EXHIBIT 4.4(a)
Registration Rights Agreement
Dated As of May 11, 1999
among
Healthtrust, Inc. -- The Hospital Company
and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Deutsche Bank Securities
Fleet Securities, Inc.
Scotia Capital Markets
and
SunTrust Equitable Securities Corporation
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into this 11th day of May, 1999, among Healthtrust, Inc.--The Hospital
Company, a Delaware corporation ("Healthtrust" or the "Company"), and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Deutsche Bank
Securities, Fleet Securities, Inc., Scotia Capital Markets and SunTrust
Equitable Securities Corporation (collectively, the "Initial Purchasers"), for
whom Xxxxxxx Xxxxx is acting as representative (in such capacity, the
"Representative").
This Agreement is made pursuant to the Purchase Agreement, dated May
4, 1999, among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of $150 million principal amount of the Company's 10
3/4% Senior Subordinated Notes due 2009 (the "Securities"), which are to be
unconditionally guaranteed by certain subsidiaries of LifePoint Hospitals
Holdings, Inc, a Delaware corporation ("Holdings"), following the assumption of
the Securities by Holdings and the asset contributions described below. In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
Upon Healthtrust transferring the Business (as defined herein) to
LifePoint Hospitals, Inc., a Delaware corporation ("LifePoint"), and the
assumption by LifePoint of the indebtedness evidenced by the Securities,
Healthtrust will cause LifePoint to assume all the rights, obligations and
liabilities of Healthtrust under this agreement pursuant to the LifePoint
Assumption Agreement, the form of which is attached as Exhibit A hereto. Upon
LifePoint transferring the Business to Holdings and the assumption by Holdings
of the indebtedness evidenced by the Securities, LifePoint will cause Holdings
to assume all rights, obligations and liabilities of LifePoint under this
Agreement pursuant to the Holdings Assumption Agreement, the form of which is
attached as Exhibit B hereto. Following the assumption by Holdings of the
indebtedness evidenced by the Securities, Holdings will contribute certain
assets to its subsidiary, LifePoint Holdings 2, LLC and LifePoint Holdings 2,
LLC will then contribute certain assets to its subsidiary, LifePoint Holdings 3,
Inc. Following these contributions and immediately prior to the completion of
the Distribution, Holdings will cause the Guarantors (as defined in the
Guarantor Assumption Agreement) to execute and deliver the Guarantor Assumption
Agreement, the form of which is attached as Exhibit C hereto, pursuant to which
each Guarantor will agree to observe and perform as a "Guarantor" all rights,
obligations and liabilities of such Guarantor under this Agreement. The parties
hereto acknowledge and agree that once (i) the Business has been validly
transferred to LifePoint and the LifePoint Assumption Agreement has been
executed and delivered by the parties thereto, Healthtrust shall automatically
be fully, unconditionally and irrevocably released from all rights, obligations
and liabilities hereunder and (ii) the Business has been validly transferred to
Holdings and the Holdings Assumption Agreement has been executed and delivered
by the parties thereto,
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LifePoint shall automatically be fully, unconditionally and irrevocably released
from all rights, obligations and liabilities hereunder. For purposes of this
Agreement, the "Company" shall refer to any of Healthtrust or LifePoint or
Holdings, depending on which such company has then assumed all rights,
obligations and liabilities under this Agreement as discussed in this paragraph.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
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As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
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to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Business" shall mean the net assets, business and operations
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comprising the America Group Division of Columbia/HCA.
"Closing Date" shall mean the Closing Time as defined in the Purchase
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Agreement.
"Columbia/HCA" shall mean Columbia/HCA Healthcare Corporation, a
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Delaware corporation.
"Depositary" shall mean The Depository Trust Company, or any other
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depositary appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City of
New York.
"Exchange Offer" shall mean the exchange offer by the Company of
--------------
Exchange Securities for Registrable Securities pursuant to Section 2.1
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
---------------------------
Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
-------------------------------------
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits thereto
and all documents incorporated by reference therein.
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"Exchange Period" shall have the meaning set forth in Section 2.1
---------------
hereof.
"Exchange Securities" shall mean the 10 3/4% Senior Subordinated Notes
-------------------
due 2009, issued by the Company under the Indenture containing terms
identical to the Securities in all material respects (except for references
to certain interest rate provisions, restrictions on transfers and
restrictive legends), to be offered to Holders of Securities in exchange
for Registrable Securities pursuant to the Exchange Offer. The Exchange
Securities shall be entitled to the guarantees provided for in the
Indenture (the "Guarantees").
----------
"Guarantors" shall have the meaning assigned thereto in the Indenture.
----------
"Holder" shall mean an Initial Purchaser, for so long as it owns any
------
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture and each Participating Broker-Dealer that holds
Exchange Securities for so long as such Participating Broker-Dealer is
required to deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities, dated
---------
as of May 11, 1999 between the Company and Citibank, N.A., as trustee, as
the same may be amended, supplemented, waived or otherwise modified from
time to time in accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the meaning set
----------------- ------------------
forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
----------------
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided that whenever the consent or approval of
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Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company and other obligors on
the Securities or any Affiliate (as defined in the Indenture) of the
Company shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage amount.
"Participating Broker-Dealer" shall mean any of Xxxxxxx Lynch, Pierce,
---------------------------
Xxxxxx & Xxxxx Incorporated, Deutsche Bank Securities, Fleet Securities,
Inc., Scotia Capital Markets and SunTrust Equitable Securities Corporation
and any other broker-dealer which makes a market in the Securities and
exchanges Registrable Securities in the Exchange Offer for Exchange
Securities.
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"Person" shall mean an individual, partnership (general or limited),
------
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2.1
----------------
hereof.
"Private Exchange Securities" shall have the meaning set forth in
---------------------------
Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a Registration
----------
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
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"Registrable Securities" shall mean the Securities and, if issued, the
----------------------
Private Exchange Securities; provided, however, that Securities and, if
issued, the Private Exchange Securities, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such
Securities shall have been declared effective under the 1933 Act and such
Securities shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities have been sold to the public pursuant to
Rule 144 (or any similar provision then in force, but not Rule 144A) under
the 1933 Act, (iii) such Securities shall have ceased to be outstanding or
(iv) the Exchange Offer is consummated (except in the case of Securities
purchased from the Company and continued to be held by the Initial
Purchasers).
"Registration Expenses" shall mean any and all expenses incident to
---------------------
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees,
including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained
by any holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all reasonable fees and expenses incurred in
connection with compliance with state securities or blue sky laws and
compliance with the rules of the NASD (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection with
blue sky qualification of any of the Exchange Securities or Registrable
Securities and any filings with the NASD), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus, any amendments
or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to
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the performance of and compliance with this Agreement, (iv) all fees and
expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (v) all
rating agency fees, (vi) the reasonable fees and disbursements of counsel
for the Company and of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (vii) the
reasonable fees and expenses of the Trustee, and any escrow agent or
custodian, (viii) the reasonable fees and expenses of the Initial
Purchasers in connection with the Exchange Offer, including the reasonable
fees and expenses of counsel to the Initial Purchasers in connection
therewith, (ix) the reasonable fees and disbursements of special counsel
representing the Holders of Registrable Securities retained in connection
with a Shelf Registration (which counsel shall be reasonably satisfactory
to the Company and (x) the reasonable fees and disbursements of the
underwriters customarily required to be paid by issuers or sellers of
securities and the reasonable fees and expenses of any special experts
retained by the Company in connection with any Registration Statement, but
excluding underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Securities by a
Holder.
"Registration Statement" shall mean any registration statement of the
----------------------
Company which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all amendments
and supplements to any 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.
"SEC" shall mean the Securities and Exchange Commission or any
---
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
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Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
----------------------------
statement of the Company pursuant to the provisions of Section 2.2 of this
Agreement which covers all of the Registrable Securities or all of the
Private Exchange Securities on an appropriate form under Rule 415 under the
1933 Act, or any similar rule that may be adopted by the SEC, and 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.
"Trustee" shall mean the trustee with respect to the Securities under
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the Indenture.
2. Registration Under the 1933 Act.
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2.1 Exchange Offer. The Company and the Guarantors shall, for
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the benefit of the Holders, at the Company's cost, (A) prepare and, as soon as
practicable but not later than 90 days following the Closing Date, use
reasonable best efforts to file with the SEC an Exchange Offer Registration
Statement on an appropriate form under the 1933 Act with respect to a proposed
Exchange Offer and the issuance and delivery to the Holders, in exchange for the
Registrable Securities (other than Private Exchange Securities), of a like
principal amount of Exchange Securities, (B) use its reasonable best efforts to
cause the Exchange Offer Registration Statement to be declared effective under
the 1933 Act within 180 days of the Closing Date, (C) use its reasonable best
efforts to keep the Exchange Offer Registration Statement effective until the
closing of the Exchange Offer and (D) use its reasonable best efforts to cause
the Exchange Offer to be consummated not later than 220 days following the
Closing Date. The Exchange Securities will be issued under the Indenture. Upon
the effectiveness of the Exchange Offer Registration Statement, the Company
shall promptly commence the Exchange Offer, it being the objective of such
Exchange Offer to enable each Holder eligible and electing to exchange
Registrable Securities for Exchange Securities (assuming that such Holder (a) is
not an affiliate of the Company within the meaning of Rule 405 under the 1933
Act, (b) is not a broker-dealer tendering Registrable Securities acquired
directly from the Company for its own account, (c) acquired the Exchange
Securities in the ordinary course of such Holder's business and (d) has no
arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to transfer such
Exchange Securities from and after their receipt without any limitations or
restrictions under the 1933 Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(a) mail as promptly as practicable 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;
(b) keep the Exchange Offer open for acceptance for a period of not less
than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Securities at any time
prior to 5:00 p.m. (Eastern Time), on the last business day of the Exchange
Period, by sending to the institution specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for
exchange, and a statement that such Holder is withdrawing such Holder's
election to have such Securities exchanged;
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(e) notify each Holder that any Registrable Security not tendered will
remain outstanding and continue to accrue interest, but will not retain any
rights under this Agreement (except in the case of the Initial Purchasers
and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws relating to
the Exchange Offer.
If the Company effects the Exchange Offer, the Company will be
entitled to close the Exchange Offer 30 days after the commencement thereof
provided that (i) applicable law does not require that the Exchange Offer remain
open longer and that (ii) the Company has accepted all the Registrable
Securities theretofore validly tender in accordance with the terms of the
Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having the status of an
unsold allotment in the initial distribution, the Company upon the request of
any Initial Purchaser shall, simultaneously with the delivery of the Exchange
Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in
exchange (the "Private Exchange") for the Securities held by such Initial
Purchaser, a like principal amount of debt securities of the Company on a senior
basis, that are identical (except that such securities shall bear appropriate
transfer restrictions) to the Exchange Securities (the "Private Exchange
Securities"). The Private Exchange Securities shall be entitled to the
Guarantees.
The Exchange Securities and the Private Exchange Securities shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture and which, in either case, has been qualified under
the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such
qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture but that the
Private Exchange Securities shall be subject to such transfer restrictions. The
Indenture or such indenture shall provide that the Exchange Securities, the
Private Exchange Securities and the Securities shall vote and consent together
on all matters as one class and that none of the Exchange Securities, the
Private Exchange Securities or the Securities will have the right to vote or
consent as a separate class on any matter. The Private Exchange Securities
shall be of the same series as and the Company shall use all commercially
reasonable efforts to have the Private Exchange Securities bear the same CUSIP
number as the Exchange Securities. The Company shall not have any liability
under this Agreement solely as a result of such Private Exchange Securities not
bearing the same CUSIP number as the Exchange Securities.
As soon as practicable after the close of the Exchange Offer and/or
the Private Exchange, as the case may be, the Company shall use its reasonable
best efforts to:
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(i) accept for exchange all Registrable Securities duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities properly tendered pursuant to the
Private Exchange;
(iii) deliver to the Trustee for cancellation all Registrable Securities so
accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver Exchange
Securities or Private Exchange Securities, as the case may be, to each
Holder of Registrable Securities so accepted for exchange in a principal
amount equal to the principal amount of the Registrable Securities of such
Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security will
accrue from the last date on which interest was paid on the Registrable
Securities surrendered in exchange therefor or, if no interest has been paid on
the Registrable Securities, from the date of original issuance of the
Registrable Securities. The Exchange Offer and the Private Exchange shall not
be subject to any conditions, other than (i) that the Exchange Offer or the
Private Exchange, or the making of any exchange by a Holder, does not violate
applicable law or any applicable interpretation of the staff of the SEC, (ii)
the due tendering of Registrable Securities in accordance with the Exchange
Offer and the Private Exchange, (iii) that each Holder of Registrable Securities
to be exchanged in the Exchange Offer shall have represented that all Exchange
Securities to be received by it shall be acquired in the ordinary course of its
business and that at the time of the consummation of the Exchange Offer it shall
have no arrangement or understanding with any person to participate in the
distribution (within the meaning of the 0000 Xxx) of the Exchange Securities and
shall have made such other representations as may be reasonably necessary under
applicable SEC rules, regulations or interpretations to render the use of Form
S-4 or other appropriate form under the 1933 Act available and (iv) that no
action or proceeding shall have been instituted or threatened in any court or by
or before any governmental agency with respect to the Exchange Offer or the
Private Exchange which, in the Company's judgment, would reasonably be expected
to impair the ability of the Company to proceed with the Exchange Offer or the
Private Exchange. The Company shall inform the Initial Purchasers of the names
and addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders and otherwise facilitate
the tender of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. If, because of any changes in law, SEC rules or
------------------
regulations or applicable interpretations thereof by the staff of the SEC, the
Company is not permitted to effect the Exchange Offer as contemplated by Section
2.1 hereof, (ii) if for any other reason the Exchange Offer Registration
Statement is not declared effective within 180 days
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following the original issue of the Registrable Securities or the Exchange Offer
is not consummated within 220 days after the original issue of the Registrable
Securities, (iii) any Holder of Securities notifies the Company prior to the
20th day following completion of the Exchange Offer that (a) due to a change in
law or policy it is not eligible to participate in the Exchange Offer, (b) due
to a change in law or policy it may not resell the Exchange Securities acquired
by it in the Exchange Offer to the public without delivering a Prospectus and
the Prospectus contained in the Exchange Registration Statement is not
appropriate or available for such resales by such Holder or (c) it is a broker-
dealer and owns Securities acquired directly from the Company or an affiliate of
the Company, or (iv) the Majority Holders may not resell the Exchange Securities
acquired by them in the Exchange Offer to the public without restriction under
the 1933 Act and without restriction under applicable blue sky or state
securities laws, then in case of each of clauses (i) through (iv) the Company
and the Guarantors shall, at its cost:
(ii)
(a) As promptly as practicable (but no later than the later of 90 days
after the Closing Date or 90 days after the time such obligation to file
arises, or in the case of clause (ii), 30 days), use reasonable best
efforts to file with the SEC, and thereafter shall use its reasonable best
efforts to cause to be declared effective as promptly as practicable but no
later than 90 days after such Shelf Registration Statement is filed, a
Shelf Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance with
the methods of distribution elected by the Majority Holders participating
in the Shelf Registration and set forth in such Shelf Registration
Statement and Rule 415 under the 1933 Act; provided, however, that no
Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement unless
such Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) Use its reasonable 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 from the
date the Shelf Registration Statement is declared effective by the SEC, or
for such shorter period that will terminate when all Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement or cease to be outstanding or otherwise to be
Registrable Securities (the "Effectiveness Period"); provided, however,
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that the Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit dealers to
comply with the applicable prospectus delivery requirements of Rule 174
under the 1933 Act and as otherwise provided herein. Notwithstanding this
clause (b), the foregoing shall not apply to actions taken (or contemplated
to be taken) by the Company in good faith and for valid business reasons,
involving a material undisclosed event (a "Suspension Event"), including,
without limitation, the acquisition or divestiture of assets or the
offering or sale of securities, so long as the Company promptly thereafter
complies with requirements of Section 3(k) hereof, if applicable. Any such
period during which the Company is excused from
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keeping the Shelf Registration Statement effective and usable for offers
and sale of the Registrable Securities is referred to as a "Suspension
Period;" provided, that such Suspension Period shall not exceed 45 days in
any 12-month period (whereafter Additional Interest shall accrue and be
payable); and provided further that the number of days of any actual
Suspension Period shall be added on to the end of the two-year period
described above. A Suspension Period shall commence on and include the date
that the Company gives notice that the Shelf Registration Statement is no
longer effective or the Prospectus included therein in no longer usable for
offers and sales of Registrable Securities and shall end on the earlier of
(1) the date when each seller of Registrable Securities covered by the
Shelf Registration Statement either receives the copies of the supplemented
or amended Prospectus contemplated by Section 3(k) hereof or is advised in
writing by the Company that use of the Prospectus may be resumed or (2) the
expiration of 45 days in any 12-month period during which one or more
Suspension Periods has been in effect.
(c) Notwithstanding any other provisions hereof, use its reasonable best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act and
the rules and regulations thereunder, (ii) any Shelf 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 Shelf
Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements, in light of the circumstances under which they were made,
not misleading.
The Company shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Company
further agrees, if necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(b) below, and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
2.3 Expenses. The Company shall pay all Registration Expenses
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in connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
2.4
(a) Effectiveness. The Company will be deemed not to have used
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its reasonable best efforts to cause the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, to become, or to
remain, effective during the requisite period if the Company voluntarily takes
any action (other than an action permitted by
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Section 2.2) that would, or omits to take any action which omission would,
result in any such Registration Statement not being declared effective or in the
Holders of Registrable Securities covered thereby not being able to exchange or
offer and sell such Registrable Securities during that period as and to the
extent contemplated hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to Section 2.1 hereof or
a Shelf Registration Statement pursuant to Section 2.2 hereof will not be deemed
to have become effective unless it has been declared effective by the SEC;
provided, however, that if, after it has been declared effective, the offering
of Registrable Securities pursuant to an Exchange Offer Registration Statement
or a Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Registration Statement will be deemed not to have become
effective during the period of such interference, until the offering of
Registrable Securities pursuant to such Registration Statement may legally
resume.
2.5 Interest. The Indenture executed in connection with the
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Securities will provide that in the event that either (a) any Registration
Statement required to be filed pursuant to this Agreement is not filed on or
before the date specified herein for such filing, (b) any of such Registration
Statements have not become effective or been declared effective by the SEC on or
prior to the date specified for such effectiveness, subject to certain limited
exceptions, (c) the Exchange Offer is not consummated within 30 business days
after the effective date of the Exchange Offer Registration Statement or (d) the
Shelf Registration Statement or the Exchange Offer Registration Shipment is
declared effective but thereafter ceases to be effective (other than by reason
of a Suspension Event) or usable in connection with the Exchange Offer or
resales or Registrable Securities, as the case may be, during the periods
specified in this Agreement (each such event referred to in clauses (a) through
(d) above, a "Registration Default"), the interest rate borne by the Securities
shall be increased ("Additional Interest") over and above the interest set forth
in the title of the Securities, with respect to the first 90-day period (or
portion thereof) while a Registration Default or Defaults is continuing
immediately following the occurrence of such Registration Default or Defaults by
0.25%, such interest rate increasing by an additional 0.25% at the beginning of
each subsequent 90-day period (or portion thereof ) while a Registration Default
or Defaults, is continuing until all Registration Defaults have been cured, up
to a maximum rate of Additional Interest of 1.0%. Following the cure of all
Registration Defaults, the accrual of Additional Interest on the Securities will
cease and the interest rate will revert to the original rate. Additional
Interest pursuant to this Section 2.5 constitutes liquidated damages with
respect to Registration Defaults and shall be the exclusive monetary remedy
available to the Holders of the Securities in respect of any Registration
Default. Additional Interest will not accrue and be payable as set forth above
during any Suspension Period.
A Registration Default referred to above shall be deemed not to have
occurred and be continuing in relation to a Shelf Registration Statement or the
related Prospectus if (i) such Registration Default has occurred solely as a
result of (x) the filling of a post-effective
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amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related Prospectus or (y) other material events, with respect
to the Company that would need to be described in such Shelf Registration
Statement or the related Prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related Prospectus to describe such events.
The Company shall notify the Trustee within three business days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due as described above shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture and
the Securities, on each interest payment date, as more fully set forth in the
Indenture and the Securities. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the
principal amount of the Securities, as the case may be, multiplied by a
fraction, the numerator of which is the number of days such Additional Interest
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which is 360.
Each obligation to pay Additional Interest shall be deemed to accrue from and
including the day following the applicable Event Date and shall cease on, but
excluding the day such Registration Default is cured.
12
3. Registration Procedures.
-----------------------
In connection with the obligations of the Company and the
Guarantors with respect to Registration Statements pursuant to Sections 2.1 and
2.2 hereof, the Company and the Guarantors shall:
(a) prepare and file with the SEC a Registration Statement, within the relevant
time period specified in Section 2, on the appropriate form under the 1933 Act,
which form (i) shall be selected by the Company, (ii) shall, in the case of a
Shelf Registration, be available for the sale of the Registrable Securities by
the selling Holders thereof, (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or incorporate
by reference all financial statements required by the SEC to be filed therewith
or incorporated by reference therein, and (iv) shall comply in all respects with
the requirements of Regulation S-T under the 1933 Act, and use its reasonable
best efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective amendments
to each Registration Statement as may be necessary under applicable law to keep
such Registration Statement effective for the applicable period; and cause each
Prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision then in
force) under the 1933 Act and comply with the provisions of the 1933 Act, the
1934 Act and the rules and regulations thereunder applicable to them with
respect to the disposition of all securities covered by each Registration
Statement during the applicable period in accordance with the intended method or
methods of distribution by the selling Holders thereof (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of Registrable
Securities, at least five business days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Securities is being filed
and advising such Holders that the distribution of Registrable Securities will
be made in accordance with the method selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) subject to Section 2.2(b)
and the penultimate paragraph of this Section 3, hereby consent to the use of
the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with the offering and sale of
the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) use its reasonable best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as any
13
Holder of Registrable Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities shall
reasonably request by the time the applicable Registration Statement is declared
effective by the SEC, and do any and all other acts and things which may be
reasonably necessary or advisable to enable each such Holder and underwriter to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that neither the Company nor
the Guarantors shall not be required to (i) qualify as a foreign corporation or
as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), or (ii) take any action which
would subject it to general service of process or taxation in any such
jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities under a Shelf
Registration or any Participating Broker-Dealer who has notified the Company
that it is utilizing the Exchange Offer Registration Statement as provided in
paragraph (f) below and, if requested by such Holder or Participating Broker-
Dealer, confirm such advice in writing promptly (i) when a Registration
Statement has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the SEC or any
state securities authority for post-effective amendments and supplements to a
Registration Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the SEC or
any state securities authority of any stop order suspending the effectiveness of
a Registration Statement or the initiation of any proceedings for that purpose,
(iv) in the case of a Shelf Registration, if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and correct in all
material respects, (v) of the happening of any event or the discovery of any
facts during the period a Shelf Registration Statement is effective which makes
any statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any changes in
such Registration Statement or Prospectus in order to make the statements
therein not misleading, (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Securities or the Exchange Securities, as the case may be, for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose
and (vii) of any determination by the Company that a post-effective amendment to
such Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer Registration Statement (i) include in
the Exchange Offer Registration Statement a section entitled "Plan of
Distribution" which section shall be reasonably acceptable to Xxxxxxx Xxxxx on
behalf of the Participating Broker-Dealers, and which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that holds
Registrable Securities acquired for its own account as a result of market-making
activities or other trading activities and that will be the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Securities to be
received by such broker-dealer in the Exchange
14
Offer, whether such positions or policies have been publicly disseminated by the
staff of the SEC or such positions or policies, in the reasonable judgment of
Xxxxxxx Xxxxx on behalf of the Participating Broker-Dealers and its counsel,
represent the prevailing views of the staff of the SEC, including a statement
that any such broker-dealer who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer may be deemed a statutory underwriter
and must deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company the notice referred
to in Section 3(e), without charge, as many copies of each Prospectus included
in the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto, by any Person subject to the prospectus
delivery requirements of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto, and (iv) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following
provision:
(B)
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale
of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act; and
(B) in the case of any Exchange Offer Registration Statement, the Company
agrees to deliver to the Initial Purchasers on behalf of the Participating
Broker-Dealers upon the effectiveness of the Exchange Offer Registration
Statement officers' certificates substantially in the form customarily delivered
in a public offering of debt securities;
(g) (i) in the case of an Exchange Offer, furnish counsel for the Initial
Purchasers and (ii) in the case of a Shelf Registration, furnish counsel for the
Holders of Registrable Securities copies of any comment letters received from
the SEC or any other request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
15
(i) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, and each underwriter, if any, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment thereto,
including financial statements and schedules (without documents incorporated
therein by reference and all exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations (consistent with the provisions of the Indenture) and registered
in such names as the selling Holders or the underwriters, if any, may reasonably
request in writing at least three business days prior to the closing of any sale
of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence of any event or
the discovery of any facts, each as contemplated by Sections 3(e)(v) and
3(e)(vi) hereof, as promptly as practicable after the occurrence of such an
event, use its reasonable best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Securities
or Participating Broker-Dealers, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company agrees to
notify each Holder to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder agrees to suspend use of
the Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission. At such time as such public disclosure is
otherwise made or the Company determines that such disclosure is not necessary,
in each case to correct any misstatement of a material fact or to include any
omitted material fact, the Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such number of copies of the Prospectus
as amended or supplemented, as such Holder may reasonably request;
(l) in the case of a Shelf Registration, a reasonable time prior to the filing
of any Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or any document which is to
be incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Initial Purchasers on behalf of such Holders; and make representatives of
the Company as shall be reasonably requested by the Holders of Registrable
Securities, or the Initial Purchasers on behalf of such Holders, available for
discussion of such document;
(m) obtain a CUSIP number for all Exchange Securities, Private Exchange
Securities or Registrable Securities, as the case may be, not later than the
effective date of a
16
Registration Statement, and provide the Trustee with printed certificates for
the Exchange Securities, Private Exchange Securities or the Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(n) cause the Indenture to be qualified under the TIA in connection with the
registration of the Exchange Securities or Registrable Securities, as the case
may be, (ii) cooperate with the Trustee and the Holders to effect such changes
to the Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute, and use its reasonable
best efforts to cause the Trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into such customary agreements
(including underwriting agreements) and take all other customary and appropriate
actions, if any, as reasonably requested by the Majority Holders in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration:
(i) make such representations and warranties to the Holders of such
Registrable Securities and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the holders of a
majority in principal amount of the Registrable Securities being sold)
addressed to each selling Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in sales of securities or
underwritten offerings similar to such transactions and such other matters
as may be reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the Company's
independent certified public accountants (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
are, or are required to be, included in the Registration Statement)
addressed to the underwriters, if any, and use reasonable efforts to have
such letter addressed to the selling Holders of Registrable Securities (to
the extent consistent with Statement on Auditing Standards No. 72 of the
American Institute of Certified Public Accounts), such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters to underwriters in connection with similar
underwritten offerings;
17
(iv) if requested by the Majority Holders, enter into a securities sales
agreement with the Holders and an agent of the Holders providing for, among
other things, the appointment of such agent for the selling Holders for the
purpose of soliciting purchases of Registrable Securities, which agreement
shall be in form, substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same to set
forth indemnification provisions and procedures substantially equivalent to
the indemnification provisions and procedures set forth in Section 4 hereof
with respect to the underwriters and all other parties to be indemnified
pursuant to said Section or, at the request of any underwriters, in the
form customarily provided to such underwriters in similar types of
transactions; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings to the
Holders of a majority in principal amount of the Registrable Securities
being sold and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and, if appropriate, each post-effective amendment thereto) and (ii) each
closing under any underwriting or similar agreement as and to the extent
required thereunder;
(p) in the case of a Shelf Registration or if a Prospectus is required to be
delivered by any Participating Broker-Dealer in the case of an Exchange Offer,
make reasonably available for inspection during normal business hours by
representatives of the Holders of the Registrable Securities, any underwriters
participating in any disposition pursuant to a Shelf Registration Statement, any
Participating Broker-Dealer and any counsel or accountant retained by any of the
foregoing, all relevant financial and other records, pertinent corporate
documents and properties of the Company reasonably requested by any such persons
on reasonable prior notice, and cause the respective officers, directors,
employees, and any other agents of the Company to supply all relevant
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Registration Statement, and
make such representatives of the Company available for discussion of such
documents as shall be reasonably requested by the Initial Purchasers;
(q) in the case of an Exchange Offer Registration Statement, a reasonable time
prior to the filing of any Exchange Offer Registration Statement, any Prospectus
forming a part thereof, any amendment to an Exchange Offer Registration
Statement or amendment or supplement to such Prospectus, provide copies of such
document to the Initial Purchasers and their counsel and make such changes in
any such document prior to the filing thereof as the Initial Purchasers or their
counsel may reasonably request and is agreed to by the Company (such agreement
not to be unreasonably withheld), except as otherwise required by applicable
law, not file any such document in a form to which the Initial Purchasers on
behalf of the Holders of
18
Registrable Securities and counsel to the Holders of Registrable Securities
shall not have previously been advised and furnished a copy of or to which the
Initial Purchasers on behalf of the Holders of Registrable Securities or counsel
to the Holders of Registrable Securities shall reasonably object within a
reasonable time period, and make the representatives of the Company available
for discussion of such documents as shall be reasonably requested by the Initial
Purchasers; and
(ii) in the case of a Shelf Registration, a reasonable time prior
to filing any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the Holders of
Registrable Securities, to the Initial Purchasers, to counsel for the Holders
and to the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any, make such changes in any such document prior to
the filing thereof as the Initial Purchasers, the counsel to the Holders or the
underwriter or underwriters reasonably request is agreed to by the Company (such
agreement not to be unreasonably withheld) and not file any such document in a
form to which the Majority Holders, the Initial Purchasers on behalf of the
Holders of Registrable Securities, counsel for the Holders of Registrable
Securities or any underwriter shall not have previously been advised and
furnished a copy of or to which the Majority Holders, the Initial Purchasers of
behalf of the Holders of Registrable Securities, counsel to the Holders of
Registrable Securities or any underwriter shall reasonably object within a
reasonable time period, and make the representatives of the Company available
for discussion of such document as shall be reasonably requested by the Holders
of Registrable Securities, the Initial Purchasers on behalf of such Holders,
counsel for the Holders of Registrable Securities or any underwriter;
(r) in the case of a Shelf Registration, use its reasonable best efforts to
cause all Registrable Securities to be listed on any securities exchange on
which similar debt securities issued by the Company are then listed if requested
by the Majority Holders, or if requested by the underwriter or underwriters of
an underwritten offering of Registrable Securities, if any;
(s) in the case of a Shelf Registration, use its reasonable best efforts to
cause the Registrable Securities to be rated by the appropriate rating agencies,
if so requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(t) otherwise use its reasonable best efforts comply with all applicable rules
and regulations of the SEC and make available to its security holders (or
otherwise provide in accordance with Section 11(a) of the 1933 Act), as soon as
reasonably practicable (but not until the end of the first full fiscal quarter
following effectiveness), an earnings statement covering at least 12 months
which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder; and
19
(u) cooperate and assist in any filings required to be made with the NASD and,
in the case of a Shelf Registration, in the performance of any due diligence
investigation by any underwriter and its counsel (including any "qualified
independent underwriter" that is required to be retained in accordance with the
rules and regulations of the NASD).
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company such information
regarding the Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company may from time to time reasonably request
in writing.
In the event that the Company fails to effect the Exchange Offer or file
any Shelf Registration Statement and maintain the effectiveness of any Shelf
Registration Statement as provided herein, the Company shall not file any
Registration Statement with respect to any securities (within the meaning of
Section 2(1) of the 0000 Xxx) of the Company other than Registrable Securities.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
or the discovery of any facts, each of the kind described in Section 3(e)(v)
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
3(k) hereof, and, if so directed by the Company, such Holder will deliver to the
Company (at its expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable 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
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
20
4. Indemnification; Contribution.
-----------------------------
(a) Each of the Company and each Guarantor, jointly and severally, agrees to
indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter (any
such Person being an "Underwriter") and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
(or any amendment or supplement thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
4(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including the
reasonable fees and disbursements of counsel chosen by any indemnified
party), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense of the Initial Purchasers, any Holder, any
Participating Broker-Dealer or Underwriter, as the case may be, to the extent
arising out of (i) any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written information
furnished to the Company by such Initial Purchasers, any Holder, Participating
Broker-Dealer or Underwriter expressly for use in a Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) or (ii) with respect to any
21
untrue statement or omission or alleged untrue statement or omission made in any
preliminary prospectus relating to a Shelf Registration Statement, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
person or entity from whom the person asserting any such losses, claims, damages
or liabilities purchased the Securities concerned, to the extent that a
Prospectus relating to such Securities was required to be delivered by such
person or entity under the 1933 Act in connection with such purchase and any
such loss, claim damage or liability of such person or entity results from the
fact that there was not sent or given to such purchaser, at, or prior to the
written confirmation of the sale of such Securities to such purchaser, a copy of
the revised final prospectus containing a correction of such alleged
misstatements or omissions.
(b) Each Holder severally, but not jointly, agrees to indemnify and hold
harmless the Company, the Guarantors, the Initial Purchasers, each Underwriter
and the other selling Holders, and each of their respective directors and
officers, and each Person, if any, who controls the Company, the Initial
Purchasers, any Underwriter or any other selling Holder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 4(a) hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto) or any Prospectus included
therein (or any amendment or supplement thereto) in reliance upon and in
conformity with written information with respect to such Holder furnished to the
Company by such Holder expressly for use in the Shelf Registration Statement (or
any amendment thereto) or such Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder from
the sale of Registrable Securities pursuant to such Shelf Registration
Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but failure so
to notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether or
not the indemnified parties are
22
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 4(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, in such proportion as is appropriate to reflect the relative
fault of the Company and the Guarantors on the one hand and the Holders and the
Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantors on the one hand and
the Holders and the Initial Purchasers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Guarantors, the Holders
or the Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantors, the Holders and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this Section
4 were determined by pro rata allocation (even if the Initial Purchasers 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 above in
this Section 4. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
4 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
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Notwithstanding the provisions of this Section 4, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were offered exceeds the amount
of any damages which such Initial Purchaser 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 0000 Xxx) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, and each director of the Company, and each Person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Initial Purchasers' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the principal amount of
Securities set forth opposite their respective names in Schedule A to the
Purchase Agreement and not joint.
5. Miscellaneous.
-------------
5.1 Rule 144 and Rule 144A. For so long as the Company is
----------------------
subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the
Company covenants that it will file the reports required to be filed by it under
the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly available such
information as is necessary to permit sales pursuant to Rule 144 under the 1933
Act, (b) deliver such information to a prospective purchaser as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act and it will take such
further action as any Holder of Registrable Securities may reasonably request,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the 1933 Act within
the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
5.2 No Inconsistent Agreements. The Company has not entered
--------------------------
into and the Company will not after the date of this Agreement enter into any
agreement which conflicts with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not and will
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not for the term of this Agreement in any way conflict with the rights granted
to the holders of the Company's other issued and outstanding securities under
any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure.
5.4 Notices. All notices and other communications provided for
-------
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchasers; and (b) if to the Company or
any Guarantor, initially at the Company's address set forth in the Purchase
Agreement, and thereafter at such other address of which notice is given in
accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is 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
under the Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the
---------------------
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
--------
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
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5.6 Third Party Beneficiaries. The Initial Purchasers shall be
-------------------------
third party beneficiaries to the agreements made hereunder between the Company
and the Guarantors, on the one hand, and the Holders, on the other hand, and
shall have the right to enforce such agreements directly to the extent they deem
such enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights hereunder.
5.7 Restriction on Resales. Until the expiration of two years
----------------------
after the original issuance of the Securities and the Guarantees, the Company
and the Guarantor will not, and will use reasonable best efforts to cause their
"affiliates" (as such term is defined in Rule 144(a)(1) under the 0000 Xxx) not
to, resell any Securities and Guarantees which are "restricted securities" (as
such term is defined under Rule 144(a)(3) under the 0000 Xxx) that have been
reacquired by any of them and shall immediately upon any purchase of any such
Securities and Guarantees submit such Securities and Guarantees to the Trustee
for cancellation.
5.8 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.
5.9 Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
5.11 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
1.1 HEALTHTRUST, INC. -- THE
HOSPITAL COMPANY
By: /s/ R. Xxxxxx Xxxxxxx
------------------------------
Name: R. Xxxxxx Xxxxxxx
Title: Vice President
Confirmed and accepted as
of the date first above
written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
DEUTSCHE BANK SECURITIES
FLEET SECURITIES, INC.
SCOTIA CAPITAL MARKETS
SUNTRUST EQUITABLE SECURITIES CORPORATION
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
------------------------------------------------------
Name:
Title:
27
