Exhibit 10.1
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
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entered into as of February 20, 1997 among McKesson Corporation, a Delaware
corporation ("McKesson" or the "Company"), McKesson Financing Trust, a statutory
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business trust formed under the laws of the State of Delaware (the "Trust"), and
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Xxxxxx Xxxxxxx & Co. Incorporated (the "Initial Purchaser") pursuant to the
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Placement Agreement dated as of February 13, 1997 (the "Placement Agreement")
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among McKesson, the Trust and the Initial Purchaser. In order to induce the
Initial Purchaser to enter into the Placement Agreement, McKesson and the Trust
have agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Placement
Agreement.
McKesson and the Trust agree with the Initial Purchaser, (i) for its
benefit as Initial Purchaser and (ii) for the benefit of the holders from time
to time of the Registrable Securities (including the Initial Purchaser) (each of
the foregoing a "Holder" and together the "Holders"), as follows:
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Section 1. Definitions.
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Placement Agreement. As used in this
Agreement, the following terms shall have the following meanings:
Affiliate: "Affiliate" has the same meaning as given to that term in
Rule 405 of the Securities Act or any successor rule thereunder.
Applicable Conversion Price: The Applicable Conversion Price as of any
date of determination means the Conversion Price, as it may be adjusted from
time to time, in effect as of such date of determination or, if no Convertible
Debentures are then outstanding, the Conversion Price that would be in effect
were Convertible Debentures then outstanding.
Business Day: Any day other than a Saturday, Sunday or any other day
on which banking institutions in The City of New York or Wilmington, Delaware
are permitted or required by law to close.
Common Stock: The shares of common stock, $.01 par value per share, of
McKesson and any other shares of common stock as may constitute "Common Stock"
for purposes of the Indenture, including the Underlying Common Stock.
Conversion Price: Conversion Price shall have the meaning assigned
such term in Section 14.1 of the Indenture.
Convertible Debentures: The 5% Convertible Junior Subordinated
Debentures due 2027 of McKesson to be purchased by the Trust pursuant to the
Debenture Purchase Agreement dated as of the date hereof between McKesson and
the Trust.
Convertible Preferred Securities: The 5% Trust Convertible Preferred
Securities of the Trust.
Damages Accrual Period: See Section 2(e) hereof.
Damages Payment Date: Each distribution payment date under the
Declaration, in the case of Convertible Preferred Securities, each Interest
Payment Date (as defined in the Indenture), in the case of Convertible
Debentures, and each March 1, June 1, September 1, December 1, in the case of
Underlying Common Stock; and, in the event that any Convertible Preferred
Security or Convertible Debenture (or portion thereof) is called for redemption
or surrendered for conversion, the date of redemption or conversion, as the case
may be, shall be deemed to be a Damages Payment Date with respect to such
Convertible Preferred Security or Convertible Debenture (or portion thereof), as
the case may be, unless accrued and unpaid distributions or interest, as the
case may be, are to be paid to the holder on a record date prior to such date of
conversion (in which case the Damages Payment Date shall be deemed to be the
date on which distributions or interest, as the case may be, are payable to such
record holder).
Declaration: The Amended and Restated Declaration of Trust dated as
of the date hereof of the Trust as amended from time to time.
Deferral Period: See Section 2(d)(ii) hereof.
Effectiveness Period: The period commencing with the date hereof and
ending on the date that all Registrable Securities have ceased to be Registrable
Securities.
Event: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Event Termination Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Guarantee: The guarantee by McKesson of the Convertible Preferred
Securities pursuant to the Preferred Securities Guarantee Agreement dated as of
the date hereof between McKesson and The First National Bank of Chicago, as
preferred guarantee trustee.
Holder: See the second paragraph of this Agreement.
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Indenture: The Indenture date as of February 20, 1997 between
McKesson and The First National Bank of Chicago, as trustee, pursuant to which
the Convertible Debentures are being issued.
Initial Purchaser: Xxxxxx Xxxxxxx & Co. Incorporated.
Initial Shelf Registration: See Section 2(a) hereof.
Liquidated Damages Amount: See Section 2(e) hereof.
Notice Holder: See Section 2(d)(i) hereof.
Placement Agreement: See the first paragraph of this Agreement.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Registrable Securities: The Convertible Preferred Securities, the
Guarantee, the Convertible Debentures and the Underlying Common Stock, whether
or not such securities have been converted or exchanged, and at all times
subsequent to any such conversion or exchange, and any security issued with
respect thereto upon any stock dividend, split or similar event until, in the
case of any such security, (i) it is effectively registered under the Securities
Act and disposed of in accordance with the Registration Statement covering its
offering and sale, (ii) it is saleable by the Holder thereof pursuant to Rule
144(k) or any successor provision or (iii) it is sold to the public pursuant to
Rule 144 and, as a result of the event or circumstance described in any of the
foregoing clauses (i) through (iii), the legends with respect to transfer
restrictions required under the Declaration and the Indenture are removed or
removable in accordance with the terms of the Declaration or the Indenture, as
the case may be.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of McKesson or the
Trust which covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus or any other prospectus included
therein, the information, if any, deemed to be a part of such registration
statement pursuant to Rule 430A promulgated under the Securities Act, amendments
and supplements to such registration statement, including post-effective
amendments, all exhibits, and all material incorporated by reference or deemed
to be incorporated by reference in such registration statement.
Restricted Securities: As this term is defined in Rule 144.
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Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Selling Period: See Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Xxxxx & Wood llp or such other counsel as shall be
specified by the Holders of a majority of the Registrable Securities, the fees
and expenses of which will be paid by McKesson pursuant to Section 5 hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The First National Bank of Chicago (or any successor entity),
the Institutional Trustee under the Declaration or, in the event the Convertible
Debentures are distributed to holders of the Convertible Preferred Securities
upon dissolution of the Trust, the Trustee under the Indenture.
Underlying Common Stock: The Common Stock into which the Convertible
Debentures are convertible.
Section 2. Shelf Registration.
a. Shelf Registration. McKesson and the Trust shall prepare and file
with the SEC on or prior to the 90th day after the latest date of original
issuance of the Convertible Preferred Securities (the 91st day after the latest
date of such original issuance being called the "Filing Date"), a Registration
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Statement for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act (a "Shelf Registration") registering the
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resale from time to time by Holders thereof of all of the Registrable Securities
(the "Initial Shelf Registration"). The Initial Shelf Registration shall be on
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Form S-3 or another appropriate form permitting registration of such Registrable
Securities for resale by such Holders in the manner or manners designated by
them. McKesson and the Trust shall use their reasonable best efforts to cause
the Initial Shelf Registration to become effective under the Securities Act as
promptly as is practicable and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the end of the
Effectiveness Period.
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b. If the Initial Shelf Registration or any Subsequent Shelf
Registration, as defined below, ceases to be effective for any reason at any
time during the Effectiveness Period (other than because all Registrable
Securities shall have ceased to be Registrable Securities), McKesson and the
Trust shall use their reasonable best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event shall, subject
to Section 2(d), within 30 days of such cessation of effectiveness amend the
Shelf Registration in a manner reasonably expected to obtain the withdrawal of
the order suspending the effectiveness thereof, or file an additional Shelf
Registration covering all of the Registrable Securities (a "Subsequent Shelf
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Registration"). If a Subsequent Shelf Registration is filed, McKesson and the
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Trust shall use their reasonable best efforts to cause the Subsequent Shelf
Registration to become effective as promptly as is practicable after such filing
and to keep such Registration Statement continuously effective until the end of
the Effectiveness Period.
x. XxXxxxxx and the Trust shall, subject to Section 2(d), supplement
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used by McKesson and the Trust
for such Shelf Registration, if required by the Securities Act.
d. Each Holder of Registrable Securities agrees that if such Holder
wishes to sell its Registrable Securities pursuant to a Shelf Registration and
related Prospectus, it will do so only in accordance with this Section 2(d).
Each Holder of Registrable Securities agrees to give written notice to McKesson
and the Trust at least ten (10) Business Days prior to any intended distribution
of Registrable Securities under the Shelf Registration, which notice shall
specify the date on which such Holder intends to begin such distribution and any
information with respect to such Holder and the intended distribution of
Registrable Securities by such Holder required to amend or supplement the
Registration Statement with respect to such intended distribution of Registrable
Securities by such Holder. As promptly as is practicable after the date such
notice is provided, and in any event within five (5) Business Days after such
date, McKesson and the Trust shall either:
i. (A) prepare and file with the SEC a post-effective amendment
to the Shelf Registration or a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference or
file any other required document so that such Registration Statement will not
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 so that, as thereafter delivered to purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not 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, in the light
of the circumstances under which they were made, not misleading; provided that
the Trust and McKesson agree to notify the Holders to suspend use of the
Prospectus, and the Holders shall suspend use of the Prospectus, until the Trust
or McKesson has amended or supplemented the Prospectus so that it does not
contain any such misstatement or omission; (B) provide the Holders of the
Registrable Securities who gave such notice copies of any documents filed
pursuant to Section 2(d)(i)(A); and (C) inform each such Holder that McKesson
and the Trust have complied with their obligations in Section 2(d)(i)(A) and
that the Registration Statement and the Prospectus may be used for sales of
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Registrable Securities (or that, if McKesson and the Trust have filed a post-
effective amendment to the Shelf Registration which has not yet been declared
effective, McKesson and the Trust will notify each such Holder to that effect,
will use their reasonable best efforts to secure the effectiveness of such post-
effective amendment and will immediately notify each such Holder pursuant to
Section 2(d)(i)(A) hereof when the amendment has become effective and that the
Registration Statement and the Prospectus may be used for sales of Registrable
Securities); each Holder who has given notice of its intention to distribute
such Holder's Registrable Securities in accordance with Section 2(d) hereof (a
"Notice Holder") will sell all or any or such Registrable Securities pursuant to
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the Shelf Registration and related Prospectus only during the 45-day period
commencing with the date on which McKesson and the Trust give notice, pursuant
to Section 2(d)(i)(A), that the Registration Statement and Prospectus may be
used for such purpose (such 45-day period is referred to as a "Selling Period");
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the Notice Holders will not sell any Restricted Securities pursuant to such
Registration Statement or Prospectus after such Selling Period without giving a
new notice of intention to sell pursuant to Section 2(d) hereof and receiving a
further notice from McKesson and the Trust pursuant to Section 2(d)(i)(C)
hereof; or
ii. in the event (A) of the happening of any event of the kind
described in Section 2(e)(ii), or (B) that, in the judgment of McKesson, it is
advisable to suspend use of the Prospectus for a discrete period of time due to
pending material corporate developments or similar material events that have not
yet been publicly disclosed and as to which McKesson believes public disclosure
will be prejudicial to McKesson or the Trust, McKesson shall deliver a
certificate in writing, signed by its Chief Executive Officer or Chief Financial
Officer, to the Notice Holders and the Special Counsel to the effect of the
foregoing and, upon receipt of such certificate, each such Notice Holder's
Selling Period will not commence until such Notice Holder's receipt of copies of
the supplemented or amended Prospectus provided for in Section 2(d)(i)(A)
hereof, or until it is advised in writing by McKesson that the Prospectus may be
used, and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus. McKesson
and the Trust will use their reasonable best efforts to ensure that the use of
the Prospectus may be resumed, and the Selling Period will commence, as promptly
as is practicable and, in the case of a pending development or event referred to
in Section 2(d)(ii)(B) hereof, as soon as the earlier of (x) public disclosure
of such pending material corporate development or similar material event or (y)
in the judgment of McKesson, public disclosure of such material corporate
development or similar material event would not be prejudicial to McKesson or
the Trust. Notwithstanding the foregoing, the period during which a Selling
Period is suspended (a "Deferral Period") shall not exceed 60 days, whether or
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not consecutive, in any 12-month period.
e. The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
has not been filed prior to the Filing Date, (ii) prior to the end of the
Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Shelf Registration or proceedings have been initiated with
respect to the Shelf Registration under Section 8(d) or 8(e) of the Securities
Act or (iii) the aggregate number of days in any permitted Deferral Period
exceeds the number permitted pursuant to Section 2(d)(ii) hereof (each of the
events of a type described in any of the
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foregoing clauses (i) through (iii) are individually referred to herein as an
"Event," and the Filing Date in the case of clause (i), the date on which the
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effectiveness of the Shelf Registration has been suspended or proceedings with
respect to the Shelf Registration under Section 8(d) or 8(e) of the Securities
Act have been commenced in the case of clause (ii), the date on which the
duration of a Deferral Period exceeds the aggregate number of days permitted by
Section 2(d)(ii) hereof being referred to herein as an "Event Date"). Events
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shall be deemed to continue until the "Event Termination Date," which shall be
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the following dates with respect to the respective types of Events: the date the
Initial Registration Statement is filed in the case of an Event of the type
described in clause (i), the date that all stop orders suspending effectiveness
of the Shelf Registration have been removed and the proceedings initiated with
respect to the Shelf Registration under Section 8(d) or (e) of the Securities
Act have terminated, as the case may be, in the case of Events of the types
described in clause (ii) and termination of the Deferral Period which caused the
limit on the duration of a Deferral Period set forth in Section 2(d)(ii) to be
exceeded in the case of the commencement of an Event of the type described in
clause (iii).
Accordingly, upon the occurrence of any Event Date and until such time
as there are no Events that have occurred and are continuing (a "Damages Accrual
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Period"), commencing on and including the Event Date on which such Damages
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Accrual Period began, McKesson agrees to pay, as liquidated damages, and not as
a penalty, an additional amount (the "Liquidated Damages Amount"): (i) to each
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Holder of (x) a Convertible Preferred Security or (y) in the event that the
Convertible Debentures are distributed to holders of Convertible Preferred
Securities upon dissolution of the Trust in accordance with the Declaration, a
Convertible Debenture, accruing at a rate equal to one-quarter of one percent
per annum (25 basis points) on an amount equal to the liquidation amount of such
Convertible Preferred Security or principal amount of such Convertible
Debenture, as the case may be, held by such Holder and (ii) to each Holder of
Underlying Common Stock, accruing at a rate equal to one-quarter of one percent
per annum (25 basis points) calculated on an amount equal to the product of (x)
the Applicable Conversion Price as of the Business Day immediately prior to the
applicable Damages Payment Date times (y) the number of shares of Common Stock
that are Registrable Securities held by such Notice Holder. Notwithstanding the
foregoing, no Liquidated Damages Amounts shall accrue with respect to any
Registrable Security from and after the earlier of (x) the date such security is
no longer a Registrable Security, and (y) expiration of the Effectiveness
Period. The rate of accrual of the Liquidated Damages Amount with respect to
any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events. Liquidated
Damages Amounts shall be computed on the basis of a 360-day year of twelve 30-
day months, provided that Liquidated Damages Amounts payable for any period
shorter than a month will be computed on the basis of the actual number of days
elapsed per 30-day month.
McKesson shall pay the liquidated damages due on any Convertible
Preferred Security, Convertible Debenture or Underlying Common Stock by
depositing with the Trustee, in trust for the benefit of the Holders of
Convertible Preferred Securities or Convertible Debentures entitled thereto (or,
in the case of Underlying Common Stock, by depositing with the transfer agent
for the benefit of the Holders of Underlying Common Stock entitled thereto), as
the case may be, at least one Business Day prior to the applicable Damages
Payment Date, sums sufficient to pay all accrued and unpaid liquidated damages
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from and including the last Damages Payment Date to which liquidated damages
have been paid in full (or, if no liquidated damages have been paid in respect
of the relevant Damages Accrual Period, from and including the first day of such
Damages Accrual Period) to, but excluding, such Damages Payment Date. The
Liquidated Damages Amount due shall be payable on each Damages Payment Date to
the Holders of Registrable Securities entitled thereto holding such Registrable
Securities on the record date for such Damages Payment Date (which record date,
in the case of Underlying Common Stock, shall be established by McKesson but
shall in any event be between 10 and 60 days prior to the relevant Damages
Payment Date); provided that, if any Convertible Preferred Securities or
Convertible Debentures (or portions thereof) are called for redemption, accrued
and unpaid liquidated damages thereon shall be paid to the person entitled to
receive accrued and unpaid interest thereon; and provided, further, that if any
Convertible Preferred Security or Convertible Debenture (or portion thereof) is
surrendered for conversion from and after the close of business on a regular
record date and prior to the corresponding distribution payment or interest
payment date, as the case may be, then accrued and unpaid liquidated damages
thereon shall be paid to the person entitled to receive accrued and unpaid
distributions or interest, as the case may be, in respect of such Convertible
Preferred Security or Convertible Debenture (or portion thereof), as the case
may be; and provided, further, that if any Convertible Preferred Security or
Convertible Debenture (or portion thereof) is surrendered for conversion at any
other time, then the converting Holder thereof shall be entitled to receive all
accrued and unpaid Liquidated Damages thereon to but excluding the date of
conversion. The Trustee shall be entitled, on behalf of the Notice Holders and
the Holders of Convertible Preferred Securities, Convertible Debentures or
Underlying Common Stock, to seek any available remedy for the enforcement of
this Agreement, including for the payment of such liquidated damages.
Notwithstanding the foregoing, the parties agree that the sole damages payable
for a violation of the terms of this Agreement with respect to which liquidated
damages are expressly provided shall be such liquidated damages.
All of McKesson's obligations set forth in this Section 2(e) which are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 9(o)).
The parties hereto agree that the liquidated damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities (other than the Initial Purchaser)
by reason of the failure of the Shelf Registration to be filed or declared
effective or available (absolutely or as a practical matter) for effecting
resales of Registrable Securities in accordance with the provisions hereof.
Section 3. Registration Procedures.
In connection with the registration obligations of McKesson and the
Trust under Section 2 hereof, McKesson and the Trust shall use its reasonable
best efforts to effect such registration to permit the sale of the Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto McKesson and the Trust shall as soon as reasonably
practicable:
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a. Prepare and file with the SEC a Registration Statement on any
appropriate form under the Securities Act available for the sale of the
Registrable Securities by the Holders thereof in accordance with the intended
method or methods of distribution thereof, and use their reasonable best efforts
to cause each such Registration Statement to become effective and remain
effective as provided herein; provided, that before the effective date of any
such Registration Statement or Prospectus or any amendments or supplements
thereto (other than documents that would be incorporated or deemed to be
incorporated therein by reference and that McKesson or the Trust is required by
applicable securities laws or stock exchange requirements to file) McKesson and
the Trust shall furnish to the Initial Purchaser and the Special Counsel copies
of all such documents proposed to be filed, which documents will be subject to
the review of the Initial Purchaser and the Special Counsel.
b. Subject to Section 2(d), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously effective for the
applicable period specified in Section 2; subject to Section 2(d), cause the
related Prospectus to be supplemented by any required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act; and, subject to Section 2(d), comply in
all material respects 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 methods of disposition by
the sellers thereof set forth in such Registration Statement as so amended or
such Prospectus as so supplemented.
c. Notify the Notice Holders, the Initial Purchaser and the Special
Counsel and (if requested by any such person) confirm such notice in writing,
(i) when a Prospectus, any Prospectus supplement, a Registration Statement or a
post-effective amendment to a Registration Statement has been filed with the
SEC and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or supplements
to a Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by McKesson or the Trust of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (v) of the existence of any fact
or happening of any event which makes any statement of a material fact in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue or which would require the
making of any changes in the Registration Statement or Prospectus in order that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
that, in the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (vi) of the determination by
McKesson that a post-effective amendment to a Registration Statement would be
appropriate.
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d. Subject to Section 2(d), use their reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction.
e. If reasonably requested by the Initial Purchaser, the Special
Counsel or the Holders of a majority of the Registrable Securities being sold
and subject to Section 2(d), (i) include in a Prospectus supplement or post-
effective amendment to a Registration Statement such information as the Initial
Purchaser, Special Counsel, or such Holders, in connection with any offering of
Registrable Securities, agree with the Company and its counsel should be
included therein as required by applicable law, and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment after
McKesson and the Trust have received notification of the matters to be included
in such Prospectus supplement or post-effective amendment; provided, that
McKesson and the Trust shall not be required to take any actions under this
Section 3(e) that are not, in the reasonable opinion of counsel for McKesson, in
compliance with applicable law.
f. Furnish to each selling Holder, the Special Counsel and the
Initial Purchaser, without charge, at least one conformed copy of the
Registration Statement and any amendment thereto, including financial statements
but excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits (unless requested in writing by such
Holder, the Special Counsel or the Initial Purchaser).
g. Subject to Section 2(d), deliver to each selling Holder, the
Special Counsel and the Initial Purchaser in connection with any offering of
Registrable Securities, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such persons may
reasonably request; and, subject to Section 2(d), McKesson and the Trust hereby
consent to the use of each such Prospectus (including each such preliminary
prospectus) and each amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with any offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
h. Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders and the Special
Counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder reasonably requests in writing; use their
best efforts to keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective; and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, that
neither McKesson nor the Trust will be required to (i) qualify generally to do
business or as a foreign corporation or as a dealer in securities in any
jurisdiction where each would not otherwise be required to so qualify but for
this Section 3(h), (ii) file any general consent to service of process in any
jurisdiction where it is not as of the date hereof so subject or (iii) subject
itself to taxation in any jurisdiction where it is not otherwise so subject.
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i. Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States (except as may be
required solely as a consequence of the nature of such selling Holder, in which
case McKesson and the Trust will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals) as may
be necessary to enable the selling Holder or Holders thereof to consummate the
disposition of such Registrable Securities.
j. Subject to Section 2(d), during any Selling Period (other than
during a Deferral Period), upon the existence of any fact or the occurrence of
any event as a result of which a Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, or a
Prospectus shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, prepare and file a post-effective amendment to such
Registration Statement or a supplement to such Prospectus or any document
incorporated therein by reference or file any other required document (such as a
Current Report on Form 8-K) that would be incorporated by reference into the
Registration Statement or such Prospectus, as the case may be, so that such
Registration Statement shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and so that such
Prospectus will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a post-
effective amendment to a Registration Statement, use their reasonable best
efforts to cause it to become effective as promptly as is practicable.
k. Enter into such customary agreements which are reasonably
acceptable to the Trust and the Company and take all such other reasonably
requested actions in connection therewith in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection (i) make such
representations and warranties, subject to the ability of McKesson and the Trust
to do so, to the Holders of such Registrable Securities with respect to the
business of McKesson and its subsidiaries and the Trust, the Registration
Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and scope as
shall be reasonably satisfactory to the Special Counsel and the Holders of a
majority of the Registered Securities being sold, and (ii) deliver such
documents and certificates as may be reasonably requested by the Holders of a
majority of the Registrable Securities being sold and the Special Counsel to
evidence the continued validity of the representations and warranties of
McKesson and its subsidiaries and the Trust made pursuant to clause (i) above,
provided, however, that any such documents and certificates that are designated
in writing by McKesson or the Trust, in good faith, as confidential at the time
of delivery of such documents and certificates shall be kept confidential by
such Holders and such Special Counsel unless such disclosure is made in
connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without an
accompanying obligation of confidentiality; and provided, further, that the
foregoing inspection and information gathering shall, to
11
the greatest extent possible, be coordinated on behalf of the Holders by the
Special Counsel and other parties reasonably acceptable to McKesson and the
Trust. The plan of distribution of the Registration Statement and the Prospectus
included therein shall permit resales of Registrable Securities to be made by
selling security holders through brokers and dealers. However, neither McKesson
nor the Trust will be obligated hereunder to pay the costs and expenses of
opinions of counsel of such selling security holders or accountants' "cold
comfort" letters, and neither the officers and directors of McKesson nor the
trustees of the Trust will be obligated hereunder to participate in marketing
efforts on behalf of such selling securityholders.
l. If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for inspection
by a representative of the Holders of Registrable Securities being sold, the
Special Counsel, and any accountant retained by such selling Holders, financial
and other records, pertinent corporate documents and properties of McKesson and
the Trust and its subsidiaries, and cause the executive officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, Special Counsel or accountant
in connection with such disposition; subject to reasonable assurances by each
such person that such information will only be used in connection with matters
relating to such Registration Statement and subject further to the
confidentiality provisions stated in Section 3(k).
m. The Company and the Trust shall each use its best efforts to
comply with all applicable rules and regulations of the SEC, and to make
generally available to its security-holders as soon as practicable, but in any
event not later than 18 months after (i) the effective date (as defined in Rule
158(c) under the Securities Act) of the Registration Statement, (ii) the
effective date of each post effective amendment to the Registration Statement,
and (iii) the date of each filing by the Company with the SEC of an Annual
Report on Form 10-K that is incorporated by reference in the Registration
Statement, an earnings statement of the Company and its subsidiaries complying
with Section 11(a) of the Securities Act and the rules and regulations of the
SEC thereunder (including, at the option of the Company, Rule 158).
n. 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 and registered in
such names as the Holders may request.
o. Provide a CUSIP number for all Registrable Securities not later
than the effective date of the Registration Statement and provide the Trustee
and the transfer agent for the Common Stock with printed certificates for the
Registrable Securities which are in a form eligible for deposit with The
Depository Trust Company, as applicable.
p. Cause all Underlying Common Stock covered by the Registration
Statement to be listed on each securities exchange or quotation system on which
the Common Stock is then listed no later than the date the Registration
Statement is declared effective and, in connection therewith, to the extent
applicable, to make such filings under the Exchange Act
12
(e.g., the filing of a Registration Statement on Form 8-A) and to have such
filings declared effective thereunder.
q. Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
Section 4. Holder's Obligations.
Each Holder, severally and not jointly, agrees, by acquisition of the
Registrable Securities, that such Holder of Registrable Securities shall not be
entitled to sell any of such Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished McKesson and the Trust with the notice required pursuant to Section
2(d) hereof (including the information required to accompany such notice) and,
promptly after the request by McKesson and the Trust, such other information
regarding such Holder and the distribution of such Registrable Securities as
McKesson and the Trust may from time to time reasonably request. McKesson and
the Trust may exclude from such registration the Registrable Securities of any
Holder who does not furnish such information provided above for so long as such
information is not so furnished. Each Holder of Registrable Securities as to
which any Registration Statement is being effected, severally and not jointly,
agrees promptly to furnish to McKesson and the Trust all information required to
be disclosed in order to make the information previously furnished to McKesson
and the Trust by such Holder not misleading. Any sale of any Registrable
Securities by any Holder shall constitute a representation and warranty by such
Holder, severally and not jointly, that the information relating to such Holder
and its plan of distribution is as set forth in the Prospectus delivered by such
Holder in connection with such disposition, that such Prospectus does not as of
the time of such sale contain any untrue statement of a material fact relating
to such Holder or its plan of distribution and that such Prospectus does not as
of the time of such sale omit to state any material fact relating to such Holder
or its plan of distribution necessary to make the statements in such Prospectus,
in the light of the circumstances under which they were made, not misleading.
Section 5. Registration Expenses.
Subject to the last sentence of Section 3(k) hereof, all fees and
expenses incident to the performance by McKesson and the Trust of or compliance
with this Agreement (the "Registration Expenses") shall be borne by McKesson
whether or not any of the Registration Statements become effective. Such
Registration Expenses shall include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses (x) with
respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) of compliance with federal and state securities
or Blue Sky laws (including, without limitation, fees and disbursements of
Special Counsel in connection with Blue Sky qualifications of the Registrable
Securities under the laws of such jurisdictions as any Holders of Registrable
Securities being sold may designate)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depositary Trust Company and of printing
Prospectuses), (iii) messenger, telephone and delivery expenses and (iv) fees
and disbursements of counsel for McKesson and the Trust and reasonable fees and
disbursements of the Special Counsel in
13
connection with the Shelf Registration (provided that McKesson shall not be
liable for the fees and expenses of more than one counsel for all parties
participating in any transaction hereunder). In addition, McKesson shall pay the
internal expenses of McKesson and the Trust (including, without limitation, all
salaries and expenses of officers and employees performing legal or accounting
duties), the expense of any annual audit, the fees and expenses incurred in
connection with the listing of the Underlying Common Stock and the fees and
expenses of any person, including special experts, retained by McKesson or the
Trust. Notwithstanding the provisions of this Section 5, each seller of
Registrable Securities shall pay all individual selling expenses of such seller,
including such seller's brokers' commissions.
Section 6. Indemnification; Contribution.
a. Indemnification by McKesson. McKesson and the Trust, jointly and
severally, agree to indemnify and hold harmless each Holder and each person, if
any, who controls any Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by (i) any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any amendment thereof, 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 (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or any Prospectus (or
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; except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Holder furnished to McKesson and the Trust in
writing by such Holder expressly for use therein. McKesson and the Trust,
jointly and severally, shall also indemnify each broker-dealer participating in
the offering and sale of Registrable Securities and each person who controls any
such broker-dealer (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent and with the same limitations
as provided above with respect to the indemnification of the Holders of
Registrable Securities.
The foregoing notwithstanding, the Trust and McKesson shall not be
liable to the extent that such losses, claims, damages or liabilities arise out
of or are based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Prospectus that is a preliminary prospectus if
(i) such indemnified person failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale of Registrable
Securities giving rise to such losses, claims, damages or liabilities and (ii)
the Prospectus would have corrected such untrue statement or omission.
b. Indemnification by Holder of Registrable Securities. Each Holder
agrees, severally and not jointly, to indemnify and hold harmless McKesson and
the Trust, McKesson's directors, McKesson's officers who sign a Registration
Statement, the MFT
14
Trustees, and each person, if any, who controls McKesson or the Trust within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement or any amendment thereof, any preliminary
prospectus or any Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by 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, but only
with reference to information relating to such Holder furnished to the Company
and the Trust in writing by such Holder expressly for use in such Registration
Statement, preliminary prospectus, Prospectus or any amendments or supplements
thereto. In no event shall the liability of any Holder of Registrable Securities
hereunder be greater in amount than the net dollar amount of the proceeds
received by such Holder from the sale of the Registrable Securities giving rise
to such indemnification obligation.
c. Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "indemnified party") shall promptly
-----------------
notify the person against whom such indemnity may be sought (the "indemnifying
------------
party") in writing and the indemnifying party, upon request of the indemnified
-----
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Holders and all persons, if any, who control any Holders within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
and (b) the fees and expenses of more than one separate firm (in addition to any
local counsel) for McKesson and the Trust and each person, if any, who controls
McKesson or the Trust within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for McKesson and the Trust and any such control persons
of McKesson or the Trust, such firm shall be designated in writing by McKesson.
In the case of any such separate firm for the Holders or any such control
persons of any Holders, such firm shall be designated in writing on behalf of
the Holders of a majority of the relevant Registrable Securities. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
15
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
d. Contribution. To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to herein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this paragraph are several in
proportion to the respective number of Registrable Securities they have sold
pursuant to a Registration Statement, and not joint.
e. The Company, the Trust and the Holders agree that it would not be
just or equitable if contribution pursuant to Section 6(d) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) of this
Section 6. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in paragraph (d) of this
Section 6 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 Section 6, a Holder of Registrable
Securities shall not be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities sold by such
indemnifying party and distributed to the public were offered to the public
pursuant to any Registration Statement exceeds the amount of any damages which
such indemnifying party 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 be entitled to contribution from any
16
person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 6 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
f. The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or any person controlling any Holder, or McKesson or the Trust or
any person controlling McKesson or the Trust and (iii) the sale of any
Registrable Securities by any Holder.
Section 7. Information Requirements.
x. XxXxxxxx and the Trust shall file the reports required to be
filed by it under the Securities Act and the Exchange Act, and if at any time
McKesson or the Trust is not required to file such reports, it will, upon the
reasonable request of any Holder of Registrable Securities, make publicly
available other information so long as necessary to permit sales of Registrable
Securities pursuant to Rule 144 and Rule 144A under the Securities Act. Upon the
request of any Holder of Registrable Securities, each of McKesson and the Trust
shall deliver to such Holder a written statement as to whether it has complied
with such filing requirements. McKesson and the Trust further covenant that they
will cooperate with any Holder of Registrable Securities and take such further
reasonable action as any Holder of Registrable Securities may reasonably request
(including, without limitation, making such reasonable representations as any
such Holder may reasonably request), all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 and Rule 144A under the Securities Act. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require McKesson or the Trust to
register any of its securities (other than the Common Stock) under any section
of the Exchange Act.
x. XxXxxxxx and the Trust shall file the reports required to be
filed by it under the Exchange Act and shall use its best efforts to comply with
all other requirements set forth in the instructions to Form S-3 in order to
allow it to be eligible to file registration statements on Form S-3.
17
Section 8. Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 9. Miscellaneous
a. No Conflicting Agreements. Neither McKesson nor the Trust has, as
of the date hereof, entered into, nor shall McKesson or the Trust, on or after
the date of this Agreement, enter into, any agreement with respect to its
securities which conflicts with the rights granted to the Holders of Registrable
Securities in this Agreement. Each of McKesson and the Trust represents and
warrants that the rights granted to the Holders of Registrable Securities
hereunder do not in any way conflict with the rights granted to the Holders of
McKesson's or the Trust's securities under any other agreements.
b. 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 McKesson and the Trust have obtained the written
consent of Holders of a majority of the then outstanding Underlying Common Stock
constituting Registrable Securities (with Holders of Convertible Preferred
Securities deemed to be the Holders, for purposes of this Section, of the number
of outstanding shares of Underlying Common Stock into which such Convertible
Preferred Securities are convertible or exchangeable or, in the event that the
Convertible Debentures have been distributed to Holders upon liquidation of the
Trust, with the Holders of Convertible Debentures deemed to be the Holders, for
purpose of this Section, the number of outstanding shares of Underlying Common
Stock into which such Convertible Debentures are convertible). Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by Holders of at
least a majority of the Registrable Securities being
18
sold by such Holders; provided, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the provisions of
the immediately preceding sentence.
c. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by telecopier,
(iii) one (1) Business Day after being deposited with a reputable next-day
courier, postage prepaid, or (iv) three (3) Business Days after being deposited
with the United States Postal Service, with first-class postage prepaid to the
parties as follows:
(A) if to a Holder of Registrable Securities, at the most current
address given by such Holder to McKesson and the Trust in accordance with
the provisions of Section 9(e);
(B) if to McKesson, to:
McKesson Corporation
XxXxxxxx Xxxxx
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
(C) if to the Trust, to:
McKesson Financing Trust
x/x XxXxxxxx Xxxxxxxxxxx
XxXxxxxx Xxxxx
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
and
(D) if to the Special Counsel, to:
Xxxxx & Xxxx llp
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
19
or to such other address as such person may have furnished to the other persons
identified in this Section 9(d) in writing in accordance herewith.
d. Owner of Registrable Securities. McKesson and the Trust will
maintain, or will cause its registrar and transfer agent to maintain, a register
with respect to the Registrable Securities in which all transfers of Registrable
Securities of which McKesson or the Trust has received notice will be recorded.
McKesson and the Trust may deem and treat the person in whose name Registrable
Securities are registered in such register of McKesson and the Trust as the
owner thereof for all purposes, including, without limitation, the giving of
notices under this Agreement.
e. Approval of Holders. Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by McKesson, the Trust or their respective
affiliates (as such term is defined in Rule 405 under the Securities Act) (other
than the Initial Purchaser or subsequent Holders of Registrable Securities if
such subsequent Holders are deemed to be such affiliates solely by reason of
their holdings of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
f. Successors and Assigns. Any person who purchases any Registrable
Securities from the Initial Purchaser shall be deemed, for purposes of this
Agreement, to be an assignee of such Initial Purchaser. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities.
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 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, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
j. Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, void or unenforceable.
20
k. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is 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 and the registration rights
granted by McKesson and the Trust with respect to the Registrable Securities
sold pursuant to the Placement Agreement. Except as provided in the Placement
Agreement, 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 McKesson and the Trust with respect to the
Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights.
l. Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
their terms.
m. Joint and Several Obligations. Anything herein to the contrary
notwithstanding, the representations, warranties, covenants and agreements of
McKesson and the Trust contained in this Agreement are joint and several, other
than the obligations under Section 5 hereof.
n. Majority Holders. To the extent that this Agreement provides for
any action, decision or determination to be taken or made by Holders of a
majority of all the Registrable Securities or by Holders of a majority of
certain Registrable Securities, then the determination of such majority holders
shall be made in the same manner as is specified in Section 9(c).
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
McKESSON CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
McKESSON FINANCING TRUST
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Trustee
Solely as trustee and not in
his individual capacity
Accepted as of the date first
above written,
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxx X. Xxxx
---------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
