, 2003
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of October 22, 2003, by and among National Nephrology
Associates, Inc., a Delaware corporation (the "Company"), the Guarantors listed
on Appendix I hereto (the "Guarantors"), and Banc of America Securities LLC,
X.X. Xxxxxx Securities Inc., RBC Dominion Securities Corporation and Xxxxxx
Xxxxxxx Corp. (each, an "Initial Purchaser" and, collectively, the "Initial
Purchasers"), each of whom has agreed to purchase the Company's 9% Senior
Subordinated Notes due 2011 (the "Initial Notes") pursuant to the Purchase
Agreement (as defined below). The obligations of the Company under the Initial
Notes will be fully and unconditionally guaranteed on a senior subordinated
basis by the Guarantors (the "Guarantees"). The Initial Notes and the Guarantees
attached thereto are collectively referred to herein as the "Initial
Securities".
This Agreement is made pursuant to the Purchase Agreement, dated as of
October 16, 2003 (the "Purchase Agreement"), by and among the Company, the
Guarantors and the Initial Purchasers (i) for the benefit of each Initial
Purchaser and (ii) for the benefit of the holders from time to time of the
Securities (including each Initial Purchaser). In order to induce the Initial
Purchasers to purchase the Initial Securities, the Company has agreed to provide
the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the obligations of the Initial Purchasers
set forth in Section 5(j) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i)
the filing and effectiveness under the Securities Act of the Exchange
Offer Registration Statement relating to the Exchange Securities to be
issued in the Exchange Offer, (ii) the keeping of the Exchange Offer
open for a period not less than the minimum period required pursuant to
Section 3(b) hereof, and (iii) the delivery by the Company to the
Registrar under the Indenture of Exchange Securities in the same
aggregate principal amount as the aggregate principal amount of Initial
Securities that were tendered by Holders thereof pursuant to the
Exchange Offer.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the
Securities Act of the Exchange Securities pursuant to a Registration
Statement pursuant to which the Company offers the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange
all such outstanding Transfer Restricted Securities held by such
Holders for Exchange Securities in an aggregate principal amount equal
to the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Exchange Securities: The 9% Senior Subordinated Notes due
2011, of the same series under the Indenture as the Initial Notes, and
the guarantees thereof by the Guarantors, to be issued to Holders in
exchange for Transfer Restricted Securities pursuant to this Agreement.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Initial Securities to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act, and to certain non-U.S. persons pursuant to Regulation
S under the Securities Act.
Guarantees: As defined in the preamble hereto.
Guarantors: As defined in the preamble hereto.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of October 22, 2003, among
the Company, the Guarantors and Xxxxx Fargo Bank Minnesota, N.A., as
trustee (the "Trustee"), pursuant to which the Securities are to be
issued, as such Indenture is amended or supplemented from time to time
in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Initial Notes: The 9% Senior Subordinated Notes due 2011, of
the same series under the Indenture as the Exchange Notes, for so long
as such securities constitute Transfer Restricted Securities.
Initial Placement: The issuance and sale by the Company of the
Initial Securities to the Initial Purchasers pursuant to the Purchase
Agreement.
Initial Securities: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the
Securities.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company relating to (a) an offering of Exchange Securities pursuant to
an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in each
case, including the Prospectus included therein, all amendments
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and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Securities: The Initial Securities and the Exchange
Securities.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Trust Indenture Act: The Trust Indenture Act of 1939 (15
U.S.C. Section 77aaa 77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Security, until the
earliest to occur of (a) the date on which such Security is exchanged
in the Exchange Offer and entitled to be resold to the public by the
Holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (b) the date on which such Security
has been effectively registered under the Securities Act and disposed
of in accordance with a Shelf Registration Statement and (c) the date
on which such Security is distributed to the public pursuant to Rule
144 under the Securities Act or by a Broker-Dealer pursuant to the
"Plan of Distribution" contemplated by the Exchange Offer Registration
Statement (including delivery of the Prospectus contained therein).
Notwithstanding the foregoing, in no event will the Exchange Securities
constitute Transfer Restricted Securities.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company and the Guarantors shall (i) cause to be
filed with the Commission as soon as practicable after the Closing Date, but in
no event later than 180 calendar days after the Closing Date, a Registration
Statement under the Securities Act relating to the Exchange Securities and the
Exchange Offer, (ii) use their reasonable best efforts to cause such
Registration Statement to become effective at the earliest possible time, but in
no event later than 270 calendar days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective amendments to such
Registration Statement as may be necessary in order to cause such Registration
Statement to become effective, (B) if applicable, a post-effective amendment to
such Registration Statement pursuant to Rule 430A under the Securities Act in
order to cause the Exchange Offer Registration Statement to be effective for a
period not less than the minimum period required pursuant to Section 3(b) hereof
and (C) cause all necessary filings in connection with the registration and
qualification of the Exchange Securities to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit Consummation of the Exchange
Offer, and (iv) upon the effectiveness of such Registration Statement, commence
the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Securities to be offered in exchange
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for the Transfer Restricted Securities and to permit resales of Securities held
by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their reasonable best
efforts to cause the Exchange Offer Registration Statement to be effective
continuously and shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state securities
laws to Consummate the Exchange Offer; provided, however, that in no event shall
such period be less than 30 days and not more than 45 days (or longer if
required by applicable law) after the date notice of the Exchange Offer is
mailed to the Holders. The Company shall cause the Exchange Offer to comply with
all applicable federal and state securities laws. No securities other than the
Securities shall be included in the Exchange Offer Registration Statement. The
Company shall use its reasonable best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
business days after the date on which the Exchange Offer Registration Statement
is declared effective under the Securities Act.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Securities that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Initial Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Securities
received by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement. Such "Plan of
Distribution" section shall also contain all other information with respect to
such resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Securities held by any
such Broker-Dealer except to the extent required by the Commission as a result
of a change in policy after the date of this Agreement.
The Company and the Guarantors shall use their reasonable best efforts
to keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c) below to
the extent necessary to ensure that it is available for resales of Securities
acquired by Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period
ending on the earlier of (i) 180 days from the date on which the Exchange Offer
Registration Statement is declared effective and (ii) the date on which a
Broker-Dealer is no longer required to deliver a prospectus in connection with
market-making or other trading activities.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
180-day (or shorter as provided in the foregoing sentence) period in order to
facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors are not
required to file an Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with), (ii) for any reason the Exchange Offer is not Consummated
within the time period prescribed by Section 3(b) hereof, (iii) with respect to
any Holder of Transfer Restricted Securities such Holder notifies the Company
prior to the 20th day following consummation of the Exchange Offer that (A) such
Holder is prohibited by applicable law or Commission policy from participating
in the Exchange Offer, or (B)
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such Holder may not resell the Exchange Securities acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) such Holder is
a Broker-Dealer and holds Initial Securities acquired directly from the Company
or one of its affiliates, or (iv) an Initial Purchaser, who is unable to
exchange Securities in connection with the Exchange Offer, requests, then, upon
such Holder's or Initial Purchaser's request, the Company and the Guarantors
shall
(x) cause to be filed a shelf registration statement pursuant
to Rule 415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf
Registration Statement") on or prior to 45 days after the earliest of
(1) the date on which the Company determines that it is not required to
file the Exchange Offer Registration Statement or the Exchange Offer
Registration Statement cannot be filed as a result of clause (i) above,
(2) if the Exchange Offer is not Consummated in the case of clause (ii)
above, the date on which the Exchange Offer should have been
consummated pursuant to Section 3(b) hereof, and (3) the date on which
the Company receives notice specified in clause (iii) above (such date
being the "Shelf Filing Deadline"), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities the
Holders of which shall have provided the information required pursuant
to Section 4(b) hereof; and
(y) use their reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
before the 90th day after the Shelf Filing Deadline.
The Company and the Guarantors shall use their reasonable best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Securities by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of at least two years
following the effective date of such Shelf Registration Statement (or shorter
period that will terminate when all the Securities covered by such Shelf
Registration Statement have been sold pursuant to such Shelf Registration
Statement). To the extent the Company is required to include any Securities in a
Shelf Registration Statement, the Company may include such Securities on any
other shelf registration statement otherwise being filed by the Company with
respect to other of its securities, so long as the Company and the Guarantors
comply with all of the procedures described herein with respect to the Shelf
Registration Statement.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose for more than 30
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days (each such event referred to in clauses (i) through (iv), a "Registration
Default"), the Company hereby agrees to pay liquidated damages ("Liquidated
Damages") to each Holder of Transfer Restricted Securities with respect to the
first 30-day period following the filing deadline referred to in clause (i)
above or the first 90-day period following the periods referred to in clauses
(ii), (iii) or (iv) above in an amount equal to $0.05 per week per $1,000
principal amount of Securities held by such Holder. The amount of Liquidated
Damages will increase by an additional $0.05 per week per $1,000 principal
amount of Securities at the beginning of each subsequent 30-day period in the
case of clause (i) above or 90-day period in the case of clauses (ii), (iii) or
(iv) above, up to a maximum amount of Liquidated Damages of $0.30 per week per
$1,000 principal amount of Securities. Upon (x) the filing of the Exchange Offer
Registration Statement, the effectiveness of the Exchange Offer Registration
Statement, the consummation of the Exchange Offer, (y) the effectiveness of a
Shelf Registration Statement, or (z) any Registration Statement, in the case of
clause (iv) above, once again becoming usable, as the case may be, Liquidated
Damages will cease to accrue from the date of the event described in clauses
(x), (y) or (z), as the case may be, provided, however, that, if after the date
such Liquidated Damages cease to accrue, a different Registration Default
occurs, Liquidated Damages may again commence accruing pursuant to the foregoing
provisions.
All references herein to "interest" include the Liquidated Damages
payable pursuant to this Section 5, and all accrued Liquidated Damages shall be
paid to the Holders entitled thereto, in the manner provided for the payment of
interest in the Indenture, on each Interest Payment Date, as more fully set
forth in the Indenture and the Securities. All obligations of the Company and
the Guarantors set forth in the preceding paragraph that are outstanding with
respect to any Transfer Restricted Securities shall survive until such time as
all such obligations with respect to such Securities shall have been satisfied
in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall comply with all of the
provisions of Section 6(c) below, shall use their reasonable best efforts to
effect such exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof,
and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there is
a question as to whether the Exchange Offer is permitted by applicable law, the
Company and the Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company and the Guarantors
to Consummate an Exchange Offer for the Initial Securities. The Company and the
Guarantors each hereby agrees to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. In connection with
the foregoing, the Company and the Guarantors hereby agree to take all such
other commercially reasonable actions required in connection with the issuance
of such decision, including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the Commission staff an
analysis prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a favorable resolution by the Commission
staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation thereof, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an affiliate of the
Company, (B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a distribution
of the Exchange Securities to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Securities in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall otherwise
cooperate in the Company's preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such
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Holder using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under Commission
policy as in effect on the date of this Agreement rely on the position of the
Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991)
and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted
in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (which may include any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale transaction should
be covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of Exchange Securities obtained by such Holder
in exchange for Initial Securities acquired by such Holder directly from the
Company.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall comply with all the
provisions of Section 6(c) below and shall use their reasonable best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto upon there being an obligation to
file a Shelf Registration Statement pursuant to Section 4(a), the Company will
as expeditiously as possible prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions thereof.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Securities by
Broker-Dealers), the Company and the Guarantors shall:
(i) use their reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial statements
(including, if required by the Securities Act or any regulation thereunder,
financial statements of the Guarantors for the period specified in Section 3 or
4 of this Agreement, as applicable); upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period required
by this Agreement, the Company shall file promptly an appropriate amendment to
such Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B), use its
reasonable best efforts to cause such amendment to be declared effective and
such Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable period
set forth in Section 3 or 4 hereof, as applicable, or such shorter period as
will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Securities Act in a timely
manner; and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in writing,
(A) when the Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to any Registration Statement or any
post-effective
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amendment thereto, when the same has become effective, (B) of any request by the
Commission for post-effective amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Securities
Act or of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any statement
of a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in light of the
circumstances under which they were made not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or
Blue Sky laws, the Company and the Guarantors shall use their reasonable best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) furnish without charge to each of the Initial Purchasers,
each selling Holder named in any Registration Statement, and each of the
underwriter(s), if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Holders and underwriter(s) in connection with such sale, if any,
for a period of at least five business days, and the Company will not file any
such Registration Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including all such documents
incorporated by reference) to which an Initial Purchaser of Transfer Restricted
Securities covered by such Registration Statement or the underwriter(s), if any,
shall reasonably object in writing within five business days after the receipt
thereof (such objection to be deemed timely made upon confirmation of telecopy
transmission within such period). The objection of an Initial Purchaser or
underwriter, if any, shall be deemed to be reasonable if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, provide
copies of such document to the Initial Purchasers, each selling Holder named in
any Registration Statement, and to the underwriter(s), if any, make the
Company's management officers and other representatives available and management
officers and other representatives of the Guarantors available for discussion of
such document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such selling Holders
or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
Initial Purchasers, any managing underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant retained
by such Initial Purchasers or any of the underwriter(s), all pertinent financial
and other records, corporate documents and properties of the Company and each of
the Guarantors and cause the Company's and the Guarantors' officers, directors
and employees to supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness and make available the Company's
management, officers and other representatives for meetings with investors
typical for road shows of underwritten securities to the extent requested by any
Holder, Initial Purchaser or underwriter;
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective
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amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, information with respect to
the principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other terms of
the offering of the Transfer Restricted Securities to be sold in such offering;
and make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the matters to
be incorporated in such Prospectus supplement or post-effective amendment;
(viii) use reasonable best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be rated with the
appropriate rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of Securities covered thereby or the underwriter(s),
if any;
(ix) if requested by any selling Holders or the underwriters, if
any, furnish to each such selling Holder and each of such underwriter(s), if
any, without charge, at least one copy of the Registration Statement, as first
filed with the Commission, and of each amendment thereto, including financial
statements and schedules, all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference);
(x) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
reasonably may reasonably request; the Company and the Guarantors hereby consent
to the use of the Prospectus and any amendment or supplement thereto by each of
the selling Holders and each of the underwriter(s), if any, in connection with
the offering and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(xi) enter into, and cause the Guarantors to enter into, such
agreements (including an underwriting agreement), and make, and cause the
Guarantors to make, such representations and warranties, and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any Registration
Statement contemplated by this Agreement, all to such extent as may be
reasonably requested by any Initial Purchaser or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company and the Guarantors
shall:
(A) furnish to each Initial Purchaser, each selling Holder and
each underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of the
Consummation of the Exchange Offer and, if applicable, the
effectiveness of the Shelf Registration Statement:
(1) in the event of an underwritten public offering
of Securities pursuant to the Shelf Registration Statement, a
certificate, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration
Statement, as the case may be, signed by (y) the President or
any Vice President and (z) a principal financial or accounting
officer of each of the Company and the Guarantors, confirming,
as of the date thereof, the matters set forth in paragraphs
(i), (ii) and (iii) of Section 5 (f) of the Purchase Agreement
and such other matters as such parties may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Company and the Guarantors, covering the matters set forth in
paragraph (c) of Section 5 of the Purchase Agreement and such
other matters as such parties may reasonably request, and in
the event of an underwritten public offering of Securities
pursuant to the Shelf Registration Statement, including a
statement to the effect that such counsel has participated
9
in conferences with officers and other representatives of the
Company and the Guarantors and representatives of the
independent public accountants for the Company and the
Guarantors in connection with the preparation of such
Registration Statement and the related Prospectus and have
considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness
of such statements; and that such counsel advises that, on the
basis of the foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by officers and
other representatives of the Company and without independent
check or verification), no facts came to such counsel's
attention that caused such counsel to believe that the
applicable Registration Statement, at the time such
Registration Statement or any post-effective amendment thereto
became effective, and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
that the Prospectus contained in such Registration Statement
as of its date and, in the case of the opinion dated the date
of Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading. Without limiting the
foregoing, such counsel may state further that such counsel
assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules and other financial
data included in any Registration Statement contemplated by
this Agreement or the related Prospectus; provided that such
statement be subject to modification and to such exceptions
and/or qualifications to the same extent as was any such
statement included in the opinion of counsel delivered upon
consummation of the offer and sale of the Initial Securities
to the Initial Purchasers; and
(3) a customary comfort letter, dated as of the date
of Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the case
may be, from the Company's independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters by underwriters in connection with
underwritten public offerings, and covering the matters set
forth in the comfort letters delivered pursuant to Section
5(a) of the Purchase Agreement;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with clause
(A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
or the Guarantors pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Company and
the Guarantors contemplated in clause (A)(1) above cease to be true and correct,
the Company or the Guarantors shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder promptly and, if requested by
such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with, and cause the Guarantors to cooperate with, the
selling Holders, the underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the Transfer Restricted
Securities under the securities or Blue Sky laws of such jurisdictions as the
selling Holders or underwriter(s) may request and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that neither the
10
Company nor the Guarantors shall be required to register or qualify as a foreign
corporation where it is not then so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not then so subject;
(xiii) shall issue, upon the request of any Holder of Initial
Securities covered by the Shelf Registration Statement, Exchange Securities,
having an aggregate principal amount equal to the aggregate principal amount of
Initial Securities surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Exchange Securities to be registered
in the name of such Holder or in the name of the purchaser(s) of such
Securities, as the case may be; in return, the Initial Securities held by such
Holder shall be surrendered to the Company for cancellation;
(xiv) cooperate with, and cause the Guarantors to cooperate with,
the selling Holders and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and registered in
such names as the Holders or the underwriter(s), if any, may request at least
two business days prior to any sale of Transfer Restricted Securities made by
such underwriter(s);
(xv) use their reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s), if any,
to consummate the disposition of such Transfer Restricted Securities;
(xvi) if any fact or event contemplated by clause (c)(iii)(D) above
shall exist or have occurred, prepare a supplement or post-effective amendment
to the Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration Statement and
provide the Trustee under the Indenture with printed certificates for the
Transfer Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xviii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is required
to be retained in accordance with the rules and regulations of the NASD, and use
its reasonable best efforts to cause such Registration Statement to become
effective and approved by such governmental agencies or authorities as may be
necessary to enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted Securities;
(xix) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its security holders, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited) for
the twelve-month period (A) commencing at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement;
(xx) cause the Indenture to be qualified under the Trust Indenture
Act not later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith,
11
cooperate, and cause the Guarantors to cooperate with, the Trustee and the
Holders of Securities to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and to execute, and cause the Guarantors to execute, and use
their reasonable best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which similar
securities issued by the Company are then listed if requested by the Holders of
a majority in aggregate principal amount of Initial Securities or the managing
underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 and Section
15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof,
or until it is advised in writing (the "Advice") by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so
directed, each Holder hereby agrees that it will either (i) destroy any
Prospectuses, other than permanent file copies, then in such Holder's possession
which have been replaced by the Company with more recently dated prospectuses or
(ii) each Holder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Transfer Restricted Securities that was current at
the time of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including
the date when each selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xvi) hereof or shall have received the Advice; however, no such
extension shall be taken into account in determining whether Liquidated Damages
are due pursuant to Section 5 hereof or the amount of such Liquidated Damages,
it being agreed that the Company's option to suspend use of a Registration
Statement pursuant to this paragraph shall be treated as a Registration Default
for purposes of Section 5.
SECTION 7. REGISTRATION EXPENSES
All expenses incident to the Company's or the Guarantors' performance
of or compliance with this Agreement will be borne jointly and severally by the
Company or the Guarantors, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration and filing
fees and expenses (including filings made by any Initial Purchaser or Holder
with the NASD (and, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the Exchange Securities to be issued in the
Exchange Offer and printing of Prospectuses), messenger and delivery services
and telephone; (iv) all fees and disbursements of counsel for the Company and
the Guarantors; (v) all application and filing fees in connection with any
listing of the Exchange Securities on a national securities exchange or
automated quotation system pursuant to the requirements thereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company and the Guarantors (including the expenses of any special audit and
comfort letters required by or incident to such performance).
12
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
SECTION 8. INDEMNIFICATION
(a) The Company agrees and the Guarantors, jointly and severally, agree
to indemnify and hold harmless (i) each Holder and (ii) each person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) any Holder (any of the persons referred to in this clause
(ii) being hereinafter referred to as a "controlling person") and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Holder or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified Holder"), to the
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (or any amendment or supplement thereto), or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities, judgments, actions
or expenses are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Company
by any of the Holders expressly for use therein. This indemnity agreement shall
be in addition to any liability which the Company may otherwise have.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Company or the Guarantors, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly notify the Company
and the Guarantors in writing (provided, that the failure to give such notice
shall not relieve the Company or the Guarantors of their respective obligations
pursuant to this Agreement, except to the extent they are prejudiced as a
proximate result of such failure). Such Indemnified Holder shall have the right
to employ its own counsel in any such action and the fees and expenses of such
counsel shall be paid, as incurred, by the Company and the Guarantors
(regardless of whether it is ultimately determined that an Indemnified Holder is
not entitled to indemnification hereunder); provided that if it is ultimately
determined that such Holder was not entitled to indemnification hereunder, such
fees and expenses shall be promptly reimbursed to the Company and the
Guarantors. The Company and the Guarantors shall not, in connection with any one
such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at
any time for such Indemnified Holders, which firm shall be designated by the
Holders. The Company shall be liable for any settlement of any such action or
proceeding effected with the Company's and the Guarantors' prior written
consent, which consent shall not be withheld unreasonably, and the Company and
the Guarantors agree to indemnify and hold harmless any Indemnified Holder from
and against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Company and
the Guarantors. The Company shall not, without the prior written consent of each
Indemnified Holder, settle or compromise or consent to the entry of judgment in
or otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not any Indemnified Holder is a party thereto),
unless such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Holder from all liability arising out
of such action, claim, litigation or proceeding.
13
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company and the Guarantors and
their respective directors, officers of the Company who sign a Registration
Statement, and any person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) the Company and the
Guarantors, and the respective officers, directors, partners, employees,
representatives and agents of each such person, to the same extent as the
foregoing indemnity from the Company and the Guarantors to each of the
Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement, Prospectus or amendment or
supplement thereto. In case any action or proceeding shall be brought against
the Company or the Guarantors or their directors or officers or any such
controlling person in respect of which indemnity may be sought against a Holder
of Transfer Restricted Securities, such Holder shall have the rights and duties
given the Company and the Guarantors, and the Company and the Guarantors, or
their directors or officers or such controlling person shall have the rights and
duties given to each Holder by the preceding paragraph. In no event shall the
liability of any selling Holder hereunder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the Securities
giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities, judgments, actions or expenses
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, on the one hand,
and the Holders, on the other hand, from the Initial Placement (which in the
case of the Company and the Guarantors shall be deemed to be equal to the total
gross proceeds from the Initial Placement as set forth on the cover page of the
Offering Memorandum), the amount of Liquidated Damages which did not become
payable as a result of the filing of the Registration Statement resulting in
such losses, claims, damages, liabilities, judgments actions or expenses, and
such Registration Statement, or if such allocation is not permitted by
applicable law, the relative fault of the Company and the Guarantors on the one
hand, and of the Indemnified Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantors on the one hand and of the
Indemnified Holder on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and or any of the Guarantors on the one
hand, or by the Indemnified Holder on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Company, the Guarantor and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(c) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Xxxxxxx 0, xxxx of the Holders (and its related Indemnified
Holders) shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the total discount received by such Holder with respect
to the Initial Securities exceeds the amount of any damages which such Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall
14
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant to
this Section 8(c) are several in proportion to the respective principal amount
of Initial Securities held by each of the Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company and the Guarantors each hereby agrees with each Holder, for
so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors each hereby agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company will not, and will cause
the Guarantors not to, on or after the date of this Agreement enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Neither the Company nor the Guarantors have entered into any
agreement granting any registration rights with respect to the Securities to any
Person. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Company's or the Guarantors' securities under any agreement in effect on the
date hereof.
(c) Adjustments Affecting the Securities. The Company will not take any
action, or permit any change to occur, with respect to the Securities that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities (excluding Transfer Restricted Securities held by
the Company or its Affiliates).
15
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer may be given by the Holders
of a majority of the outstanding principal amount of Transfer Restricted
Securities being tendered or registered; 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 with respect to which such amendment, qualification, supplement,
waiver, consent or departure is to be effective.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the Indenture;
and
(ii) if to the Company:
National Nephrology Associates, Inc.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxx
With a copy to:
X.X. Childs Associates, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxx
and to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile 000-000-0000
Attention: Xxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express
16
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the Purchase
Agreement, the Indenture, the Securities and any related documents, is intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NATIONAL NEPHROLOGY ASSOCIATES, INC., a Delaware
corporation
By:
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
NNA OF OKLAHOMA, INC., a Nevada corporation
NNA OF GEORGIA, INC., a Delaware corporation
NNA OF ALABAMA, INC., an Alabama corporation
NNA MANAGEMENT COMPANY OF KENTUCKY, INC., a
Kentucky corporation
NATIONAL NEPHROLOGY ASSOCIATES MANAGEMENT
COMPANY OF TEXAS, INC., a Texas corporation
NNA OF NEVADA, INC., a Nevada corporation
NATIONAL NEPHROLOGY ASSOCIATES CREDIT CORPORATION,
a Tennessee corporation
NNA OF TOLEDO, INC., an Ohio corporation
NNA OF RHODE ISLAND, INC., a Rhode Island
corporation
NNA TRANSPORTATION SERVICES CORPORATION, a
Tennessee corporation
NNA PROPERTIES OF TENNESSEE, INC., a Tennessee
corporation
NNA PROPERTIES OF KENTUCKY, INC., a Kentucky
corporation
NNA PROPERTIES OF NEW JERSEY, INC., a New Jersey
corporation
NNA MANAGEMENT COMPANY OF LOUISIANA, INC., a
Louisiana corporation
RENEX CORP., a Florida corporation
RENEX MANAGEMENT SERVICES, INC., a Florida
corporation
DIALYSIS SERVICES OF ATLANTA, INC., a Georgia
corporation
RENEX DIALYSIS CLINIC OF PENN HILLS, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF SHALER, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF DOYLESTOWN, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF AMESBURY, INC., a
Massachusetts corporation
RENEX DIALYSIS CLINIC OF NORTH ANDOVER, INC., a
Massachusetts corporation
00
XXXXX XXXXXXXX XXXXXX XX XXXXX XXXXXXX, INC., a
Georgia corporation
RENEX DIALYSIS CLINIC OF CREVE COUER, INC., a
Missouri corporation
RENEX DIALYSIS CLINIC OF ST. LOUIS, INC., a
Missouri corporation
RENEX DIALYSIS CLINIC OF BRIDGETON, INC., a
Missouri corporation
RENEX DIALYSIS CLINIC OF UNION, INC., a Missouri
corporation
RENEX DIALYSIS HOMECARE OF GREATER ST. LOUIS, INC.,
a Missouri corporation
RENEX DIALYSIS CLINIC OF MAPLEWOOD, INC., a
Missouri corporation
RENEX DIALYSIS CLINIC OF UNIVERSITY CITY, INC., a
Missouri corporation
RENEX DIALYSIS FACILITIES, INC., a Mississippi
corporation
RENEX DIALYSIS CLINIC OF BLOOMFIELD, INC., a New
Jersey corporation
RENEX DIALYSIS CLINIC OF ORANGE, INC., a New Jersey
corporation
RENEX DIALYSIS CLINIC OF PHILADELPHIA, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF PITTSBURGH, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF WOODBURY, INC., a New
Jersey corporation
RENEX DIALYSIS CLINIC OF TAMPA, INC., a Florida
corporation
DIALYSIS ASSOCIATES, LLC, a Tennessee limited
liability company
By: National Nephrology Associates, Inc., a
Delaware corporation, as sole member
DIALYSIS ASSOCIATES MEDICAL SUPPLY, LLC, a
Tennessee limited liability company
By: National Nephrology Associates, Inc., a
Delaware corporation, as sole member
NNA-SAINT BARNABAS, L.L.C., a New Jersey limited
liability company
By: Renex Dialysis Clinic of Woodbury, Inc., a
Delaware corporation, as sole member
NNA SAINT BARNABAS - NEWARK, L.L.C., a New Jersey
limited liability company
By: NNA - Saint Barnabas, L.L.C., a New Jersey
limited liability company, as sole member
NNA OF OKLAHOMA, L.L.C., an Oklahoma limited
liability company
By: NNA of Oklahoma, Inc., a Nevada corporation,
as sole member
NNA OF LOUISIANA, LLC, a Louisiana limited
liability company
By: NNA Management Company of Louisiana, Inc., as
sole member
DOYLESTOWN ACUTE RENAL SERVICES, L.L.C., a
Pennsylvania limited liability company
19
By: Renex Dialysis Clinic of Doylestown, Inc., a
Pennsylvania corporation, as sole member
NNA OF NEWARK, L.L.C., a New Jersey limited
liability company
By: Renex Dialysis Clinic of Woodbury, Inc., a New
Jersey corporation, as sole member
NATIONAL NEPHROLOGY ASSOCIATES OF TEXAS, L.P., a
Texas limited partnership
By: National Nephrology Associates Management
Company of Texas, Inc., a Texas corporation,
as its general partner
By:
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
20
The foregoing Registration Rights Agreement is hereby
confirmed and accepted as of the date first above written.
BANC OF AMERICA SECURITIES LLC,
X.X. XXXXXX SECURITIES INC.
RBC DOMINION SECURITIES CORPORATION
XXXXXX XXXXXXX CORP.
BY: BANC OF AMERICA SECURITIES LLC
By:
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
21
APPENDIX I
GUARANTORS
NNA of Oklahoma, Inc.
NNA of Georgia, Inc.
NNA of Alabama, Inc.
NNA Management Company of Kentucky, Inc.
National Nephrology Associates Management Company of Texas,
Inc.
NNA of Nevada, Inc.
National Nephrology Associates Credit Corporation
NNA of Toledo, Inc.
NNA of Rhode Island, Inc.
NNA Transportation Services Corporation
NNA Properties of Tennessee, Inc.
NNA Properties of Kentucky, Inc.
NNA Properties of New Jersey, Inc.
NNA Management Company of Louisiana, Inc.
Renex Corp.
Renex Management Services, Inc.
Dialysis Services of Atlanta, Inc.
Renex Dialysis Clinic of Penn Hills, Inc.
Renex Dialysis Clinic of Shaler, Inc.
Renex Dialysis Clinic of Doylestown, Inc.
Renex Dialysis Clinic of Amesbury, Inc.
Renex Dialysis Clinic of North Andover, Inc.
Renex Dialysis Clinic of South Georgia, Inc.
Renex Dialysis Clinic of Creve Coeur, Inc.
Renex Dialysis Clinic of St. Louis, Inc.
Renex Dialysis Clinic of Union, Inc.
Renex Dialysis Clinic of Bridgeton, Inc.
Renex Dialysis Homecare of Greater St. Louis, Inc.
Renex Dialysis Clinic of Maplewood, Inc.
Renex Dialysis Clinic of University City, Inc.
Renex Dialysis Facilities, Inc.
Renex Dialysis Clinic of Bloomfield, Inc.
Renex Dialysis Clinic of Orange, Inc.
Renex Dialysis Clinic of Philadelphia, Inc.
Renex Dialysis Clinic of Pittsburgh, Inc.
Renex Dialysis Clinic of Woodbury, Inc.
Renex Dialysis Clinic of Tampa, Inc.
Dialysis Associates, LLC
Dialysis Associates Medical Supply, LLC
NNA-Saint Barnabas, L.L.C.
NNA-Saint Barnabas-Newark, L.L.C.
22
NNA of Oklahoma, L.L.C.
NNA of Louisiana, LLC
Doylestown Acute Renal Services, L.L.C.
NNA of Newark, L.L.C.
National Nephrology Associates of Texas L.P.
23
