EXHIBIT 4.4
EXECUTION COPY
BANC OF AMERICA SECURITIES LLC
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
$250,000,000 AGGREGATE PRINCIPAL AMOUNT
APRIA HEALTHCARE GROUP INC.
3 3/8% CONVERTIBLE SENIOR NOTES
DUE 2033
REGISTRATION RIGHTS AGREEMENT
DATED AUGUST 20, 2003
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of August 20, 2003 by and among Apria Healthcare Group Inc., a
Delaware corporation (the "COMPANY"), Banc of America Securities LLC, X.X.
Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx & Co. Incorporated, as representatives
of the initial purchasers (the "INITIAL PURCHASERS"), pursuant to the Purchase
Agreement, dated as of August 15, 2003, among the Company and the Initial
Purchasers (the "PURCHASE AGREEMENT"). In order to induce the Initial Purchasers
to enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following meanings:
(a) "ADDITIONAL AMOUNTS" has the meaning assigned thereto
in Section 2(e).
(b) "ADDITIONAL AMOUNTS PAYMENT DATE" has the meaning
assigned thereto in Section 2(e).
(c) "AFFILIATE" shall have the meaning specified in Rule
405 under the Securities Act and the terms "controlling" and
"controlled" shall have meanings correlative thereto.
(d) "AGREEMENT" has the meaning specified in the first
paragraph of this Agreement.
(e) "APPLICABLE CONVERSION PRICE" means, as of any date
of determination, $1,000 divided by the Conversion Rate in effect as of
such date of determination.
(f) "BUSINESS DAY" means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
The City of New York are authorized or obligated by law or executive
order to close.
(g) "CLOSING DATE" means the date on which the Notes are
initially issued.
(h) "COMMISSION" means the Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute
for the particular purpose.
(i) "COMMON STOCK" means the $.001 par value common stock
of the Company.
(j) "COMPANY" has the meaning specified in the first
paragraph of this Agreement.
(k) "CONVERSION RATE" shall have the meaning assigned
such term in the Indenture.
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(l) "EFFECTIVE PERIOD" has the meaning assigned thereto
in Section 2(a).
(m) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
(n) "HOLDER" means each holder, from time to time, of
Transfer Restricted Securities (including the Initial Purchasers).
(o) "INDEMNIFIED HOLDER" has the meaning assigned thereto
in Section 6(a) hereof.
(p) "INDENTURE" means the Indenture, dated as of August
20, 2003, between the Company and U.S. Bank National Association, as
Trustee, pursuant to which the Notes are being issued.
(q) "INITIAL PLACEMENT" means the initial placement of
the Securities pursuant to the terms of the Purchase Agreement.
(r) "INITIAL PURCHASERS" has the meaning specified in the
first paragraph of this Agreement.
(s) "LOSSES" has the meaning assigned thereto in Section
6(d).
(t) "MATERIAL EVENT" has the meaning assigned thereto in
Section 3(a)(iv).
(u) "MAJORITY HOLDERS" shall mean Holders holding over
50% of the aggregate principal amount of Notes outstanding; provided
that, for the purpose of this definition, a holder of Shares shall be
deemed to hold an aggregate principal amount of Notes (in addition to
the principal amount of Notes held by such holder) equal to the
quotient of (x) the number of such Shares held by such holder and (y)
the Conversion Rate.
(v) "NASD" shall mean the National Association of
Securities Dealers, Inc.
(w) "NASD RULES" shall mean the Conduct Rules and the
By-Laws of the NASD.
(x) "NOTES" means the Company's 3 3/8% Convertible Senior
Notes due 2033, to be issued under the Indenture and sold by the
Company to the Initial Purchasers, and securities (other than the
Shares) of the Company issued in exchange therefor or in lieu thereof
pursuant to the Indenture.
(y) "NOTICE AND QUESTIONNAIRE" means a written notice,
duly executed and delivered to the Company containing the information
called for by the Form of Selling Securityholder Notice and
Questionnaire attached as Annex A to the Offering Memorandum and such
other information as the Company may reasonably request.
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(z) "NOTICE HOLDER" means, on any date, any Holder that
has delivered a Notice and Questionnaire to the Company on or prior to
such date.
(aa) "OFFERING MEMORANDUM" means the Offering Memorandum
dated August 15, 2003 relating to the offer and sale of the Securities.
(bb) "PERSON" means a corporation, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
(cc) "PROSPECTUS" means the prospectus included in any
Shelf Registration Statement, as amended or supplemented by any
amendment or prospectus supplement, including post-effective
amendments, and all materials incorporated by reference or explicitly
deemed to be incorporated by reference in such Prospectus.
(dd) "PURCHASE AGREEMENT" has the meaning specified in the
first paragraph of this Agreement.
(ee) "REGISTRATION DEFAULT" has the meaning assigned
thereto in Section 2(e).
(ff) "REGISTRATION EXPENSES" has the meaning assigned
thereto in Section 5.
(gg) "RULE 144," "RULE 405" and "RULE 415" means, in each
case, such rule as promulgated under the Securities Act.
(hh) "SECURITIES" means, collectively, the Notes and the
Shares.
(ii) "SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(jj) "SHARES" means the shares of common stock of the
Company, par value $0.001 per share, into which the Notes are
convertible or that have been issued upon any conversion from Notes
into common stock of the Company.
(kk) "SHELF REGISTRATION STATEMENT" means the shelf
registration statement referred to in Section 2(a), as amended or
supplemented by any amendment or supplement, including post-effective
amendments, and all materials incorporated by reference or explicitly
deemed to be incorporated by reference in such Shelf Registration
Statement.
(ll) "SUSPENSION NOTICE" has the meaning assigned thereto
in Section 3(b).
(mm) "SUSPENSION PERIOD" has the meaning assigned thereto
in Section 3(b).
(nn) "TRANSFER RESTRICTED SECURITIES" means each Security
until the earlier of:
(i) the date on which a registration statement
registering such Security under the Securities Act has been
declared or becomes effective and such Security
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has been sold or otherwise transferred by the Holder thereof
pursuant to such effective registration statement;
(ii) such Security is sold pursuant to Rule 144
under circumstances in which any legend borne by such Security
relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed or such Security is
eligible to be sold pursuant to Rule 144(k) or any successor
provision; or
(iii) such Security shall cease to be outstanding
(including, in the case of the Notes, upon conversion into
Shares).
(oo) "TRUST INDENTURE ACT" means the Trust Indenture Act
of 1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
(pp) "TRUSTEE" shall have the meaning assigned such term
in the Indenture.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. Registration Under the Securities Act.
(a) The Company agrees to file under the Securities Act
within 90 days after the Closing Date a shelf registration statement
providing for the registration of, and the sale on a continuous or
delayed basis (including through brokers and dealers) by the Holders
of, all of the Transfer Restricted Securities, pursuant to Rule 415 or
any similar rule that may be adopted by the Commission. The Company
agrees to use commercially reasonable efforts to cause the Shelf
Registration Statement to become or be declared effective within 180
days after the Closing Date and to keep such Shelf Registration
Statement continuously effective until the earlier of (i) the second
anniversary of the initial Closing Date (ii) the expiration of the
holding period applicable to the Securities held by non-affiliates
under Rule 144(k), and (iii) such time as there are no longer any
Transfer Restricted Securities outstanding (the "EFFECTIVE PERIOD"). At
the time the Shelf Registration Statement is declared effective, each
Holder that became a Notice Holder on or prior to the date fifteen days
prior to such time of effectiveness shall be named as a selling
securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Transfer Restricted Securities in
accordance with applicable law. None of the Company's securityholders
(other than Notice Holders) shall have the right to include any of the
Company's securities in the Shelf Registration Statement.
(b) The Company further agrees that it shall cause the
Shelf Registration Statement and the related Prospectus and any
amendment or supplement thereto, as of the effective date of the Shelf
Registration Statement or such amendment or supplement, (i)
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to comply in all material respects with the applicable requirements of
the Securities Act; and (ii) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein (in the
case of the Prospectus, in the light of the circumstances under which
they were made) not misleading, and the Company agrees to furnish to
the Holders of the Transfer Restricted Securities copies of any
supplement or amendment prior to its being used or promptly following
its filing with the Commission. If the Shelf Registration Statement, as
amended or supplemented from time to time ceases to be effective for
any reason at any time during the Effective Period (other than because
all Transfer Restricted Securities registered thereunder shall have
been sold pursuant thereto or shall have otherwise ceased to be
Transfer Restricted Securities), the Company shall use commercially
reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof. .
(c) The Company shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company
for such Shelf Registration Statement, if required by the Securities
Act or as reasonably requested by the Initial Purchasers or by the
Trustee on behalf of the Holders of the Transfer Restricted Securities
covered by such Shelf Registration Statement.
(d) Each Holder of Transfer Restricted Securities agrees
that if such Holder wishes to sell Transfer Restricted Securities
pursuant to the Shelf Registration Statement and related Prospectus, it
will do so only in accordance with this Section 2(d) and Section 3(b).
Each Holder of Transfer Restricted Securities wishing to sell Transfer
Restricted Securities pursuant to the Shelf Registration Statement and
related Prospectus agrees to deliver a Notice and Questionnaire to the
Company at least three Business Days prior to any intended distribution
of Transfer Restricted Securities under the Shelf Registration
Statement. From and after the date the Shelf Registration Statement is
declared effective, the Company shall, within five Business Days after
the date a Notice and Questionnaire is delivered,
(i) if required by applicable law, file with the
Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by
applicable law, file 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 the
Holder delivering such Notice and Questionnaire is named as a
selling security holder in the Shelf Registration Statement
and the related Prospectus in such a manner as to permit such
Holder to deliver such Prospectus to purchasers of the
Transfer Restricted Securities in accordance with applicable
law and, if the Company shall file a post-effective amendment
to the Shelf Registration Statement, use commercially
reasonable efforts to cause such post-effective amendment to
be declared effective under the Securities Act within 60 days
of filing;
(ii) provide such Holder copies of any documents
filed pursuant to Section 2(d)(i); and
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(iii) notify such Holder as promptly as
practicable after the effectiveness under the Securities Act
of any post-effective amendment filed pursuant to Section
2(d)(i);
provided that if such Notice and Questionnaire is delivered during a
Suspension Period, the Company shall so inform the Holder delivering
such Notice and Questionnaire and shall take the actions set forth in
clauses (i), (ii) and (iii) above upon expiration of the Suspension
Period in accordance with Section 3(b). Notwithstanding anything
contained herein to the contrary, the Company shall be under no
obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Shelf Registration Statement or related
Prospectus; provided, however, that any Holder that becomes a Notice
Holder pursuant to the provisions of this Section 2(d) (whether or not
such Holder was a Notice Holder at the time the Shelf Registration
Statement was declared effective) shall be named as a selling
securityholder in the Shelf Registration Statement or related
Prospectus in accordance with the requirements of this Section 2(d).
(e) If any of the following events (any such event a
"REGISTRATION DEFAULT") shall occur, then liquidated damages (the
"ADDITIONAL AMOUNTS") shall become payable to Holders in respect of the
Securities as follows:
(i) if the Shelf Registration Statement is not
filed with the Commission within 90 days following the Closing
Date, then commencing on the 91st day after the Closing Date,
Additional Amounts shall accrue on the principal amount of the
outstanding Notes that are Transfer Restricted Securities and
on the Applicable Conversion Price of any outstanding Shares
that are Transfer Restricted Securities at a rate of 0.25% per
annum for the first 90 days from and including such 91st day
and at a rate of 0.5% per annum thereafter; or
(ii) if the Shelf Registration Statement is not
declared effective by the Commission within 180 days following
the Closing Date, then commencing on the 181st day after the
Closing Date, Additional Amounts shall accrue on the principal
amount of the outstanding Notes that are Transfer Restricted
Securities and on the Applicable Conversion Price of any
outstanding Shares that are Transfer Restricted Securities at
a rate of 0.25% per annum for the first 90 days from and
including such 181st day and at a rate of 0.5% per annum
thereafter; or
(iii) if the Company has failed to perform its
obligations set forth in Section 2(d) hereof within the time
periods required therein, then commencing on the first day
after the date by which the Company was required to perform
such obligations, Additional Amounts shall accrue on the
principal amount of the outstanding Notes that are Transfer
Restricted Securities and on the Applicable Conversion Price
of any outstanding Shares that are Transfer Restricted
Securities at a rate of 0.25% per annum for the first 90 days
and at a rate of 0.5% per annum thereafter;
(iv) if the Shelf Registration Statement has been
declared effective but such Shelf Registration Statement
ceases to be effective at any time during the
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Effective Period (other than pursuant to Section 3(b) hereof)
without being succeeded within five Business Days by a
post-effective amendment to the Shelf Registration Statement,
a supplement to the Prospectus or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act that cures such failure and, in the case of a
post-effective amendment, is itself immediately declared
effective, then commencing on such fifth Business Day,
Additional Amounts shall accrue on the principal amount of the
outstanding Notes that are Transfer Restricted Securities and
on the Applicable Conversion Price of any outstanding Shares
that are Transfer Restricted Securities at a rate of 0.25% per
annum for the first 90 days following such date on which the
Shelf Registration Statement ceases to be effective and at a
rate of 0.5% per annum thereafter; or
(v) if the aggregate duration of Suspension
Periods in any period exceeds the number of days permitted in
respect of such period pursuant to Section 3(b) hereof, then
commencing on the day the aggregate duration of Suspension
Periods in any period exceeds the number of days permitted in
respect of such period (and again on the first day of any
subsequent Suspension Period during such period), Additional
Amounts shall accrue on the principal amount of the
outstanding Notes that are Transfer Restricted Securities and
on the Applicable Conversion Price of any outstanding Shares
that are Transfer Restricted Securities at a rate of 0.25% per
annum for the first 90 days and at a rate of 0.5% per annum
thereafter;
provided, however, that the Additional Amounts rate on the Securities
shall not exceed in the aggregate 0.5% per annum and shall not be
payable under more than one clause above for any given period of time,
except that if Additional Amounts would be payable under more than one
clause above, but at a rate of 0.25% per annum under one clause and at
a rate of 0.5% per annum under the other, then the Additional Amounts
rate shall be the higher rate of 0.5% per annum; provided further,
however, that (1) upon the filing of the Shelf Registration Statement
(in the case of clause (i) above), (2) upon the effectiveness of the
Shelf Registration Statement (in the case of clause (ii) above), (3)
upon the Company's performing its obligations set forth in Section 2(d)
hereof (in the case of clause (iii) above), (4) upon the effectiveness
of the Shelf Registration Statement which had ceased to remain
effective (in the case of clause (iv) above), (5) upon the termination
of the Suspension Period that caused the limit on the aggregate
duration of Suspension Periods in a period set forth in Section 3(b) to
be exceeded (in the case of clause (v) above) or (6) upon the
termination of certain transfer restrictions on the Securities as a
result of the application of Rule 144(k) or any successor provision,
Additional Amounts on the Securities as a result of such clause, as the
case may be, shall cease to accrue.
Additional Amounts on the Securities, if any, will be
payable in arrears in cash on September 1 and March 1 of each year (the
"ADDITIONAL AMOUNTS PAYMENT DATE") to holders of record of outstanding
Transfer Restricted Securities on each preceding August 15 and February
15; provided that any Additional Amounts accrued with respect to any
Note or portion thereof redeemed or repurchased by the Company on a
redemption date or a repurchase date or converted for Shares on a
conversion date prior
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to the Additional Amounts Payment Date, shall, in any such event, be
paid instead to the Holder who submitted such Note or portion thereof
for redemption, repurchase or conversion on the applicable redemption
date, repurchase date or conversion date, as the case may be, on such
date (or promptly following the conversion date, in the case of
conversion). In the event that the Notes have been converted into
Shares that are Transfer Restricted Securities and Additional Amounts
are payable by the Company in respect of such Transfer Restricted
Securities, the date of determination of the Applicable Conversion
Price of any outstanding Shares that are Transfer Restricted Securities
shall be the Business Day immediately preceding the date that
Additional Amounts are scheduled to be paid; provided that in the case
of an event of the type described in clause (iii) above, such
Additional Amounts shall be paid only to the Holders that have
delivered Notice and Questionnaires that caused the Company to incur
the obligations set forth in Section 2(d), the non-performance of which
is the basis of such Registration Default. Following the cure of all
Registration Defaults requiring the payment of Additional Amounts by
the Company to the Holders of Transfer Restricted Securities pursuant
to this Section, the accrual of Additional Amounts will cease (without
in any way limiting the effect of any subsequent Registration Default
requiring the payment of Additional Amounts by the Company).
The Trustee shall be entitled, on behalf of Holders
of Securities, to seek any available remedy for the enforcement of this
Agreement, including for the payment of any Additional Amounts.
Notwithstanding the foregoing, the parties agree that the sole monetary
damages payable for a violation of the terms of this Agreement with
respect to which Additional Amounts are expressly provided shall be as
set forth in this Section 2(e).
3. Registration Procedures.
The following provisions shall apply to the Shelf Registration
Statement filed pursuant to Section 2:
(a) The Company shall:
(i) prepare and file with the Commission a
registration statement with respect to the shelf registration
on any form which may be utilized by the Company and which
shall permit the disposition of the Transfer Restricted
Securities in accordance with the intended method or methods
thereof, as specified in writing by the Holders of the
Transfer Restricted Securities, and use commercially
reasonable efforts to cause such registration statement to
become effective in accordance with Section 2(a) above;
(ii) before filing any Shelf Registration
Statement or Prospectus or any amendments or supplements
thereto with the Commission, furnish to the Initial Purchasers
copies of all such documents proposed to be filed (but
excluding all such documents incorporated or deemed to be
incorporated by reference in the Shelf Registration Statement
and all exhibits thereto) and use commercially reasonable
efforts to reflect in each such document when so filed with
the
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Commission such comments as the Initial Purchasers reasonably
shall propose within three Business Days of the delivery of
such copies to the Initial Purchasers;
(iii) use its commercially reasonable efforts to
prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement
and file with the Commission any other required document as
may be necessary to keep such Shelf Registration Statement
continuously effective until the expiration of the Effective
Period; 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 comply with the
provisions of the Securities Act applicable to it with respect
to the disposition of all Securities covered by such Shelf
Registration Statement during the Effective Period in
accordance with the intended methods of disposition by the
sellers thereof set forth in such Shelf Registration Statement
as so amended or such Prospectus as so supplemented;
(iv) promptly notify the Notice Holders of
Transfer Restricted Securities (A) when such Shelf
Registration Statement or the Prospectus included therein or
any amendment or supplement to the Prospectus or
post-effective amendment has been filed with the Commission,
and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective,
(B) of any request, following the effectiveness of the Shelf
Registration Statement, by the Commission or any other Federal
or state governmental authority for amendments or supplements
to the Shelf Registration Statement or related Prospectus or
for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of
such Shelf Registration Statement or the initiation or written
threat of any proceedings for that purpose, (D) of the receipt
by the Company of any notification with respect to the
suspension of the qualification of the Transfer Restricted
Securities for sale in any jurisdiction or the initiation or
written threat of any proceeding for such purpose, (E) of the
occurrence of (but not the nature of or details concerning)
any event or the existence of any fact (a "MATERIAL EVENT") as
a result of which any Shelf 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
any 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 (provided, however, that no notice by the
Company shall be required pursuant to this clause (E) in the
event that the Company either promptly files a Prospectus
supplement to update the Prospectus or a Form 8-K or other
appropriate Exchange Act report that is incorporated by
reference into the Shelf Registration Statement, which, in
either case, contains the requisite information with respect
to such Material Event that results in such Shelf Registration
Statement no longer containing any untrue statement of
material fact or omitting to state a material fact necessary
to make the statements contained therein not misleading), (F)
of the determination by the Company that a post-effective
amendment to the Shelf Registration Statement
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will be filed with the Commission, which notice may, at the
discretion of the Company (or as required pursuant to Section
3(b)), state that it constitutes a Suspension Notice, in which
event the provisions of Section 3(b) shall apply or (G) at any
time when a Prospectus is required to be delivered under the
Securities Act, that the Shelf Registration Statement,
Prospectus, Prospectus amendment or supplement or
post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder;
(v) prior to any public offering of the Transfer
Restricted Securities pursuant to the Shelf Registration
Statement, use commercially reasonable efforts to register or
qualify or cooperate with the Notice Holders in connection
with the registration or qualification (or exemption from such
registration or qualification) of such Transfer Restricted
Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any
Notice Holder reasonably requests in writing (which request
may be included in the Notice and Questionnaire); prior to any
public offering of the Transfer Restricted Securities pursuant
to the Shelf Registration Statement, use commercially
reasonable efforts to keep each such registration or
qualification (or exemption therefrom) effective during the
Effective Period in connection with such Notice Holder's offer
and sale of Transfer Restricted Securities pursuant to such
registration or qualification (or exemption therefrom) and do
any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of such Transfer
Restricted Securities in the manner set forth in the Shelf
Registration Statement and the related Prospectus; provided,
that the Company will 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 Agreement or (ii) take any action that
would subject it to general service of process in suits or to
taxation in any such jurisdiction where it is not then so
subject;
(vi) use commercially reasonable efforts to
prevent the issuance of, and if issued, to obtain the
withdrawal of any order suspending the effectiveness of the
Shelf Registration Statement or any post-effective amendment
thereto, and to lift any suspension of the qualification of
any of the Transfer Restricted Securities for sale in any
jurisdiction in which they have been qualified for sale, in
each case at the earliest practicable date;
(vii) upon reasonable notice, for a reasonable
period prior to the filing of the Shelf Registration
Statement, and throughout the Effective Period, make available
at reasonable times at the Company's principal place of
business or such other reasonable place for inspection by a
representative appointed by the Notice Holders in connection
with an underwritten offering (or any underwriter, placement
agent or counsel acting on their behalf), who shall certify to
the Company that they have a current intention to sell their
Transfer Restricted Securities pursuant to the Shelf
Registration Statement, such financial and other information
and books and records of the Company, and cause the officers,
directors, employees and independent certified public
accountants of the
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Company to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the counsel to such Notice
Holders, to conduct a reasonable "due diligence"
investigation; provided, however, that each such
representative appointed by the Notice Holders in connection
with an underwritten offering shall be required to maintain in
confidence and not to disclose to any other Person any
information or records reasonably designated by the Company in
writing as being confidential, until such time as (A) such
information becomes a matter of public record (whether by
virtue of its inclusion in the Shelf Registration Statement or
otherwise) or (B) such Person shall be required so to disclose
such information pursuant to a subpoena or order of any court
or other governmental agency or body having jurisdiction over
the matter (subject to the requirements of such order, and
only after such Person shall have given the Company prompt
prior written notice of such requirement and the opportunity
to contest the same or seek an appropriate protective order);
provided, however, that notwithstanding anything express or
implied to the contrary in this Agreement and the documents
referred to herein, each Notice Holder, and each of the
respective employees, representatives and agents of such
Notice Holder, may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of
the transaction and all materials of any kind that are
provided to any such persons relating to such tax treatment
and tax structure. However, the foregoing does not constitute
an authorization to disclose the Company's identity or that of
the Company's affiliates, agents or advisers, or, except to
the extent relating to such tax structure or tax treatment,
any special pricing terms or commercial or financial
information;
(viii) if reasonably requested by the Initial
Purchasers or any Notice Holder, promptly incorporate in a
Prospectus supplement or post-effective amendment to the Shelf
Registration Statement such information as the Initial
Purchasers or such Notice Holder shall, on the basis of a
written opinion of nationally-recognized counsel experienced
in such matters, determine to be required to be included
therein by applicable law and make any required filings of
such Prospectus supplement or such post-effective amendment;
provided, that the Company shall not be required to take any
actions under this Section 3(a)(viii) that are not, in the
reasonable opinion of counsel for the Company, in compliance
with applicable law;
(ix) promptly furnish to each Notice Holder and
the Initial Purchasers, upon their request and without charge,
at least one (1) conformed copy (or an electronic copy
thereof) of the Shelf Registration Statement and any
amendments thereto, including financial statements (if such
are included in the Shelf Registration Statement) but
excluding schedules, all documents incorporated or deemed to
be incorporated therein by reference and all exhibits; and
(x) during the Effective Period, deliver to each
Notice Holder in connection with any sale of Transfer
Restricted Securities pursuant to the Shelf Registration
Statement, without charge, as many copies of the Prospectus
relating to such Transfer Restricted Securities (including
each preliminary prospectus) and
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any amendment or supplement thereto as such Notice Holder may
reasonably request; and the Company hereby consents (except
during such periods that a Suspension Notice is outstanding
and has not been revoked) to the use of such Prospectus or
each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Transfer
Restricted Securities covered by such Prospectus or any
amendment or supplement thereto in the manner set forth
therein.
(xi) Cooperate with the Note Holders to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends (unless required by applicable
securities laws); and enable such Transfer Restricted
Securities to be in such denominations and registered in such
names as the Holders may request at least 2 Business Days
before any sale of Transfer Restricted Securities.
(xii) Cooperate and assist in any filings required
to be made with the NASD and in the performance of any due
diligence investigation by any underwriter that is required to
be retained in accordance with the rules and regulations of
the NASD.
(xiii) Otherwise use commercially reasonable
efforts to comply with all applicable rules and regulations of
the Commission and all reporting requirements under the rules
and regulations of the Exchange Act.
(xiv) Cause all Common Stock covered by the Shelf
Registration Statement to be listed or quoted, as the case may
be, on each securities exchange or automated quotation system
on which Common Stock is then listed or quoted.
(b) Upon (A) the issuance by the Commission of a stop
order suspending the effectiveness of the Shelf Registration Statement
or the initiation of proceedings with respect to the Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any Material Event as a
result of which the Shelf 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 any 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, or (C) the occurrence or existence of any corporate
development that, in the discretion of the Company, makes it
appropriate to suspend the availability of the Shelf Registration
Statement and the related Prospectus, the Company will (i) in the case
of clause (B) above, subject to the third sentence of this provision,
as promptly as practicable prepare and file a post-effective amendment
to such Shelf Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file
any other required document that would be incorporated by reference
into such Shelf Registration Statement and Prospectus so that such
Shelf Registration Statement does 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
12
the statements therein not misleading, and such Prospectus does 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 Transfer Restricted Securities being sold thereunder, and, in the
case of a post-effective amendment to the Shelf Registration Statement,
subject to the third sentence of this provision, use commercially
reasonable efforts to cause it to be declared effective as promptly as
is practicable, and (ii) give notice to the Notice Holders that the
availability of the Shelf Registration Statement is suspended (a
"SUSPENSION NOTICE"). Upon receipt of any Suspension Notice, each
Notice Holder agrees not to sell any Transfer Restricted Securities
pursuant to the Shelf Registration Statement or Prospectus until such
Notice Holder's receipt of copies of the supplemented or amended
Prospectus provided for in clause (i) above, or until it is advised in
writing by the Company 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.
The Company will use commercially reasonable efforts to ensure that the
use of the Prospectus may be resumed (x) in the case of clause (A)
above, as promptly as practicable, (y) in the case of clause (B) above,
as soon as, in the sole judgment of the Company, public disclosure of
such Material Event would not be prejudicial to or contrary to the
interests of the Company or, if necessary to avoid unreasonable burden
or expense, as soon as practicable thereafter and (z) in the case of
clause (C) above, as soon as, in the discretion of the Company, such
suspension is no longer appropriate; provided that the period during
which the availability of the Shelf Registration Statement and any
Prospectus is suspended (the "SUSPENSION PERIOD"), without the Company
incurring any obligation to pay Additional Amounts pursuant to Section
2(e), shall not exceed 45 days in any three month period and 120 days
in the aggregate in any twelve month period.
(c) Each Holder of Transfer Restricted Securities agrees
that upon receipt of any Suspension Notice from the Company, such
Holder shall forthwith discontinue (and cause any placement or sales
agent or underwriters acting on their behalf to discontinue) the
disposition of Transfer Restricted Securities pursuant to the
registration statement applicable to such Transfer Restricted
Securities until such Holder (i) shall have received copies of such
amended or supplemented Prospectus and, if so directed by the Company,
such Holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Transfer Restricted
Securities at the time of receipt of such notice or (ii) shall have
received notice from the Company that the disposition of Transfer
Restricted Securities pursuant to the Shelf Registration may continue.
(d) The Company may require each Holder of Transfer
Restricted Securities as to which any registration pursuant to Section
2(a) is being effected to furnish to the Company such information
regarding such Holder and such Holder's intended method of distribution
of such Transfer Restricted Securities as the Company may from time to
time reasonably request in writing, but only to the extent that such
information is required in order to comply with the Securities Act.
Each such Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company or of the occurrence of any
event in either case
13
as a result of which any Prospectus relating to such registration
contains or would contain an untrue statement of a material fact
regarding such Holder or such Holder's intended method of disposition
of such Transfer Restricted Securities or omits to state any material
fact regarding such Holder or such Holder's intended method of
disposition of such Transfer Restricted Securities required to be
stated therein or necessary to make the statements therein not
misleading, and promptly to furnish to the Company any additional
information required to correct and update any previously furnished
information or required so that such Prospectus shall not contain, with
respect to such Holder or the disposition of such Transfer Restricted
Securities, 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.
(e) The Company shall comply with all applicable rules
and regulations of the Commission and make generally available to its
securityholders earning statements (which need not be audited)
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of the Shelf
Registration Statement.
(f) The Company shall provide CUSIP numbers for all
Transfer Restricted Securities covered by the Shelf Registration
Statement not later than the effective date of such Shelf Registration
Statement and provide the Trustee for the Notes and the transfer agent
for the Shares with printed certificates for the Transfer Restricted
Securities that are in a form eligible for deposit with The Depository
Trust Company.
(g) The Company shall use commercially reasonable efforts
to provide such information as is required for any filings required to
be made with the National Association of Securities Dealers, Inc.
(h) Until the expiration of two years after the Closing
Date, the Company will not, and will not permit any of its "affiliates"
(as defined in Rule 144) to, resell any of the Securities that have
been reacquired by any of them except pursuant to an effective
registration statement under the Securities Act.
(i) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act not later than the effective date of the
Shelf Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Note Holders
to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and execute and use commercially reasonable efforts to
cause the Trustee thereunder to execute all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner.
14
(j) The Company shall enter into such customary
agreements and take all such other reasonable, necessary and lawful
actions in connection therewith (including those requested by the
Majority Holders of the Transfer Restricted Securities being sold) in
order to expedite or facilitate disposition of such Transfer Restricted
Securities.
4. Holder's Obligations.
Each Holder agrees, by acquisition of the Transfer Restricted
Securities, that no Holder of Transfer Restricted Securities shall be entitled
to sell any of such Transfer Restricted Securities pursuant to the Shelf
Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with a Notice and Questionnaire as required
pursuant to Section 2(d) hereof (including the information required to be
included in such Notice and Questionnaire) and the information set forth in the
next sentence. Each Notice Holder agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such Transfer
Restricted Securities as may be required to be disclosed in the Shelf
Registration Statement under applicable law or pursuant to Commission comments.
Each Holder further agrees not to sell any Transfer Restricted Securities
pursuant to the Shelf Registration Statement without delivering, or causing to
be delivered, a Prospectus to the purchaser thereof and to notify the Company,
within 10 business days of a request by the Company, of the amount of Transfer
Restricted Securities sold pursuant to the Shelf Registration Statement and, in
the absence of a response, the Company may assume that all of the Holder's
Transfer Restricted Securities were so sold.
5. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Agreement, including:
(a) all Commission and any NASD registration and filing
fees and expenses,
(b) all fees and expenses in connection with the
qualification of the Securities for offering and sale under the State
securities and Blue Sky laws referred to in Section 3(a)(v) hereof,
including reasonable fees and disbursements of one counsel for the
placement agent or underwriters, if any, in connection with such
qualifications,
(c) all expenses relating to the preparation, printing,
distribution and reproduction of the Shelf Registration Statement, the
related Prospectus, each amendment or supplement to each of the
foregoing, the certificates representing the Securities and all other
documents relating hereto,
(d) fees and expenses of the Trustee under the Indenture,
any escrow agent or custodian, and of the registrar and transfer agent
for the Shares,
(e) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the
expenses of any opinions or "cold comfort" letters required by or
incident to such performance and compliance),
15
(f) all application and filing fees in connection with
listing (or authorizing for quotation) the Common Stock on a national
securities exchange or automated quotation system pursuant to the
requirements hereof;
(g) reasonable fees, disbursements and expenses of one
counsel for the Holders of Transfer Restricted Securities retained in
connection with any underwritten offering of the Transfer Restricted
Securities pursuant to the Shelf Registration Statement, as selected by
the Company (unless reasonably objected to by the Majority Holders of
the Transfer Restricted Securities being registered, in which case the
Majority Holders shall select such counsel for the Holders, which
counsel shall be reasonably acceptable to the Company) and
(h) and fees, expenses and disbursements of any other
Persons, including special experts, retained by the Company in
connection with such registration, and all internal expenses of the
Company (collectively, the "REGISTRATION EXPENSES").
To the extent that any Registration Expenses are incurred, assumed or
paid by any Holder of Transfer Restricted Securities or any placement agent
therefor or underwriter thereof, the Company shall reimburse such Person for the
full amount of the Registration Expenses so incurred, assumed or paid promptly
after receipt of a documented request therefor. Notwithstanding the foregoing,
the Holders of the Transfer Restricted Securities being registered shall pay all
placement agent fees and commissions and underwriting discounts and commissions
attributable to the sale of such Transfer Restricted Securities and the fees and
disbursements of any counsel or other advisors or experts retained by such
Holders (severally or jointly), other than the counsel and experts specifically
referred to above.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Holder covered by the Shelf Registration Statement (including each
Initial Purchaser), its directors, officers, and employees and each
person, if any, who controls any such Holder within the meaning of the
Securities Act or the Exchange Act (each, an "INDEMNIFIED HOLDER"),
against any loss, claim, damage, liability or expense, joint or
several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to resales of
the Transfer Restricted Securities), to which such Indemnified Holder
may become subject, insofar as any such loss, claim, damage, liability
or action arises out of, or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Shelf
Registration Statement as originally filed or in any amendment thereof,
in any Prospectus, or in any amendment or supplement thereto; or (ii)
the omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements
therein, and in the case of any Prospectus in the light of the
circumstances under which they were made, not misleading; and agrees to
reimburse each Indemnified Holder promptly upon demand for any legal or
other expenses reasonably incurred by any Indemnified Holder in
connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or
expense arises
16
out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Holder (or its related Indemnified Holder) specifically
for use therein; and provided, further, however, that with respect to
any untrue statement or omission or alleged untrue statement or
omission made in any Prospectus (excluding the correcting amendment or
supplement thereto), the indemnity agreement contained in this Section
6(a) shall not inure to the benefit of any Indemnified Holder from whom
the person asserting any such losses, claims, damages or liabilities
received the Transfer Restricted Securities concerned, to the extent
that a Prospectus relating to such Transfer Restricted Securities was
required to be delivered by such holder under the Securities Act in
connection with such purchase and any such loss, claim, damages or
liability of such holder results from the fact that there was not sent
or given to such person, at or prior to the written confirmation of the
sale of such Transfer Restricted Securities to such person, a copy of a
subsequent amended or supplemented Prospectus correcting such untrue
statement or omission or alleged untrue statement or omission if the
Company had furnished copies thereof to such Indemnified Holder prior
to the required time of delivery of such Prospectus. The foregoing
indemnity agreement is in addition to any liability that the Company
may otherwise have.
(b) Each Holder, severally and not jointly, agrees to
indemnify and hold harmless the Company, its directors, officers and
employees and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act to the same extent as
the foregoing indemnity from the Company to each such Holder, but only
with reference to written information relating to such Holder furnished
to the Company by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement set forth in this Section shall be in addition to
any liabilities that any such Holder may otherwise have. In no event
shall any Holder, its directors, officers or any person who controls
such Holder be liable or responsible for any amount in excess of the
amount by which the total amount received by such Holder with respect
to its sale of Transfer Restricted Securities pursuant to a Shelf
Registration Statement exceeds the amount of any damages that such
Holder, its directors, officers or any person who controls such Holder
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under this Section 6, notify
the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have under this Section 6 except to the extent it has been materially
prejudiced by such failure and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this
Section 6. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the
17
defense thereof with counsel satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under
this Section 6 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Holders
shall have the right to employ a single counsel to represent jointly
the Holders and their officers, employees and controlling persons who
may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Holders against the Company under
this Section 6 if the Holders seeking indemnification shall have been
advised by legal counsel that there may be one or more legal defenses
available to such Holders and their respective officers, employees and
controlling persons that are different from or additional to those
available to the Company, and in that event, the fees and expenses of
such separate counsel shall be paid by the Company. No indemnifying
party shall:
(i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably
withheld) settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such
claim or action), unless such settlement, compromise or
consent includes (x) an unconditional release of each
indemnified party from all liability arising out of such
claim, action, suit or proceeding and (y) 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, or
(ii) be liable for any settlement of any such
action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and
against any loss of liability by reason of such settlement or
judgment.
(d) 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 Section 6(c) hereof, 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 (A) 60 days after receipt by such indemnifying party of the
aforesaid request and (B) 30 days after the receipt by such
indemnifying party of a notice of the proposed settlement and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 6
shall for any reason be unavailable or insufficient to hold harmless an
indemnified party under Section 6(a) or 6(b) in respect of any loss,
claim, damage or liability (or action in respect thereof) referred to
therein, each indemnifying party shall, in lieu of indemnifying such
18
indemnified party, have a joint and several obligation to contribute to
the amount paid or payable by such indemnified party as a result of
such loss, claim, damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to
reflect the relative benefits received by the Company from the
offering and sale of the Transfer Restricted Securities on the
one hand and a Holder with respect to the sale by such Holder
of the Transfer Restricted Securities on the other, or
(ii) if the allocation provided by Section
(6)(d)(i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in Section 6(d)(i) but also the relative
fault of the Company on the one hand and the Holders on the
other in connection with the statements or omissions or
alleged statements or alleged omissions that resulted in such
loss, claim, damage or liability (or action in respect
thereof), as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand
and a Holder on the other with respect to such offering and such sale
shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Notes purchased under the Purchase Agreement
(before deducting expenses) received by the Company, on the one hand,
bear to the total proceeds received by such Holder with respect to its
sale of Transfer Restricted Securities on the other. The relative fault
of the parties shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Holders on the other,
the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and each Holder agree that it would not be just
and equitable if the amount of contribution pursuant to this Section
6(d) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to in the first sentence of this paragraph (d).
The amount paid or payable by an indemnified party as a result
of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 6 shall be deemed to include, for
purposes of this Section 6, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 6, no Holder
shall be required to contribute any amount in excess of the amount by
which the total price at which the Transfer Restricted Securities
purchased by it were resold exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of any 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
Person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 6, each person who controls a Holder
19
within the meaning of either the Securities Act or the Exchange Act
shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, each officer and each director of
the Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this
paragraph (e).
(f) The provisions of this Section 6 shall remain in full
force and effect, regardless of any investigation made by or on behalf
of any Holder or the Company or any of the indemnified persons referred
to in Section 6 hereof, and will survive the sale by a Holder of
Transfer Restricted Securities.
7. Rule 144.
The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Securities Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
8. Inconsistent Agreements.
The Company has not entered into, and agrees not to enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or that otherwise conflict with the provisions
hereof.
9. Miscellaneous.
(a) Entire Agreement; Amendments. This Agreement and the
other writings referred to herein (including the Indenture) or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties and supersedes all prior agreements and
understandings among the parties with respect to its subject matter.
This Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively) only by a written instrument
duly executed by the Company and the Majority Holders of the Transfer
Restricted Securities at the time outstanding.
(b) Notices. All notices, requests, claims, demands,
waivers and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, if
delivered personally or by courier, or five days after being deposited
in the mail (registered or certified mail, postage prepaid, return
receipt requested) as follows:
20
(i) If to the Company, to it at 00000 Xxxxxxxxxx
Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx, 00000, Attention: General
Counsel; with a copy to (which copy shall not constitute
notice): Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 X. Xxxxx Xxxxxx, Xxx
Xxxxxxx, XX 00000, Facsimile: (000) 000-0000, Attention: Xxxx
Xxxxxx, Esq.;
(ii) If to the Initial Purchasers, to the address
set forth in the Purchase Agreement; and
(iii) If to a Holder, to the address of such
Holder set forth in the security register, the Notice and
Questionnaire or other records of the Company,
or to such other address as the Company, the Initial Purchasers or any
such Holder may have furnished to the other parties in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(c) Remedies. Nothing shall preclude a Notice Holder or
Holder of Transfer Restricted Securities from pursuing or obtaining
specific performance or other equitable relief with respect to this
Agreement.
(d) Actions Affecting Transfer Restricted Securities. The
Company shall not, directly or indirectly, take any action with respect
to the Transfer Restricted Securities as a class that would adversely
affect the ability of the Holders of Transfer Restricted Securities to
include such Transfer Restricted Securities in a registration
undertaken pursuant to this Agreement.
(e) Successors. This Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the
respective successors and assigns of the parties hereto. In the event
that any transferee of any Holder of Transfer Restricted Securities
shall acquire Transfer Restricted Securities, in any manner, whether by
gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing or action of any kind, be deemed a
party hereto for all purposes and such Transfer Restricted Securities
shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such transferee
shall be entitled to receive the benefits of, and be conclusively
deemed to have agreed to be bound by and to perform, all of the
applicable terms and provisions of this Agreement.
(f) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results
thereof) made by or on behalf of any Holder of Transfer Restricted
Securities, any director, officer or partner of such Holder, any agent
or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery
of and payment for the Transfer Restricted Securities pursuant to the
Purchase Agreement and the transfer and registration of Transfer
Restricted Securities by such Holder.
(g) Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
21
NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS
THEREOF.
(h) Headings. The descriptive headings of the several
Sections and paragraphs of this Agreement are inserted for convenience
only, do not constitute a part of this Agreement and shall not affect
in any way the meaning or interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed by the
parties in counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
(j) Severability. In the event that any one of more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(k) Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of Securities
is required hereunder, Securities held by the Company or its Affiliates
(other than subsequent Holders of Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(l) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein and in the Purchase
Agreement with respect to the registration rights granted by the
Company with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
22
Agreed to and accepted as of the date referred to above.
APRIA HEALTHCARE GROUP INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
BANC OF AMERICA SECURITIES LLC
Acting on behalf of itself and as a representative of
the Initial Purchasers
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Director
X.X. XXXXXX SECURITIES INC.
Acting on behalf of itself and as a representative of
the Initial Purchasers
By: /s/ Xxxxx XxXxxxxxxx
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Name: Xxxxx XxXxxxxxxx
Title: Vice President
XXXXXX XXXXXXX & CO. INCORPORATED
Acting on behalf of itself and as a representative of
the Initial Purchasers
By: /s/ Xxxxx X. Xxxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxxx
Title: Executive Director