EXHIBIT 4.3
SFBC INTERNATIONAL, INC.
REGISTRATION RIGHTS AGREEMENT
August 11, 2004
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made
and entered into as of August 11, 2004, by and among SFBC International, Inc. a
Delaware corporation (the "COMPANY"), and UBS Securities LLC (the "INITIAL
PURCHASER") pursuant to that certain Purchase Agreement, dated August 6, 2004
(the "PURCHASE AGREEMENT"), between the Company and the Initial Purchaser.
In order to induce the Initial Purchaser 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. The terms "herein," "hereof,"
"hereto," "hereinafter" and similar terms, as used in this Agreement, shall in
each case refer to this Agreement as a whole and not to any particular section,
paragraph, sentence or other subdivision of this Agreement.
The Company agrees with the Initial Purchaser (i) for their
benefit as Initial Purchaser and (ii) for the benefit of the beneficial owners
(including the Initial Purchaser) from time to time of the Covered Securities
(as defined herein) (each of the foregoing a "HOLDER" and, together, the
"HOLDERS"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
(a) "ADDITIONAL FILING DEADLINE DATE" has the meaning set
forth in Section 2(e) hereof.
(b) "ADDITIONAL INTEREST" has the meaning set forth in Section
2(e) hereof.
(c) "ADDITIONAL INTEREST ACCRUAL PERIOD" has the meaning set
forth in Section 2(e) hereof.
(d) "ADDITIONAL INTEREST AMOUNT" has the meaning set forth in
Section 2(e) hereof.
(e) "ADDITIONAL INTEREST PAYMENT DATE" means each August 15
and February 15 of each year.
(f) "AFFILIATE" means, with respect to any specified person,
an "affiliate," as defined in Rule 144, of such person.
(g) "AMENDMENT EFFECTIVENESS DEADLINE DATE" has the meaning
set forth in Section 2(d) hereof.
(h) "APPLICABLE CONVERSION PRICE" per share of Common Stock
means, on a given date, one thousand dollars ($1,000) divided by the Conversion
Rate in effect as of such date or, if no Notes are then outstanding, the
Conversion Rate that would be in effect as of such date were Notes then
outstanding.
(i) "BUSINESS DAY" means each day on which the New York Stock
Exchange is open for trading.
(j) "CLAIM" has the meaning set forth in Section 9(o) hereof.
(k) "COMMON STOCK" means the shares of common stock, $0.001
par value per share, of the Company and any other shares of capital stock as may
constitute "Common Stock" for purposes of the Indenture, including the
Underlying Common Stock.
(l) "CONVERSION RATE" has the meaning ascribed to it in the
Indenture.
(m) "COVERED SECURITY" has the meaning set forth in Section
1(ss) hereof.
(n) "EFFECTIVENESS DEADLINE DATE" has the meaning set forth in
Section 2(a) hereof.
(o) "EFFECTIVENESS PERIOD" means a period (subject to
extension pursuant to Section 3(i) hereof) that terminates on the earliest of:
(i) the date when there are no Registrable Securities outstanding; (ii) the
first date when all Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant thereto; (iii) the date when all Registrable
Securities held by non-affiliates are eligible to be sold pursuant to Rule
144(k) under the Securities Act; and (iv) two years after the Issue Date.
(p) "EVENT" has the meaning set forth in Section 2(e) hereof.
(q) "EVENT DATE" has the meaning set forth in Section 2(e)
hereof.
(r) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC promulgated thereunder.
(s) "FILING DEADLINE DATE" has the meaning set forth in
Section 2(a) hereof.
(t) "FORM S-1" means Form S-1 under the Securities Act.
(u) "FORM S-3" means Form S-3 under the Securities Act.
(v) "FUNDAMENTAL CHANGE REPURCHASE DATE" has the meaning set
forth in the Indenture.
(w) "HOLDER" has the meaning set forth in the preamble hereto.
(x) "HOLDER INFORMATION" has the meaning set forth in Section
6(b) hereof.
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(y) "INDEMNIFIED PARTY" has the meaning set forth in Section
6(c) hereof.
(z) "INDEMNIFYING PARTY" has the meaning set forth in Section
6(c) hereof.
(aa) "INDENTURE" means the Indenture, dated as of August 11,
2004, between the Company and the Trustee, pursuant to which the Notes are being
issued.
(bb) "INITIAL PURCHASER" has the meaning set forth in the
preamble hereto.
(cc) "INITIAL SHELF REGISTRATION STATEMENT" has the meaning
set forth in Section 2(a) hereof.
(dd) "ISSUE DATE" means August 11, 2004.
(ee) "MANAGING UNDERWRITERS" has the meaning set forth in
Section 8(a) hereof.
(ff) "MATERIAL EVENT" has the meaning set forth in Section
3(i) hereof.
(gg) "NASD RULES" has the meaning set forth in Section 3(s)
hereof.
(hh) "NOTES" means the 2.25% convertible senior notes due 2024
of the Company to be purchased pursuant to the Purchase Agreement.
(ii) "NOTICE AND QUESTIONNAIRE" means a written questionnaire
containing substantially the information called for by the "Selling
Securityholder Notice and Questionnaire" attached as Annex A to the Offering
Memorandum of the Company, dated August 6, 2004, relating to the Notes.
(jj) "NOTICE HOLDER" means, on a given date, any Holder that
has delivered a complete Notice and Questionnaire to the Company on or prior to
such date, provided not all of such Holder's Registrable Securities that have
been registered for resale pursuant to a Notice and Questionnaire have been sold
in accordance with a Shelf Registration Statement.
(kk) "OPTION PURCHASE DATE" has the meaning ascribed to it in
the Indenture.
(ll) "PROCEEDING" has the meaning set forth in Section 6(c)
hereof.
(mm) "PROSPECTUS" means the prospectus included in any Shelf
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 415 under the Securities
Act), 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.
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(nn) "PURCHASE AGREEMENT" has the meaning set forth in the
preamble hereof.
(oo) "RECORD DATE" means, (i) February 1, with respect to an
Additional Interest Payment Date that occurs on February 15 and (ii) August 1,
with respect to an Additional Interest Payment Date that occurs on August 15.
(pp) "RECORD HOLDER" means, with respect to an Additional
Interest Payment Date relating to a Registrable Security for which any
Additional Interest Amount has accrued, a Notice Holder that was the holder of
record of such Registrable Security at the close of business on the Record Date
relating to such Additional Interest Payment Date.
(qq) "REDEMPTION" has the meaning ascribed to it in the
Indenture.
(rr) "REDEMPTION DATE" has the meaning ascribed to it in the
Indenture.
(ss) "REGISTRABLE SECURITIES" means the Notes, until such
Notes have been converted into the Underlying Common Stock, and, at all times,
the Underlying Common Stock and any securities into or for which such Underlying
Common Stock has been converted or exchanged, and any security issued with
respect thereto upon any stock dividend, split or similar event (each of the
foregoing, a "COVERED SECURITY") until, in the case of any such security, the
earliest of:
(i) the date on which such security has been
effectively registered under the Securities Act and disposed
of in accordance with the Registration Statement relating
thereto;
(ii) the date on which such security may be resold
without restriction pursuant to Rule 144(k) under the
Securities Act or any successor provision thereto;
(iii) the date on which such security has been
publicly sold pursuant to Rule 144 or any successor provision
thereto; or
(iv) the date on which such security ceases to be
outstanding.
(tt) "REGISTRATION EXPENSES" has the meaning set forth in
Section 5 hereof.
(uu) "REGISTRATION STATEMENT" means any registration
statement, under the Securities Act, of the Company that covers any of the
Registrable Securities pursuant to this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all materials incorporated by
reference or explicitly deemed to be incorporated by reference in such
registration statement, Prospectus, amendment or supplement.
(vv) "REPURCHASE AT HOLDER'S OPTION" has the meaning ascribed
to it in the Indenture.
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(ww) "REPURCHASE DATE" has the meaning ascribed to it in the
Indenture.
(xx) "REPURCHASE UPON FUNDAMENTAL CHANGE" has the meaning
ascribed to it in the Indenture.
(yy) "RULE 144" means 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.
(zz) "RULE 144A" means 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.
(aaa) "SEC" means the Securities and Exchange Commission.
(bbb) "SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the SEC thereunder.
(ccc) "SHELF REGISTRATION STATEMENT" means the Initial Shelf
Registration Statement and any Subsequent Shelf Registration Statement.
(ddd) "SUBSEQUENT SHELF REGISTRATION STATEMENT" has the
meaning set forth in Section 2(b) hereof.
(eee) "SUBSEQUENT SHELF REGISTRATION STATEMENT EFFECTIVENESS
DEADLINE DATE" has the meaning set forth in Section 2(d) hereof.
(fff) "SUSPENSION NOTICE" has the meaning set forth in Section
3(i) hereof.
(ggg) "SUSPENSION PERIOD" has the meaning set forth in Section
3(i) hereof.
(hhh) "TIA" means the Trust Indenture Act of 1939, as amended.
(iii) "TRUSTEE" means Wachovia Bank, National Association, the
trustee under the Indenture.
(jjj) "UNDERLYING COMMON STOCK" means the Common Stock into
which the Notes are convertible or issued upon any such conversion.
2. SHELF REGISTRATION.
(a) The Company shall prepare and file, or cause to be
prepared and filed, with the SEC, as soon as practicable but in any event by the
date (the "FILING DEADLINE DATE") that is ninety (90) days after the Issue Date,
a Registration Statement (the "INITIAL SHELF REGISTRATION STATEMENT") for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 under
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the Securities Act registering the resale from time to time by Holders thereof
of all of the Registrable Securities (or, if registration of Registrable
Securities not held by Notice Holders is not permitted by the rules and
regulations of the SEC, then registering the resale from time to time by Notice
Holders of their Registrable Securities). The Initial Shelf Registration
Statement shall be on Form S-1 or Form S-3 or another appropriate form and shall
provide for the registration of such Registrable Securities for resale by such
Holders in accordance with any reasonable method of distribution elected by the
Holders (provided, however, that in the case of any proposed underwritten
offering of Registrable Securities, selection by Holders of the Managing
Underwriters shall be subject to the Company's prior written consent, which
consent shall not be unreasonably withheld). The Company shall use its
reasonable best efforts to (i) cause the Initial Shelf Registration Statement to
become effective under the Securities Act as promptly as practicable but in any
event by the date (the "EFFECTIVENESS DEADLINE DATE") that is one hundred eighty
(180) days after the Issue Date and (ii) keep the Initial Shelf Registration
Statement (or any Subsequent Shelf Registration Statement) continuously
effective under the Securities Act until the expiration of the Effectiveness
Period (except as permitted by Section 3(i)). At the time the Initial Shelf
Registration Statement becomes effective under the Securities Act, each Holder
that became a Notice Holder prior to the date that is five (5) Business Days
prior to such time of effectiveness shall be named as a selling securityholder
in the Initial Shelf Registration Statement and the related Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to purchasers of
Registrable Securities in accordance with applicable law.
(b) If any Shelf Registration Statement ceases to be effective
under the Securities Act for any reason at any time during the Effectiveness
Period, the Company shall use its reasonable best efforts to promptly cause such
Shelf Registration Statement to become effective under the Securities Act
(including obtaining the prompt withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement), and in any event shall,
within thirty (30) days of such cessation of effectiveness, (i) amend such Shelf
Registration Statement in a manner reasonably expected to obtain the withdrawal
of any order suspending the effectiveness of such Shelf Registration Statement
or (ii) file an additional Registration Statement (a "SUBSEQUENT SHELF
REGISTRATION STATEMENT") for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act registering the resale from
time to time by Holders thereof of all securities that are Registrable
Securities as of the time of such filing (or, if registration of Registrable
Securities not held by Notice Holders is not permitted by the rules and
regulations of the SEC, then registering the resale from time to time by Notice
Holders of their securities that are Registrable Securities as of the time of
such filing). If a Subsequent Shelf Registration Statement is filed, the Company
shall use its reasonable best efforts to (A) cause such Subsequent Shelf
Registration Statement to become effective under the Securities Act as promptly
as practicable after such filing, but in no event later than the Subsequent
Shelf Registration Statement Effectiveness Deadline Date and (B) keep such
Subsequent Shelf Registration Statement (or another Subsequent Shelf
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Registration Statement) continuously effective until the end of the
Effectiveness Period (except as permitted by Section 3(i)). Any such Subsequent
Shelf Registration Statement shall be on Form S-1 or Form S-3 or another
appropriate form and shall provide for the registration of such Registrable
Securities for resale by such Holders in accordance with any reasonable method
of distribution elected by the Holders (provided, however, that in the case of
any proposed underwritten offering of Registrable Securities, selection by
Holders of the Managing Underwriters shall be subject to the Company's prior
written consent, which consent shall not be unreasonably withheld).
(c) The Company shall supplement and amend any 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 Purchaser or by the Trustee on behalf of the Holders of
the Registrable Securities covered by such Shelf Registration Statement.
(d)
(i) Each Holder of Registrable Securities agrees
that, if such Holder wishes to sell Registrable Securities
pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section
2(d) and Section 3(i). Each Holder of Registrable Securities
wishing to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus agrees to
deliver a completed and executed Notice and Questionnaire to
the Company prior to any attempted or actual distribution of
Registrable Securities under a Shelf Registration Statement.
If a Holder becomes a Notice Holder on or after the date the
Initial Shelf Registration Statement becomes effective under
the Securities Act, the Company shall, as promptly as
practicable after the date such Holder became a Notice Holder,
and in any event, subject to clauses (A) and (B) below, within
the later of (x) five (5) Business Days after such date or (y)
five (5) Business Days after the expiration of any Suspension
Period that either (I) is in effect when such Holder became a
Notice Holder or (II) is put into effect within five (5)
Business Days after the date such Holder became a Notice
Holder,
(A) if required by applicable law, file with
the SEC a supplement to the related Prospectus or a
post-effective amendment to the Shelf Registration
Statement or file a Subsequent Shelf Registration
Statement and any necessary supplement or amendment
to any document incorporated therein by reference and
file any other required document with the SEC so that
such Notice Holder is named as a selling
securityholder in a Shelf Registration Statement and
the related Prospectus in such a manner as to permit
such Notice Holder to deliver a Prospectus to
purchasers of the Registrable Securities in
accordance with applicable law; PROVIDED, however,
that, (i) the Company will not be required to file
more than one (1) prospectus supplement in any thirty
(30) day period and (ii) if a post-effective
amendment or a Subsequent Shelf Registration
Statement is required by the rules and regulations of
the SEC in order to permit resales by such Notice
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Holder, the Company shall not be required to file
more than one (1) post-effective amendment or
Subsequent Shelf Registration Statement for such
purpose in any forty-five (45) day period;
(B) if the Company shall have filed a
post-effective amendment to the Shelf Registration
Statement or filed a Subsequent Shelf Registration
Statement, the Company shall use its reasonable best
efforts to cause such post-effective amendment or
Subsequent Shelf Registration Statement, as the case
may be, to become effective under the Securities Act
as promptly as practicable, but in any event by the
date (the "AMENDMENT EFFECTIVENESS DEADLINE DATE," in
the case of a post-effective amendment, and the
"SUBSEQUENT SHELF REGISTRATION STATEMENT
EFFECTIVENESS DEADLINE DATE," in the case of a
Subsequent Shelf Registration Statement) that is
sixty (60) days after the date such post-effective
amendment or Subsequent Shelf Registration Statement,
as the case may be, is required by this Section 2(d)
to be filed with the SEC;
(C) the Company shall provide such Notice
Holder a reasonable number of copies of any documents
filed pursuant to clause (A) above;
(D) the Company shall notify such Notice
Holder as promptly as practicable after the
effectiveness under the Securities Act of any
post-effective amendment or Subsequent Shelf
Registration Statement filed pursuant to clause (A)
above;
(E) if a Holder becomes a Notice Holder
during a Suspension Period, or a Suspension Period is
put into effect within five (5) Business Days after
the date such Holder became a Notice Holder, the
Company shall so inform such Notice Holder and shall
take the actions set forth in clauses (A), (B), (C)
and (D) above within five (5) Business Days after
expiration of such Suspension Period in accordance
with Section 3(i); and
(F) if, under applicable law, the Company
has more than one option as to the type or manner of
making any such filing, the Company shall make the
required filing or filings in the manner or of a type
that is reasonably expected to result in the earliest
availability of a Prospectus for effecting resales of
Registrable Securities.
(ii) 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 shall be named as a selling securityholder in a Shelf
Registration Statement or related Prospectus in accordance
with the requirements of this Section 2(d) or Section 2(a), as
applicable.
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(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 Statement has not
been filed with the SEC on or prior to the Filing Deadline
Date;
(ii) the Initial Shelf Registration Statement has not
become effective under the Securities Act on or prior to the
Effectiveness Deadline Date;
(iii) either a supplement to a Prospectus, a
post-effective amendment or a Subsequent Shelf Registration
Statement is required to be filed with the SEC and fails to be
filed with the SEC within the prescribed period and in the
manner set forth in Section 2(d) (the date such filing is
required to be made being an "ADDITIONAL FILING DEADLINE
DATE") or, in the case of a post-effective amendment or a
Subsequent Shelf Registration Statement, such post-effective
amendment or Subsequent Registration Statement does not become
effective under the Securities Act by the Amendment
Effectiveness Deadline Date or the Subsequent Shelf
Registration Statement Effectiveness Deadline Date, as the
case may be;
(iv) the Initial Shelf Registration Statement or any
Subsequent Registration Statement is filed with the SEC and
becomes effective under the Securities Act but shall
thereafter cease to be effective (without being succeeded
immediately by a new Registration Statement that is filed and
immediately becomes effective under the Securities Act) or
usable for the offer and sale of Registrable Securities in the
manner contemplated by this Agreement for a period of time
(including any Suspension Period) which shall exceed thirty
(30) days in the aggregate in any three (3) month period or
sixty (60) days in the aggregate in any twelve (12) month
period; or
(v) any Registration Statement or amendment thereto,
at the time it becomes effective under the Securities Act, or
any Prospectus relating thereto, at the time it is filed with
the SEC or, if later, at the time the Registration Statement
to which such Prospectus relates becomes effective under the
Securities Act, shall fail to name each Notice Holder as a
selling securityholder in such a manner as to permit such
Notice Holder to sell its Registrable Securities pursuant to
such Registration Statement and Prospectus in accordance with
applicable law, which Notice Holder was entitled, pursuant to
the terms of this Agreement, to be so named (it being
understood that, without limitation, naming such Notice Holder
in a manner that permits such Notice Holder to sell only a
portion of such Notice Holder's Registrable Securities listed
in such Notice Holder's Notice and Questionnaire shall be
deemed to be an "Event" (as defined below) for purposes of
this clause (v)).
Each of the events of a type described in any of the foregoing clauses
(i) through (v) are individually referred to herein as an "EVENT," and
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(V) the Filing Deadline Date, in the case of clause
(i) above,
(W) the Effectiveness Deadline Date, in the case of
clause (ii) above,
(X) the Additional Filing Deadline Date, the
Amendment Effectiveness Deadline Date or the Subsequent Shelf
Registration Statement Effectiveness Deadline Date, as the
case may be, in the case of clause (iii) above,
(Y) the date on which the duration of the
ineffectiveness or unusability of the Shelf Registration
Statement exceeds the number of days permitted by clause (iv)
above, in the case of clause (iv) above, and
(Z) the date the applicable Registration Statement or
amendment thereto shall become effective under the Securities
Act, or the date the applicable Prospectus is filed with the
SEC or, if later, the time the Registration Statement to which
such Prospectus relates becomes effective under the Securities
Act, as the case may be, in the case of clause (v) above,
are each herein referred to as an "EVENT DATE." Events shall be deemed
to continue until the following dates with respect to the respective
types of Events:
(A) the date the Initial Shelf Registration Statement
is filed with the SEC, in the case of an Event of the type
described in clause (i) above;
(B) the date the Initial Shelf Registration Statement
becomes effective under the Securities Act, in the case of an
Event of the type described in clause (ii) above;
(C) the date a supplement to a Prospectus, a
post-effective amendment or a Subsequent Shelf Registration
Statement, whichever is required, is filed with the SEC (in
the case of a supplement) or becomes effective under the
Securities Act (in the case of a post-effective amendment or a
Subsequent Shelf Registration Statement), in the case of an
Event of the type described in clause (iii) above;
(D) the date the Initial Shelf Registration Statement
or the Subsequent Shelf Registration Statement, as the case
may be, becomes effective and usable again, or the date
another Subsequent Shelf Registration Statement is filed with
the SEC pursuant to Section 2(b) and becomes effective, in the
case of an Event of the type described in clause (iv) above;
or
(E) the date a supplement to the Prospectus is filed
with the SEC, or the date a post-effective amendment to the
Registration Statement becomes effective under the Securities
Act, or the date a Subsequent Shelf Registration Statement
becomes effective under the Securities Act, which supplement,
post-effective amendment or Subsequent Shelf Registration
Statement, as the case may be, names as selling
securityholders, in such a manner as to permit them to sell
their Registrable Securities pursuant to the Registration
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Statement and Prospectus supplement in accordance with
applicable law, all Holders entitled as herein provided to be
so named, in the case of an Event of the type described in
clause (v) above.
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have
occurred and are continuing (an "ADDITIONAL INTEREST ACCRUAL PERIOD"),
the Company agrees to pay, as additional interest ("ADDITIONAL
INTEREST") and not as a penalty, an amount (the "ADDITIONAL INTEREST
AMOUNT") at the rate described below, payable periodically on each
Additional Interest Payment Date to Record Holders, to the extent of,
for each such Additional Interest Payment Date, the unpaid Additional
Interest Amount that has accrued to (but excluding) such Additional
Interest Payment Date (or, if the Additional Interest Accrual Period
shall have ended prior to such Additional Interest Payment Date, the
day immediately after the last day of such Additional Interest Accrual
Period); PROVIDED, HOWEVER, that any unpaid Additional Interest Amount
that has accrued with respect to any Note, or portion thereof, called
for Redemption on a Redemption Date, or purchased by the Company
pursuant to a Repurchase at Holder's Option or Repurchase Upon
Fundamental Change on an Option Purchase Date, Repurchase Date or
Fundamental Change Repurchase Date, as the case may be, that is after
the close of business on the Record Date relating to such Additional
Interest Payment Date and before such Additional Interest Payment Date,
shall, in each case, be instead paid, on such Redemption Date, Option
Purchase Date, Repurchase Date or Fundamental Change Repurchase Date,
as the case may be, to the Holder who submitted such Note or portion
thereof for Redemption, Repurchase at Holder's Option or Repurchase
Upon Fundamental Change, as the case may be.
The Additional Interest Amount shall accrue at a rate per annum equal
to one quarter of one percent (0.25%) for the first ninety (90) day
period from the Event Date, and thereafter at a rate per annum of
one-half of one percent (0.50%), of the aggregate principal amount of
the Notes of which such Record Holders were holders of record at the
close of business on the applicable Record Date; PROVIDED, HOWEVER,
that:
(I) unless there shall be a default in the payment of
any Additional Interest Amount, no Additional Interest Amounts
shall accrue as to any Covered Security from and after the
earlier of (x) the date such Covered Security is no longer a
Registrable Security and (y) expiration of the Effectiveness
Period;
(II) only those Notice Holders (or their subsequent
transferees) failing to be named as selling securityholders in
the manner prescribed in Section 2(e)(v) above shall be
entitled to receive any Additional Interest Amounts that have
accrued solely with respect to an Event of the type described
in Section 2(e)(v) above (it being understood that this clause
(II) shall not impair any right of any Notice Holder to
receive Additional Interest Amounts that have accrued with
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respect to an Event other than an Event of the type described
in Section 2(e)(v) above); and
(III) only those Notice Holders (or their subsequent
transferees) whose delivery of a Notice and Questionnaire gave
rise to the obligation of the Company, pursuant to Section
2(d)(i), to file and, if applicable, make effective under the
Securities Act the supplement, post-effective amendment or
Subsequent Shelf Registration Statement referred to in Section
2(e)(iii) above shall be entitled to receive any Additional
Interest Amounts that have accrued solely with respect to an
Event of the type described in Section 2(e)(iii) above (it
being understood that this clause (III) shall not impair any
right of any Notice Holder to receive Additional Interest
Amounts that have accrued with respect to an Event other than
an Event of the type described in Section 2(e)(iii) above).
The rate of accrual of the Additional Interest Amount with respect to
any period shall not exceed the rate provided for in this Section 2(e)
notwithstanding the occurrence of multiple concurrent Events. Following
the cure of all Events requiring the payment by the Company of
Additional Interest Amounts to the Notice Holders pursuant to this
Section, the accrual of Additional Interest Amounts shall cease
(without in any way limiting the effect of any subsequent Event
requiring the payment of Additional Interest Amounts by the Company).
All installments of Additional Interest shall be paid by wire transfer
of immediately available funds to the account specified by the Notice
Holder or, if no such account is specified, by mailing a check to such
Notice Holder's address shown in the register of the registrar for the
Notes or for the Underlying Common Stock, as the case may be.
All of the Company's obligations set forth in this Section 2(e) that
are outstanding with respect to any Registrable Security at the time
such Registrable 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(n)).
The parties hereto agree that the Additional Interest provided for in
this Section 2(e) constitutes a reasonable estimate of the damages that
may be incurred by Holders of Registrable Securities by reason of an
Event, including, without limitation, the failure of a Shelf
Registration Statement to be filed, become effective under the
Securities Act, amended or replaced to include the names of all Notice
Holders or available for effecting resales of Registrable Securities in
accordance with the provisions hereof.
If any Additional Interest Amounts are not paid when due, then, to the
extent permitted by law, such overdue Additional Interest Amounts, if
any, shall bear interest, compounded semi-annually, until paid at the
rate of interest payable with respect to overdue amounts on the Notes
pursuant to Section 2.12 of the Indenture.
(f) The Trustee shall be entitled, on behalf of Holders of
Registrable Securities, to seek any available remedy for the
enforcement of this Agreement, including for the payment of any
12
Additional Interest Amount. Notwithstanding anything to the contrary
contained herein, the sole and exclusive damages payable for a
violation under Section 2 hereof with respect to which Additional
Interest is payable shall be such Additional Interest.
3. REGISTRATION PROCEDURES. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the SEC a Shelf Registration
Statement or Shelf Registration Statements on Form S-1 or Form S-3 or
any other 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
its reasonable best efforts to cause each such Shelf Registration
Statement to become effective under the Securities Act and remain
effective under the Securities Act as provided herein; PROVIDED, that,
before filing any Shelf Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, the Company shall
furnish to the Initial Purchaser and counsel for the Initial Purchaser
(or, if applicable, one separate counsel for the Holders) copies of all
such documents proposed to be filed and reflect in each such document
when so filed with the SEC such comments as the Initial Purchaser or
such counsel reasonably shall propose within three (3) Business Days of
the delivery of such copies to the Initial Purchaser and such counsel.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement as may
be necessary to keep such Shelf Registration Statement or Subsequent
Shelf Registration Statement continuously effective until the
expiration of the Effectiveness Period (except as permitted by Section
3(i)); cause the related Prospectus to be supplemented by any required
Prospectus supplement and, as so supplemented, to be filed with the SEC
pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and use its reasonable best efforts to comply with
the provisions of the Securities Act applicable to it with respect to
the disposition of all securities covered by each Shelf Registration
Statement during the Effectiveness 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.
(c) As promptly as practicable, give notice to the Notice
Holders, the Initial Purchaser and counsel for the Initial Purchaser
(or, if applicable, one separate counsel for the Holders):
(i) when any Prospectus, Prospectus supplement, Shelf
Registration Statement or post-effective amendment to a Shelf
Registration Statement has been filed with the SEC and, with
respect to a Shelf Registration Statement or any
post-effective amendment, when the same has become effective
under the Securities Act,
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(ii) of any request, following the effectiveness of a
Shelf Registration Statement under the Securities Act, by the
SEC or any other governmental authority for amendments or
supplements to such Shelf Registration Statement or the
related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other
governmental authority of any stop order suspending the
effectiveness of any Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by the Company or its legal
counsel 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) after the effective date of any Shelf
Registration Statement filed with the SEC pursuant to this
Agreement, of the occurrence of (but not the nature of or
details concerning) a Material Event, and
(vi) of the determination by the Company that a
post-effective amendment to a Shelf Registration Statement or
a Subsequent Shelf Registration Statement will be filed with
the SEC, which notice may, at the discretion of the Company
(or as required pursuant to Section 3(i)), state that it
constitutes a Suspension Notice, in which event the provisions
of Section 3(i) shall apply.
(d) Use its reasonable best efforts to (i) prevent the
issuance of, and, if issued, to obtain the withdrawal of, any order
suspending the effectiveness of a Shelf Registration Statement and (ii)
obtain the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in
any jurisdiction in which they have been qualified for sale, in either
case at the earliest possible moment, and provide prompt notice to each
Notice Holder and the Initial Purchaser, and counsel for the Initial
Purchaser (or, if applicable, one separate counsel for the Holders), of
the withdrawal or lifting of any such order or suspension.
(e) If requested by the Initial Purchaser or any Notice
Holder, as promptly as practicable incorporate in a Prospectus
supplement or a post-effective amendment to a Shelf Registration
Statement such information as the Initial Purchaser, such Notice Holder
or counsel for the Initial Purchaser (or, if applicable, one separate
counsel for the Holders) shall 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,
HOWEVER, that the Company shall not be required to take any actions
under this Section 3(e) that, in the written opinion of counsel for the
Company, are not in compliance with applicable law.
(f) As promptly as practicable, furnish to each Notice Holder,
counsel for the Initial Purchaser, if requested, (or, if applicable,
one separate counsel for the Holders) and the Initial Purchaser,
without charge, at least one (1) conformed copy of each Shelf
14
Registration Statement and each 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 to the Company by such Notice Holder, such counsel
or the Initial Purchaser).
(g) During the Effectiveness Period, deliver to each Notice
Holder, counsel for the Initial Purchaser (or, if applicable, one
separate counsel for the Holders) and the Initial Purchaser, in
connection with any sale of Registrable Securities pursuant to a Shelf
Registration Statement, 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 Notice Holder or the Initial Purchaser 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 and each amendment or supplement thereto by
each Notice Holder, in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities
pursuant to a Shelf Registration Statement, use its reasonable best
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 Registrable 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); use its reasonable best efforts to keep each such
registration or qualification (or exemption therefrom) effective during
the Effectiveness Period in connection with such Notice Holder's offer
and sale of Registrable Securities pursuant to such registration or
qualification (or exemption therefrom); and do any and all other acts
or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities in the manner set
forth in the relevant Shelf Registration Statement and the related
Prospectus; PROVIDED, HOWEVER, that the Company will not be required to
qualify as a foreign corporation, to file a general consent to service
of process (other than in connection with the offering of the
Registrable Securities) or to subject itself to any tax (in excess of
de minimus amount) in any such jurisdiction where it is not now so
qualified or to which it is not now subject;
(i) Upon: (A) the issuance by the SEC of a stop order
suspending the effectiveness of any Shelf Registration Statement or the
initiation of proceedings with respect to any 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 fact 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
necessary in order 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 pending corporate development (a
"MATERIAL EVENT") that, in the reasonable discretion of the Company,
15
makes it appropriate to suspend the availability of any Shelf
Registration Statement and the related Prospectus,
(i) in the case of clause (B) or (C) above, subject
to the next sentence, as promptly as practicable, prepare and
file, if necessary pursuant to applicable law, a
post-effective amendment to such Shelf Registration Statement
or a supplement to such 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 the statements
therein not misleading (it being understood that the Company
may rely on information provided by each Notice Holder with
respect to such Notice Holder), and so that such Prospectus
does not contain any untrue statement of a material fact or
omit to state any material fact necessary in order 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 Shelf Registration Statement, subject to the next sentence,
use its reasonable best efforts to cause it to become
effective under the Securities Act as promptly as practicable,
and
(ii) give notice to the Notice Holders and counsel
for the Initial Purchaser (or, if applicable, one separate
counsel for the Holders) and to the Initial Purchaser that the
availability of the Shelf Registration Statement is suspended
(a "SUSPENSION NOTICE") (and, upon receipt of any Suspension
Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to such Shelf Registration Statement until
such Notice Holder's receipt of copies of the supplemented or
amended Prospectus provided for in clause (i) above or until
such Notice Holder is advised in writing by the Company that
the Prospectus may be used).
The Company will use its reasonable best efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above,
as promptly as is practicable, (y) in the case of clause (B) above, as
soon as, in the reasonable judgment of the Company, the 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 the statements therein not misleading and
the Prospectus does not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and (z) in the case of clause (C) above, as
soon as, in the reasonable discretion of the Company, such suspension
is no longer appropriate. The period during which the availability of
the Shelf Registration Statement and any Prospectus may be suspended
(the "SUSPENSION PERIOD") without the Company incurring any obligation
to pay Additional Interest pursuant to Section 2(e) shall not exceed
thirty (30) days in the aggregate in any three (3) month period or
sixty (60) days in the aggregate in any twelve (12) month period. The
Effectiveness Period shall be extended by the number of days from and
16
including the date of the giving of the Suspension Notice to and
including the date on which the Notice Holder received copies of the
supplemented or amended Prospectus provided in clause (i) above, or the
date on which 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.
(j) Make available for inspection during normal business hours
by representatives for the Notice Holders and any underwriters
participating in any disposition pursuant to any Shelf Registration
Statement and any broker-dealers, attorneys and accountants retained by
such Notice Holders or any such underwriters, all relevant financial
and other records and pertinent corporate documents and properties of
the Company and its subsidiaries, and cause the appropriate officers,
directors and employees of the Company and its subsidiaries to make
available for inspection during normal business hours all relevant
information reasonably requested by such representatives for the Notice
Holders, or any such underwriters, broker-dealers, attorneys or
accountants in connection with such disposition, in each case as is
customary for similar "due diligence" examinations; PROVIDED, HOWEVER,
that such persons shall first agree in writing with the Company that
any information that is reasonably and in good faith designated by the
Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons and shall be
used solely for the purposes of exercising rights under this Agreement,
unless (i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of
governmental or regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of
any Shelf Registration Statement or the use of any Prospectus referred
to in this Agreement) or necessary to defend or prosecute a claim
brought against or by any such persons (E.G., to establish a "due
diligence" defense), (iii) such information becomes generally available
to the public other than as a result of a disclosure or failure to
safeguard by any such person or (iv) such information becomes available
to any such person from a source other than the Company and such source
is not bound by a confidentiality agreement or is not otherwise under a
duty of trust to the Company; PROVIDED FURTHER, that the foregoing
inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Notice Holders and the
other parties entitled thereto by the one counsel, referred to in
Section 5, for the Holders in connection with Shelf Registration
Statements.
(k) Comply with all applicable rules and regulations of the
SEC; and make generally available to its securityholders earnings
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), which statements
shall cover a period of twelve (12) months commencing on the first day
of the first fiscal quarter of the Company commencing after the
effective date of each Shelf Registration Statement (within the meaning
of Rule 158(c) under the Securities Act), and which statements shall be
so made generally available to the Company's securityholders no later
than forty (40) days after the end of the applicable twelve (12) month
17
period if such period ends on or after December 15, 2004 and before
December 15, 2005 (or thirty five (35) days after the end of the
applicable twelve (12) month period if such period ends on or after
December 15, 2005, or, if such earnings statement is filed with the SEC
on Form 10-K under the Exchange Act, sixty (60) days after the end of
the applicable twelve (12) month period).
(l) If the Notes are certificated cooperate with each Notice
Holder to the extent reasonably necessary to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities sold pursuant to a Shelf Registration Statement, which
certificates shall not bear any restrictive legends, and cause such
Registrable Securities to be in such denominations as are permitted by
the Indenture and registered in such names as such Notice Holder may
request in writing at least two (2) Business Days prior to any sale of
such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities
covered by a Shelf Registration Statement not later than the effective
date of the Initial Shelf Registration Statement and provide the
Trustee and the transfer agent for the Common Stock with certificates
for the Registrable Securities that are in a form eligible for deposit
with The Depository Trust Company.
(n) Cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc. by the
Initial Purchaser or Notice Holders.
(o) Upon the filing of the Initial Registration Statement, and
upon the effectiveness under the Securities Act of the Initial
Registration Statement, announce the same, in each case by release to
Reuters Economic Services and Bloomberg Business News.
(p) Take all actions and enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
as are necessary, or reasonably requested by the Holders of a majority
of the Registrable Securities being sold, in order to expedite or
facilitate disposition of such Registrable Securities; and in such
connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration:
(i) the Company shall make such representations and
warranties to the Holders of such Registrable Securities and
the underwriters, if any, in form, substance and scope as
would be customarily made by the Company to underwriters in
similar offerings of securities;
(ii) the Company shall obtain opinions of counsel of
the Company and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed
to the underwriters, if any, covering the matters that would
be customarily covered in opinions requested in sales of
securities or underwritten offerings;
18
(iii) the Company shall obtain "comfort letters" and
updates thereof from the Company's independent certified
public accountants (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial
statements are, or are required to be, included in any Shelf
Registration Statement) addressed to the underwriters, if any,
and the selling Holders of Registrable Securities (to the
extent consistent with Statement on Auditing Standards No. 72
of the American Institute of Certified Public Accounts), such
letters to be in customary form and covering matters of the
type that would customarily be covered in "comfort letters" to
underwriters in connection with similar underwritten
offerings;
(iv) the Company shall, if an underwriting agreement
is entered into, cause any such underwriting agreement to
contain indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 6 hereof with respect to the
underwriters and all other parties to be indemnified pursuant
to said Section; and
(v) the Company shall deliver such documents and
certificates as may be reasonably requested and as are
customarily delivered in similar offerings to the holders of a
majority of the Registrable Securities being sold and to the
Managing Underwriters, if any;
the above to be done at (x) the effectiveness of any Shelf Registration
Statement (and each post-effective amendment thereto) and (y) each
closing under any underwriting or similar agreement as and to the
extent required thereunder.
(q) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Initial Shelf Registration
Statement; and, in connection therewith, cooperate with the Trustee to
effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA
and execute, and use its reasonable best efforts to cause the Trustee
to execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner.
(r) Cause the Underlying Common Stock to be approved for
listing on The Nasdaq National Market.
(s) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or
"participate in a public offering" (within the meaning of the Conduct
Rules (the "NASD RULES") of the National Association of Securities
Dealers, Inc.) thereof, whether as a Holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, the Company will assist
19
such broker-dealer in complying with the requirements of such NASD
Rules, including, without limitation, by: (i) if such NASD Rules,
including NASD Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in NASD Rule 2720) to participate
in the preparation of the Shelf Registration Statement relating to such
Registrable Securities, to exercise usual standards of due diligence in
respect thereof and, if any portion of the offering contemplated by
such Shelf Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield or
price, as the case may be, of such Registrable Securities; (ii)
indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 6 hereof;
and (iii) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the NASD Rules.
4. HOLDER'S OBLIGATIONS. Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a 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
Registrable Securities as the Company may from time to time reasonably request.
Any sale of any Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder 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 or provided by 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 or provided by such Holder or its plan of distribution necessary in
order to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading. Each Holder and the
Initial Purchaser agree to keep confidential and not disclose the receipt of any
Suspension Notice and the contents thereof, except as required by law.
5. REGISTRATION EXPENSES. The Company shall bear all fees and expenses
incurred in connection with the performance by the Company of its obligations
under Section 2 and Section 3 of this Agreement whether or not any of the Shelf
Registration Statements are filed or declared effective under the Securities
Act. Such fees and expenses ("REGISTRATION EXPENSES") shall include, without
limitation, (i) all registration and filing fees and expenses (including,
without limitation, fees and expenses (x) with respect to filings required to be
made by the Company with the National Association of Securities Dealers, Inc.
and (y) of compliance by the Company with federal securities laws and state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of one counsel for the Holders in connection with Blue Sky
qualifications of the Registrable Securities under the laws of such
jurisdictions as the Notice Holders of a majority of the Registrable Securities
being sold pursuant to a Shelf Registration Statement may reasonably designate),
(ii) all printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company), (iii) all duplication and mailing expenses relating
to copies of any Shelf Registration Statement or Prospectus delivered to any
Notice Holders hereunder, (iv) all fees and disbursements of counsel for the
20
Company and the fees and disbursements of one counsel for the Holders in
connection with the Shelf Registration Statement, (v) all fees and disbursements
of the Trustee and its counsel and of the registrar and transfer agent for the
Common Stock and (vi) Securities Act liability insurance obtained by the Company
in its sole discretion. In addition, the Company shall pay the internal expenses
of the Company (including, without limitation, all salaries and expenses of
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the fees and expenses incurred in
connection with the listing by the Company of the Registrable Securities on any
securities exchange or quotation system on which similar securities of the
Company are then listed and the fees and expenses of any person, including,
without limitation, special experts, retained by the Company. Except as
expressly set forth in this Section 5, each Holder shall pay all expenses and
fees relating to such Holder's disposition of Registrable Securities, including
without limitation, all brokerage fees and commissions, all transfer taxes and
fees, and all fees and expenses of any advisors or counsel engaged by the
Holder.
6. INDEMNIFICATION, CONTRIBUTION.
(a) The Company agrees to indemnify, defend and hold harmless
each Initial Purchaser, each Holder, each person (a "CONTROLLING
PERSON"), if any, who controls any Initial Purchaser or Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and the respective officers, directors, partners,
employees, representatives and agents of any Initial Purchaser, the
Holders or any Controlling Person (each, an "INDEMNIFIED PARTY"), from
and against any loss, damage, expense, liability, claim or any actions
in respect thereof (including the reasonable cost of investigation)
which such Indemnified Party may incur under the Securities Act, the
Exchange Act or otherwise, insofar as such loss, damage, expense,
liability, claim or action arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in
any Shelf Registration Statement or Prospectus, including any document
incorporated by reference therein, or in any amendment or supplement
thereto or in any preliminary prospectus, or arises out of or is based
upon any omission or alleged omission to state a material fact required
to be stated in any Shelf Registration Statement or in any amendment or
supplement thereto or necessary to make the statements therein not
misleading, or arises out of or is based upon any omission or alleged
omission to state a material fact necessary in order to make the
statements made in any Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, in the light of the
circumstances under which such statements were made, not misleading,
and the Company shall reimburse, as incurred, the Indemnified Parties
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, damage,
expense, liability, claim or action in respect thereof; PROVIDED,
HOWEVER, that the Company shall not be required to provide any
indemnity pursuant to this Section 6(a) in any such case insofar as any
such loss, damage, expense, liability, claim or action arises out of or
is based upon any untrue statement or omission or alleged untrue
statement or omission of a material fact contained in, or omitted from,
and in conformity with information furnished in writing by or on behalf
of an Initial Purchaser or a Holder to the Company expressly for use
21
in, any Shelf Registration Statement or any Prospectus; PROVIDED
FURTHER that, with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary or final
prospectus relating to a Shelf Registration Statement, the indemnity
agreement contained in this subsection (a) shall not inure to the
benefit of any Holder from whom the person asserting any such losses,
damages, expenses, liabilities, claims or actions purchased such
Registrable Securities, to the extent that a prospectus relating to
such Registrable Securities was required to be delivered by such Holder
under the Securities Act in connection with such purchase and any such
loss, damage, expense, liability, claim or action 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 Registrable
Securities to such person, a copy of the final correct prospectus, if
the Company had previously notified the Holder that such preliminary or
final prospectus should not be used and furnished corrected copies
thereof to such Holder in a timely manner so as to permit timely
delivery by such Holder of a copy of the corrected prospectus at or
prior to written confirmation of sale; PROVIDED FURTHER, that this
indemnity agreement will not apply to any loss, damage, expense,
liability, claim or action arising from an offer or sale, occurring
during a Suspension Period, of Registrable Securities by a Notice
Holder to whom the Company theretofore provided a Suspension Notice in
accordance with Section 3(i); PROVIDED FURTHER, HOWEVER, that this
indemnity agreement will be in addition to any liability which the
Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to
indemnify, defend and hold harmless the Company, its directors,
officers, employees, representatives and agents and any person who
controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each, a "COMPANY INDEMNIFIED
PARTY") from and against any loss, damage, expense, liability, claim or
any actions in respect thereof (including the reasonable cost of
investigation) which such Company Indemnified Party may incur under the
Securities Act, the Exchange Act or otherwise, insofar as such loss,
damage, expense, liability, claim or action (i) arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information (the
"HOLDER INFORMATION") furnished in writing by or on behalf of such
Holder to the Company expressly for use in, any Shelf Registration
Statement or Prospectus, or in any amendment or supplement thereto or
in any preliminary prospectus, (ii) arises out of or is based upon any
omission or alleged omission to state a material fact in connection
with such Holder Information required to be stated in any Shelf
Registration Statement or Prospectus, or in any amendment or supplement
thereto or in any preliminary prospectus, or necessary to make such
Holder Information not misleading, (iii) arises out of or is based upon
a sale of Registrable Securities during a Suspension Period by a Notice
Holder to whom the Company theretofore provided a Suspension Notice in
accordance with Section 3(i), or (iv) arises out of or is based upon a
sale of Registrable Securities by a Notice Holder without delivery of
the most recent applicable Prospectus provided to such Holder by the
Company pursuant to Section 3(g) or Section 2(d), if a prospectus was
required to be delivered by such Holder under the Securities Act in
connection with such sale and the Holder had received copies of the
22
most recent applicable prospectus in a timely manner so as to permit
such delivery; and, subject to the limitation set forth in the
immediately preceding clause, each Holder shall reimburse, as incurred,
the Company for any legal or other expenses reasonably incurred by the
Company or any Company Indemnified Party in connection with
investigating or defending any loss, damage, expense, liability, claim
or action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have to the
Company or any Company Indemnified Party. In no event shall the
liability of any selling Holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds received by
such Holder upon the sale, pursuant to the Shelf Registration
Statement, of the Registrable Securities giving rise to such
indemnification obligation.
(c) If any action, suit or proceeding (each, a "PROCEEDING")
is brought against any person in respect of which indemnity may be
sought pursuant to either Section 6(a) or Section 6(b), such person
(the "INDEMNIFIED Party") shall promptly notify the person against whom
such indemnity may be sought (the "INDEMNIFYING PARTY") in writing of
the institution of such Proceeding and the Indemnifying Party shall
assume the defense of such Proceeding; PROVIDED, HOWEVER, that the
omission to so notify such Indemnifying Party shall not relieve such
Indemnifying Party from any liability which it may have to such
Indemnified Party or otherwise, except to the extent the Indemnifying
Party is materially prejudiced thereby. Such Indemnified Party shall
have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such
Indemnified Party unless the employment of such counsel shall have been
authorized in writing by such Indemnifying Party in connection with the
defense of such Proceeding or such Indemnifying Party shall not have
employed counsel to have charge of the defense of such Proceeding
within thirty (30) days of the receipt of notice thereof or such
Indemnified Party shall have reasonably concluded upon the written
advice of counsel that there may be one or more defenses available to
it that are different from, additional to or in conflict with those
available to such Indemnifying Party (in which case such Indemnifying
Party shall not have the right to direct that portion of the defense of
such Proceeding on behalf of the Indemnified Party, but such
Indemnifying Party may employ counsel and participate in the defense
thereof but the fees and expenses of such counsel shall be at the
expense of such Indemnifying Party), in any of which events such
reasonable fees and expenses shall be borne by such Indemnifying Party
and paid as incurred (it being understood, however, that such
Indemnifying Party shall not be liable for the expenses of more than
one separate counsel in any one Proceeding or series of related
Proceedings together with reasonably necessary local counsel
representing the Indemnified Parties who are parties to such action).
An Indemnifying Party shall not be liable for any settlement of such
Proceeding effected without the written consent of such Indemnifying
Party, but if settled with the written consent of such Indemnifying
Party, such Indemnifying Party agrees to indemnify and hold harmless an
Indemnified Party from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any time
an Indemnified Party shall have requested an Indemnifying Party to
reimburse such Indemnified Party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then such
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 sixty (60) Business Days after
23
receipt by such Indemnifying Party of the aforesaid request, (ii) such
Indemnifying Party shall not have fully reimbursed such Indemnified
Party in accordance with such request prior to the date of such
settlement and (iii) such Indemnified Party shall have given such
Indemnifying Party at least thirty (30) days' prior notice of its
intention to settle. No Indemnifying Party shall, without the prior
written consent of any Indemnified Party, effect any settlement of any
pending or threatened Proceeding in respect of which such 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 and
does not include an admission of fault or culpability or a failure to
act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is
unavailable to an Indemnified Party under Section 6(a) or Section 6(b),
or insufficient to hold such Indemnified Party harmless, in respect of
any losses, damages, expenses, liabilities, claims or actions referred
to therein, then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses,
damages, expenses, liabilities, claims or actions (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and by the Holders or the Initial
Purchaser, on the other hand, from the offering of the Registrable
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and
of the Holders or the Initial Purchaser, on the other hand, in
connection with the statements or omissions which resulted in such
losses, damages, expenses, liabilities, claims or actions, as well as
any other relevant equitable considerations. The relative fault of the
Company, on the one hand, and of the Holders or the Initial Purchaser,
on the other hand, shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission relates to information
supplied by the Company or by the Holders or the Initial Purchaser and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities, claims and actions referred to above shall be
deemed to include any reasonable legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any Proceeding.
(e) The Company, the Holders and the Initial Purchaser agree
that it would not be just and equitable if contribution pursuant to
this Section 6 were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in Section 6(d) above. 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 Registrable Securities giving rise to such contribution obligation
and sold by such Holder were offered to the public exceeds the amount
of any damages which it 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
24
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' respective obligations to contribute
pursuant to this Section 6 are several in proportion to the respective
amount of Registrable Securities they have sold pursuant to a Shelf
Registration Statement, and not joint. 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 the Initial
Purchaser or any person controlling any Holder or Initial Purchaser, or
the Company, or the Company's officers or directors or any person
controlling the Company and (iii) the sale of any Registrable Security
by any Holder.
7. INFORMATION REQUIREMENTS.
(a) The Company covenants that, if at any time before the end
of the Effectiveness Period it is not subject to the reporting
requirements of the Exchange Act, it will cooperate with any Holder of
Registrable Securities and take such further action as any Holder of
Registrable Securities may reasonably request in writing (including,
without limitation, making such 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 limitations of the exemptions
provided by Rule 144, Rule 144A, Regulation S and Regulation D under
the Securities Act and customarily taken in connection with sales
pursuant to such exemptions. Upon the written request of any Holder,
the Company shall deliver to such Holder a written statement as to
whether the Company has complied with the reporting requirements of the
Exchange Act, unless such a statement has been included in the
Company's most recent report filed with the SEC pursuant to Section 13
or Section 15(d) of Exchange Act.
(b) The Company shall file the reports required to be filed by
it under the Exchange Act and shall comply with all other requirements
set forth in the instructions to Form S-3 in order to allow the Company
to be eligible to file registration statements on Form S-3.
8. UNDERWRITTEN REGISTRATIONS.
(a) If any of the Registrable Securities covered by the Shelf
Registration Statement are to be offered and sold in an underwritten
offering, the investment banker or investment bankers and manager or
managers that will administer the offering ("MANAGING UNDERWRITERS")
shall be selected by the holders of a majority of such Registrable
Securities to be included in such offering, subject to the Company's
prior written consent, which consent shall not be unreasonably
withheld.
25
(b) No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's
Registrable Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of
such underwriting arrangements.
9. MISCELLANEOUS.
(a) REMEDIES. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under this
Agreement may result in material irreparable injury to the Initial
Purchaser and the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Initial
Purchaser or Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under this Agreement.
The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
Notwithstanding the foregoing two sentences, this Section 9(a) shall
not apply to the subject matter referred to in and contemplated by
Section 2(e).
(b) NO CONFLICTING AGREEMENTS. The Company is not, as of the
date hereof, a party to, nor shall it, on or after the date of this
Agreement, enter into, any agreement with respect to the Company's
securities that conflicts with the rights granted to the Holders in
this Agreement. The Company represents and warrants that the rights
granted to the Holders hereunder do not in any way conflict with the
rights granted to the holders of the Company's securities under any
other agreements. The Company will not take any action with respect to
the Registrable Securities which would adversely affect the ability of
any of the Holders to include such Registrable Securities in a
registration undertaken pursuant to this Agreement, and after the date
hereof, the Company shall not grant to any of its security holders
(other than the Holders in such capacity) the right to include any of
the Company's securities in any Shelf Registration Statement filed
pursuant to this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of Holders of a majority of the then outstanding
Registrable Securities; PROVIDED, HOWEVER, that, no consent is
necessary from any of the Holders in the event that this Agreement is
amended, modified or supplemented for the purpose of curing any
ambiguity, defect or inconsistency that does not adversely affect the
rights of any Holders. 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 Shelf
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 sold
26
by such Holders pursuant to such Shelf Registration Statement;
PROVIDED, HOWEVER, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence. Each Holder of
Registrable Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall be
bound by any such amendment, modification, supplement, waiver or
consent effected pursuant to this Section 9(c), whether or not any
notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or
is delivered to such Holder.
(d) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, by
telecopier, by courier guaranteeing overnight delivery or by
first-class mail, return receipt requested, and shall be deemed given
(A) when made, if made by hand delivery, (B) upon confirmation, if made
by telecopier, (C) one (1) Business Day after being deposited with such
courier, if made by overnight courier or (D) on the date indicated on
the notice of receipt, if made by first-class mail, to the parties as
follows:
(i) if to a Holder, at the most current address given
by such Holder to the Company in a Notice and Questionnaire or
any amendment thereto;
(ii) if to the Company, to:
SFBC International, Inc.
00000 Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy to (for informational
purposes only):
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx
& Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
and
Xxxxxxx Xxxxxx, P.A.
0000 Xxxx Xxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
27
(iii) if to the Initial Purchaser, to:
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Telecopy No.: (000) 000-0000
with a copy to (for informational purposes
only):
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Telecopy No.: (000) 000-0000
and
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Syndicate Department
Telecopy No.: (000) 000-0000
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.
(e) MAJORITY OF REGISTRABLE SECURITIES. For purposes of
determining what constitutes holders of a majority of Registrable
Securities, as referred to in this Agreement, a majority shall
constitute a majority in aggregate principal amount of Registrable
Securities, treating each relevant holder of shares of Underlying
Common Stock of the Notes as a holder of the aggregate principal amount
of Notes in respect of which such Common Stock was issued.
(f) APPROVAL OF HOLDERS. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its
"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 the Initial Purchaser or 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.
(g) THIRD PARTY BENEFICIARIES. The Holders shall be third
party beneficiaries to the agreements made hereunder between the
Company, on the one hand, and the Initial Purchaser, on the other hand,
and shall have the right to enforce such agreements directly to the
28
extent they may deem such enforcement necessary or advisable to protect
their rights or the rights of Holders hereunder. The Trustee shall be
entitled to the rights granted to it pursuant to this Agreement.
(h) SUCCESSORS AND ASSIGNS. Any person who purchases any
Covered Security from any Initial Purchaser or from any Holder shall be
deemed, for purposes of this Agreement, to be an assignee of such
Initial Purchaser or such Holder, as the case may be. This Agreement
shall inure to the benefit of and be binding upon the respective
successors and assigns of each of the parties hereto and shall inure to
the benefit of and be binding upon each Holder of any Covered Security.
(i) 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.
(j) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(k) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
(l) 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 being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(m) ENTIRE AGREEMENT. This Agreement is intended by the
parties hereto 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 the Company
with respect to the Registrable Securities. Except as provided in the
Purchase 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 the Company with respect
to the Registrable Securities. This Agreement supersedes all prior
agreements and undertakings among the parties with respect to such
registration rights. No party hereto shall have any rights, duties or
obligations other than those specifically set forth in this Agreement.
29
(n) 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 Section 4,
Section 5 or Section 6 hereof and the obligations to make payments of
and provide for Additional Interest under Section 2(e) hereof to the
extent such Additional Interest accrues prior to the end of the
Effectiveness Period and to the extent any overdue Additional Interest
accrues in accordance with the last paragraph of such Section 2(e),
each of which shall remain in effect in accordance with its terms.
(o) SUBMISSION TO JURISDICTION. Except as set forth below, no
claim, counterclaim or dispute of any kind or nature whatsoever arising
out of or in any way relating to this Agreement ("CLAIM") may be
commenced, prosecuted or continued in any court other than the courts
of the State of New York located in the City and County of New York or
in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of
such matters, and the Company hereby consents to the jurisdiction of
such courts and personal service with respect thereto. The Company
hereby consents to personal jurisdiction, service and venue in any
court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against any Initial Purchaser.
THE COMPANY HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) IN ANY WAY ARISING OUT
OF OR RELATING TO THIS AGREEMENT. The Company agrees that a final
judgment in any such Proceeding brought in any such court shall be
conclusive and binding upon the Company and may be enforced in any
other courts in the jurisdiction of which the Company is or may be
subject, by suit upon such judgment.
30
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Very truly yours,
SFBC INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
Accepted and agreed to as of the date first
above written
UBS SECURITIES LLC
By: /s/ Ankur Kamalia
---------------------------------------
Name: Ankur Kamalia
Title: Director
By: /s/ Xxxxxx Xxxx
---------------------------------------
Name: Xxxxxx Xxxx
Title: Associate Director
31
