Aristotle Holding, Inc. $1,250,000,000 3.500% Senior Notes Due 2016 REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
EXECUTION COPY
Aristotle Holding, Inc.
$1,250,000,000 3.500% Senior Notes Due 2016
November 21, 2011
Citigroup Global Markets Inc.,
000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000
000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000
As representatives (the “Representatives”) of the Initial Purchasers
Dear Sirs:
Aristotle Holding, Inc., a Delaware corporation (the “Issuer”), proposes to issue and sell,
upon the terms set forth in a purchase agreement dated November 14, 2011 (as amended prior to the
date hereof, the “Purchase Agreement”), to the several initial purchasers named in Schedule A to
the Purchase Agreement (the “Initial Purchasers”), $1,250,000,000 aggregate principal amount of its
3.500% Senior Notes due 2016 (the “Initial Securities”) to be unconditionally guaranteed (the
"Guaranties”) by the Guarantors (as defined below) and any other entity that becomes a guarantor of
the Initial Securities following the Closing Date pursuant to the terms of the Indenture (as
defined below). As used herein, (i) prior to the consummation of the Mergers and the execution and
delivery of any Joinder Agreements and Supplemental Indentures (as defined below) by the Merger
Date Guarantors, “Guarantors” means the Closing Date Guarantors and, following the consummation of
the Mergers and the execution and delivery of each Joinder Agreement and Supplemental Indenture by
a Merger Date Guarantor, “Guarantors” means the Closing Date Guarantors and the Merger Date
Guarantors party thereto, (ii) the “Company” refers to the Issuer together with the Guarantors and
(iii) capitalized terms used but not defined herein have the meanings ascribed to such terms in the
Purchase Agreement.
The Initial Securities will be issued pursuant to an indenture, dated as of November 21, 2011,
and supplemented by a supplemental indenture (a “Supplemental Indenture”) dated as of November 21,
2011, among the Issuer, the Closing Date Guarantors and Xxxxx Fargo Bank, National Association, as
Trustee (as supplemented on November 21, 2011, and as may be supplemented from time to time
thereafter, the “Indenture”). On the Merger Date Medco will, and within 60 days following the
Merger Date each other Merger Date Guarantor will, enter into (i) a Supplemental Indenture,
pursuant to which each such Merger Date Guarantor will unconditionally guarantee the Initial
Securities and (ii) a counterpart to this Agreement in the form attached hereto as Exhibit A
(each, a “Counterpart”). As an inducement to the Initial Purchasers, the Company agrees with the
Initial Purchasers, for the benefit of the holders of the Initial Securities (including, without
limitation, the Initial Purchasers), the Exchange Securities (as defined below) and the Private
Exchange Securities (as defined below) (collectively, the “Holders”), as follows:
1. Assumption and Adoption of this Agreement by the Merger Date Guarantors. On the Merger
Date, Medco will execute a Counterpart, and on the date that each other Merger Date Guarantor is
required to guarantee the Offered Securities pursuant to the terms of the Indenture, each such
other Merger Date Guarantor will execute a Counterpart.
2. Registered Exchange Offer. The Company shall, at its own cost, prepare and file with the
Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer
Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the
"Securities Act”), with respect to a proposed offer (the “Registered Exchange Offer”) to the
Holders of Transfer Restricted Securities (as defined in Section 7 hereof), who are not prohibited
by any law or policy of the Commission from participating in the Registered Exchange Offer, to
issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate
principal amount of debt securities (the “Exchange Securities”) of the Issuer issued under the
Indenture, guaranteed by the Guarantors and otherwise identical in all material respects to the
Initial Securities (except for the transfer restrictions relating to the Initial Securities, the
special mandatory redemption relating to the Initial Securities, the provisions relating to the
matters described in Section 7 hereof and any other provisions of the Indentures that are no longer
applicable to any party thereto as a result of the consummation of the Mergers) that would be
registered under the Securities Act. The Company shall (i) use commercially reasonable efforts to
cause such Exchange Offer Registration Statement to become effective under the Securities Act
within 360 days (or if the 360th day is not a business day, the first business day thereafter)
after the date of original issue of the Initial Securities (the “Issue Date”); provided that such
date shall not be earlier than the 60th day following the consummation of the Mergers (the later of
the date that is the 360th day after the date of issuance of the Initial Securities and the 60th
day after the consummation of the Mergers, the “Effectiveness Deadline”), (ii) as soon as
practicable after the effectiveness of the Exchange Offer Registration Statement, offer the
Exchange Securities in exchange for the Initial Securities and complete such Registered Exchange
Offer not later than 60 days after such Exchange Offer Registration Statement becomes effective (or
if such 60th day is not a business day, the next succeeding business day) and (iii) keep the
Registered Exchange Offer open for not less than 20 business days (or longer, if required by
applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders
(such period being called the “Exchange Offer Registration Period”). For the avoidance of doubt,
such Exchange Offer Registration Statement may include debt securities of the Company other than
the Initial Securities.
If the Company effects the Registered Exchange Offer, the Company will be entitled to close
the Registered Exchange Offer in not less than 20 business days after the commencement thereof
provided that the Company has accepted all the Initial Securities theretofore validly tendered in
accordance with the terms of the Registered Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer Registration Statement,
the Company shall as soon as practicable commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities
electing to exchange the Initial Securities for Exchange Securities (assuming that at the time of
the commencement of the Registered Exchange Offer such Holder is not an affiliate of the Company
within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course
of such Holder’s business and has no arrangements with any person to participate in the
distribution of the Exchange Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities
from and after their receipt without any limitations or restrictions under the Securities Act and
without material restrictions under the securities laws of the several states of the United States.
The Company acknowledges that, pursuant to current interpretations by the Commission’s staff
of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each
Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own
account as a result of market making activities or other trading activities, for Exchange
Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information
set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the “Exchange Offer Procedures”
section and the “Purpose of the Exchange Offer” section, and (c) Annex C hereto in the “Plan of
Distribution” section of such prospectus in connection with a sale of any such Exchange Securities
received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial
Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Securities
constituting any portion of an unsold allotment is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in connection with such sale.
The Company shall use commercially reasonable efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the prospectus contained therein, in order to
permit such
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prospectus to be lawfully delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities; provided, however, that (i) in the case
where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging
Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which
all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them
(unless such period is extended pursuant to Section 4(j) below) and (ii) the Company shall make
such prospectus and any amendment or supplement thereto available to any broker-dealer for use in
connection with any resale of any Exchange Securities for a period of not less than 90 days after
the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial
Securities acquired by it as part of its initial distribution, the Company, simultaneously with the
delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and
deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange
(the “Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like
principal amount of debt securities of the Issuer issued under the Indenture, guaranteed by the
Guarantors and otherwise identical in all material respects (including the existence of
restrictions on transfer under the Securities Act and the securities laws of the several states of
the United States, but excluding the special mandatory redemption relating to the Initial
Securities, the provisions relating to the matters described in Section 7 hereof and any other
provisions of the Indenture that are no longer applicable to a party thereto as a result of the
consummation of the Mergers) to the Initial Securities (the “Private Exchange Securities”). The
Initial Securities and the guarantees thereof, the Exchange Securities and the guarantees thereof
and the Private Exchange Securities and the guarantees thereof are herein collectively called the
"Securities”.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and related
documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or
longer, if required by applicable law) after the date notice thereof is mailed to the
Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an
address in the Borough of Manhattan, The City of New York, which may be the Trustee or an
affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last business day on which the Registered Exchange Offer
shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or the Private
Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities validly tendered and not withdrawn
pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted
for exchange; and
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(z) cause the Trustee to authenticate and deliver promptly to each Holder of the
Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be,
equal in principal amount to the Initial Securities of such Holder so accepted for
exchange.
The Indenture will provide that the Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture and that all the Securities will vote and consent together
on all matters as one class and that none of the Securities will have the right to vote or consent
as a class separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued pursuant to the
Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment
date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if
no interest has been paid on the Initial Securities, from the date of original issue of the Initial
Securities.
Each Holder participating in the Registered Exchange Offer shall be required to represent to
the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange
Securities received by such Holder will be acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understanding with any person to participate in the
distribution of the Initial Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an “affiliate” as defined in Rule 405 of the Securities
Act, of the Company or if it is an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such
Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities, (v) if such Holder is a broker-dealer, that it will
receive Exchange Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with any resale of such
Exchange Securities and (vi) such Holder is not acting on behalf of any person who could not
truthfully make the foregoing representations.
Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange
Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and
any supplement thereto complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and
any supplement to such prospectus, does not include an 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 light of the circumstances under which they were made, not misleading.
3. Shelf Registration. If, (i) because of any change in law or in applicable interpretations
thereof by the staff of the Commission, the Company is not permitted to effect a Registered
Exchange Offer, as contemplated by Section 2 hereof, (ii) the Registered Exchange Offer is not
consummated within 60 days after the Exchange Offer Registration Statement becomes effective, (iii)
any Initial Purchaser so requests with respect to the Initial Securities (or the Private Exchange
Securities) not eligible to be exchanged for Exchange Securities in the Registered Exchange Offer
and held by it following consummation of the Registered Exchange Offer or (iv) any Holder (other
than an Exchanging Dealer) is not eligible to participate in the Registered Exchange Offer or, in
the case of any Holder (other than an Exchanging
Dealer) that participates in the Registered Exchange Offer, such Holder does not receive freely
tradeable Exchange Securities on the date of the exchange, the Company shall take the following
actions:
(a) The Company shall, at its cost, as promptly as practicable (but in no event more
than 30 days after so required or requested pursuant to this Section 3) file with the
Commission and thereafter shall use commercially reasonable efforts to cause to be declared
effective (unless it
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becomes effective automatically upon filing) a registration statement
(the “Shelf Registration Statement” and, together with the Exchange Offer Registration
Statement, a “Registration Statement”) on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Securities (as defined in Section
7 hereof) by the Holders thereof from time to time in accordance with the methods of
distribution set forth in the Shelf Registration Statement and Rule 415 under the
Securities Act (hereinafter, the “Shelf Registration”); provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities held by it
covered by such Shelf Registration Statement unless such Holder agrees in writing to be
bound by all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the relevant Securities for a period of
one year (or such longer period extended pursuant to Section 4(j) below) from the Issue
Date or such shorter period that will terminate when all the Securities covered by the
Shelf Registration Statement (i) have been sold pursuant thereto or (ii) have been
distributed to the public pursuant to Rule 144 under the Securities Act. The Company shall
be deemed not to have used commercially reasonable efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any action that
would result in Holders of Securities covered thereby not being able to offer and sell such
Securities during that period, unless (i) such action is required by applicable law or (ii)
such action is taken by the Company in good faith and for valid business reasons (not
including avoidance of the Company’s obligations hereunder), including, but not limited to,
the acquisition or divestiture of assets, so long as the Company promptly thereafter
complies with the requirements of Section 4(j) hereof, if applicable.
(c) Notwithstanding any other provisions of this Agreement to the contrary, the
Company 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, amendment or supplement, (i) to comply in all material respects with the
applicable requirements of the Securities Act and the rules and regulations of the
Commission 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 light of the circumstances under which they were made, not misleading.
4. Registration Procedures. In connection with any Shelf Registration contemplated by
Section 3 hereof and, to the extent applicable, any Registered Exchange Offer contemplated by
Section 2 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement and each amendment
thereof and each supplement, if any, to the prospectus included therein and, in the event
that an Initial Purchaser (with respect to any portion of an unsold allotment from the
original offering) is participating in the Registered Exchange Offer or the Shelf
Registration Statement, the Company shall use commercially reasonable efforts to reflect in
each such document, when so filed with the Commission, such comments as such Initial
Purchaser reasonably may propose; (ii) include the information set forth in Annex A hereto
on the cover, in Annex B hereto in the “Exchange Offer
Procedures” section and the “Purpose of the Exchange Offer” section and in Annex C hereto
in the “Plan of Distribution” section of the prospectus forming a part of the Exchange
Offer Registration Statement and include the information set forth in Annex D hereto in the
Letter of Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if
requested by an Initial Purchaser, include the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in the prospectus forming a part of
the Exchange Offer Registration Statement; (iv) include within the prospectus contained in
the Exchange Offer Registration
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Statement a section entitled “Plan of Distribution,”
reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of
the positions taken or policies made by the staff of the Commission with respect to the
potential “underwriter” status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) of Exchange Securities received by such broker-dealer in the Registered Exchange
Offer (a “Participating Broker-Dealer”), whether such positions or policies have been
publicly disseminated by the staff of the Commission or such positions or policies, in the
reasonable judgment of the Initial Purchasers based upon advice of counsel (which may be
in-house counsel), represent the prevailing views of the staff of the Commission; and (v)
in the case of a Shelf Registration Statement, include in the prospectus included in the
Shelf Registration Statement (or, if permitted by Commission Rule 430B(b), in a prospectus
supplement that becomes a part thereof pursuant to Commission Rule 430B(f)) that is
delivered to any Holder pursuant to Section 4(d) and (f), the names of the Holders, who
propose to sell Securities pursuant to the Shelf Registration Statement, as selling
securityholders.
(b) The Company shall give written notice to the Initial Purchasers, the Holders of
the Securities and any Participating Broker-Dealer from whom the Company has received prior
written notice that it will be a Participating Broker-Dealer in the Registered Exchange
Offer (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite changes have been
made):
(i) when the Registration Statement or any amendment thereto has been filed
with the Commission and when the Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to the
Registration Statement or the prospectus included therein or for additional
information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, of the issuance by the Commission of a notification of objection
to the use of the form on which the Registration Statement has been filed, and of
the happening of any event that causes the Company to become an “ineligible
issuer,” as defined in Commission Rule 405;
(iv) of the receipt by the Company or its legal counsel of any notification
with respect to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires the Company to make changes
in the Registration Statement or the prospectus in order that the Registration
Statement or the prospectus do not contain an untrue statement of a material fact
nor omit to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading.
(c) The Company shall use commercially reasonable efforts to obtain the withdrawal at
the earliest possible time, of any order suspending the effectiveness of the Registration
Statement.
(d) The Company shall furnish to each Holder of Securities included within the
coverage of the Shelf Registration, without charge, at least one copy of the Shelf
Registration Statement and any post-effective amendment or supplement thereto, including
financial statements and schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any,
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incorporated by reference). The Company shall not,
without the prior consent of the Initial Purchasers (which consent shall not be
unreasonably withheld, conditioned or delayed), make any offer relating to the Securities
that would constitute a “free writing prospectus,” as defined in Commission Rule 405.
(e) The Company shall deliver to each Exchanging Dealer and each Initial Purchaser,
and to any other Holder who so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if any Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by reference).
(f) The Company shall, during the period of effectiveness of the Shelf Registration
Statement provided for in Section 3(b), deliver to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person may reasonably request.
The Company consents, subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf Registration
Statement.
(g) The Company shall deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to deliver a prospectus
following the Registered Exchange Offer, without charge, as many copies of the final
prospectus included in the Exchange Offer Registration Statement and any amendment or
supplement thereto as such persons may reasonably request. The Company consents, subject
to the provisions of this Agreement, to the use of the prospectus or any amendment or
supplement thereto by any Initial Purchaser, if necessary, any Participating Broker-Dealer
and such other persons required to deliver a prospectus following the Registered Exchange
Offer in connection with the offering and sale of the Exchange Securities covered by the
prospectus, or any amendment or supplement thereto, included in such Exchange Offer
Registration Statement.
(h) Prior to any public offering of the Securities, pursuant to any Registration
Statement, the Company shall use commercially reasonable efforts to register or qualify or
cooperate with the Holders of the Securities included therein and their respective counsel
in connection with the registration or qualification of the Securities for offer and sale
under the securities or “blue sky” laws of such states of the United States as any Holder
of the Securities reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions of the Securities
covered by such Registration Statement; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it is not then
so qualified or (ii) take any action which would subject it to general service of process
or to taxation in any jurisdiction where it is not then so subject.
(i) The Company shall reasonably cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing the Securities
to be sold pursuant to any Registration Statement free of any restrictive legends and in
such denominations and registered in such names as the Holders may request a reasonable
period of time prior to sales of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of
Section 4(b) above during the period for which the Company is required to maintain an
effective Registration Statement, the Company shall promptly prepare and file a
post-effective amendment to the Registration Statement or a supplement to the related
prospectus and any other required
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document so that, as thereafter delivered to Holders of
the Securities or purchasers of Securities, the prospectus will not contain an 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 light of the circumstances under
which they were made, not misleading. If the Company notifies the Initial Purchasers, the
Holders of the Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 4(b) above to suspend the use of the prospectus
until the requisite changes to the prospectus have been made, then the Initial Purchasers,
the Holders of the Securities and any such Participating Broker-Dealers shall suspend use
of such prospectus, and the period of effectiveness of the Shelf Registration Statement
provided for in Section 3(b) above and the Exchange Offer Registration Statement provided
for in Section 2 above shall each be extended by the number of days from and including the
date of the giving of such notice to and including the date when the Initial Purchasers,
the Holders of the Securities and any known Participating Broker-Dealer shall have received
such amended or supplemented prospectus pursuant to this Section 4(j). During the period
during which the Company is required to maintain an effective Shelf Registration Statement
pursuant to this Agreement, the Company will prior to the three-year expiration of that
Shelf Registration Statement file, and use commercially reasonable efforts to cause to be
declared effective (unless it becomes effective automatically upon filing) within a period
that avoids any interruption in the ability of Holders of Securities covered by the
expiring Shelf Registration Statement to make registered dispositions, a new registration
statement relating to the Securities, which shall be deemed the “Shelf Registration
Statement” for purposes of this Agreement.
(k) Not later than the effective date of the applicable Registration Statement, the
Company will provide a CUSIP number for the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the applicable trustee with printed
certificates for the Exchange Securities or the Private Exchange Securities, as the case
may be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company will comply with all rules and regulations of the Commission to the
extent and so long as they are applicable to the Registered Exchange Offer or the Shelf
Registration and will make generally available to its security holders (or otherwise
provide in accordance with Section 11(a) of the Securities Act) an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days
after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning
with the first month of the Company’s first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover such 12-month period.
(m) The Company shall cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”), in a timely manner and containing such
changes, if any, as shall be necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee under the Indenture, the
Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the
Indenture.
(n) The Company may require each Holder of Securities to be sold pursuant to the
Shelf Registration Statement to furnish to the Company such information regarding the
Holder and the distribution of the Securities as the Company may from time to time
reasonably require for inclusion in the Shelf Registration Statement, and the Company may
exclude from such registration the Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(o) The Company shall enter into such customary agreements (including, if requested,
an underwriting agreement in customary form) and take all such other action, if any, as
Holders of a majority of the aggregate principal amount of the Transfer Restricted
Securities (the “Required
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Holders”) shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration; provided that the Company
shall not be required to enter into an underwriting agreement (or similar agreement in
respect of an underwritten public offering) more than once; provided further that, if the
Required Holders shall request that the Company enter into an underwriting agreement (or
similar agreement in respect of an underwritten public offering) at a time when another
underwritten public offering with respect to the Company’s securities has been commenced
and is then continuing, then the Company may delay entry into the requested underwriting
agreement until the earlier of (i) the completion of the then existing underwritten public
offering or (ii) the 60th day following receipt of such request from the Required Holders.
(p) In the case of any Shelf Registration, the Company shall (i) make reasonably
available for inspection by the Holders of the Securities, any underwriter participating in
any disposition pursuant to the Shelf Registration Statement and any attorney, accountant
or other agent retained by the Holders of the Securities or any such underwriter all
relevant financial and other records, pertinent corporate documents and properties of the
Company and (ii) cause the Company’s officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the Holders of the
Securities or any such underwriter, attorney, accountant or agent in connection with the
Shelf Registration Statement, in each case, as shall be reasonably necessary to enable such
persons to conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and information gathering
shall be coordinated on behalf of the Initial Purchasers by you and on behalf of the other
parties by one counsel designated by and on behalf of such other parties as described in
Section 5 hereof.
(q) In the case of any Shelf Registration, the Company, if requested by any Holder of
Securities covered thereby, shall use its reasonable best efforts to cause (i) its counsel
to deliver an opinion in form and substance customary for offerings of such type and
reasonably acceptable to such Holders and the managing underwriting, if any, thereof,
relating to the Securities and addressed to such Holders and the managing underwriters, if
any, thereof and dated the effective date of such Shelf Registration Statement (and, if
such Shelf Registration contemplates an underwritten offering, dated the closing date under
the underwriting agreement relating thereto); (ii) its officers to execute and deliver all
customary documents and certificates and updates thereof requested by any underwriters of
the applicable Securities; and (iii) its independent public accountants and the independent
public accountants with respect to any other entity for which financial information is
provided in the Shelf Registration Statement to provide to the selling Holders of the
applicable Securities and any underwriter therefor a comfort letter in customary form and
covering matters of the type customarily covered in comfort letters in connection with
primary underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72 (or any
successor bulletins).
(r) In the case of the Registered Exchange Offer, if requested by any Initial
Purchaser or any known Participating Broker-Dealer that is, at the time of such request,
holding Initial Securities, the Company shall cause (i) its counsel to deliver to such
Initial Purchaser or such Participating Broker-Dealer a signed opinion in the form set
forth in Section 7(d) of the Purchase Agreement with such changes as are customary in
connection with the preparation of a Registration Statement and (ii) its independent public
accountants and the independent public accountants with respect to any other entity for
which financial information is provided in the Registration Statement to deliver to such
Initial Purchaser or such Participating Broker-Dealer a comfort letter, in customary form,
meeting the requirements as to the substance thereof as set forth in Sections 7(a) and 7(b)
of the Purchase Agreement with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Initial Securities by Holders to the Company (or to such other Person as
directed
9
by the Company) in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall xxxx, or caused to be marked, on the
Initial Securities so exchanged that such Initial Securities are being canceled in exchange
for the Exchange Securities or the Private Exchange Securities, as the case may be; in no
event shall the Initial Securities be marked as paid or otherwise satisfied.
(t) In the event that any broker-dealer registered under the Exchange Act shall
underwrite any Securities or participate as a member of an underwriting syndicate or
selling group or “assist in the distribution” (within the meaning of the Conduct Rules (the
“Rules”) of the Financial Industry Regulatory Authority, Inc. (“FINRA”)) thereof, whether
as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, the Company will assist such broker-dealer in
complying with the requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 5121, shall so require, engaging a “qualified independent
underwriter” (as defined in Rule 5121) to participate in the preparation of the
Registration Statement relating to such Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of the offering contemplated by such
Registration Statement is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such 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 Rules.
(v) The Company shall use commercially reasonable efforts to take all other steps
necessary to effect the registration of the Securities covered by a Registration Statement
contemplated hereby.
5. Registration Expenses. The Company shall bear all fees and expenses incurred in
connection with the performance of its obligations under Sections 2 through 4 hereof, whether or
not the Registered Exchange Offer or a Shelf Registration is filed or becomes effective, and, in
the event of a Shelf Registration, shall bear or reimburse the Holders of the Securities covered
thereby for the reasonable fees and disbursements of one firm of counsel designated by the Holders
of a majority in principal amount of the Initial Securities covered thereby to act as counsel for
the Holders of the Initial Securities in connection therewith.
6. Indemnification. (a) The Company agrees to indemnify and hold harmless each Holder of
the Securities, any Participating Broker-Dealer and each person, if any, who controls such Holder
or such Participating Broker-Dealer within the meaning of the Securities Act or the Exchange Act
(each Holder, any Participating Broker-Dealer and such controlling persons are referred to
collectively as the “Indemnified Parties”) from and against any losses, claims, damages or
liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses, claims, damages, liabilities
or actions relating to purchases and sales of the Securities) to which each Indemnified Party may
become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in a Registration Statement or prospectus or
in any amendment or supplement thereto or in any preliminary prospectus or “issuer free writing
prospectus,” as defined in Commission Rule 433 (“Issuer FWP”), relating to a Shelf Registration, or
arise out of, or are based upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not misleading, and 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, claim, damage, liability or
action in respect thereof; provided, however, that (i) the Company shall not be liable in any such
case to the extent that such loss, claim, damage or liability arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission made in a Registration
Statement or
10
prospectus or in any amendment or supplement thereto or in any preliminary prospectus
or Issuer FWP relating to a Shelf Registration in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or on behalf of such Holder
specifically for inclusion therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf
Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to
the benefit of any Holder or Participating Broker-Dealer from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities concerned, to the extent that a
prospectus relating to such Securities was required to be delivered (including through satisfaction
of the conditions of Commission Rule 172) by such Holder or Participating Broker-Dealer under the
Securities Act in connection with such purchase and any such loss, claim, damage or liability of
such Holder or Participating Broker-Dealer results from the fact that there was not conveyed to
such person, at or prior to the time of the sale of such Securities to such person, an amended or
supplemented prospectus or, if permitted by Section 4(d), an Issuer FWP correcting such untrue
statement or omission or alleged untrue statement or omission if the Company had previously
furnished copies thereof to such Holder or Participating Broker-Dealer; provided further, however,
that this indemnity agreement will be in addition to any liability which the Company may otherwise
have to such Indemnified Party. The Company shall also indemnify underwriters, their officers and
directors and each person who controls such underwriters within the meaning of the Securities Act
or the Exchange Act to the same extent as provided above with respect to the indemnification of the
Holders of the Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act from and against any losses, claims, damages or liabilities or
any actions in respect thereof, to which the Company or any such controlling person may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf
Registration, or arise out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein (in the case of a prospectus, in light of
the circumstances under which they were made) not misleading, but in each case only to the extent
that the untrue statement or omission or alleged untrue statement or omission was made in reliance
upon and in conformity with written information pertaining to such Holder and furnished to the
Company by or on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as incurred, the Company
for any legal or other expenses reasonably incurred by the Company or any such controlling person
in connection with investigating or defending any loss, claim, damage, liability 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 of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 6 of notice of the
commencement of any action or proceeding (including a governmental investigation), such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve the indemnifying party from any liability that it may have
under subsection (a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided further
that the failure to notify the indemnifying party shall not relieve it from any liability that it
may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof the
11
indemnifying party will not be liable to such indemnified party under this
Section 6 for any legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense thereof. No
indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such indemnified party
unless such settlement (i) includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action, and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 6 is unavailable or insufficient to
hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party on the other from the
exchange of the Securities, pursuant to the Registered Exchange Offer, or (ii) if the allocation
provided by the foregoing clause (i) 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 indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company on the one
hand or such Holder or such other indemnified party, as the case may be, on the other, and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding any other provision of this Section 6(d), the Holders of the
Securities shall not be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party within the meaning
of the Securities Act or the Exchange Act shall have the same rights to contribution as such
indemnified party.
(e) The agreements contained in this Section 6 shall survive the sale of the Securities
pursuant to a Registration Statement and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
7. Additional Interest Under Certain Circumstances. (a) Additional interest (the
"Additional Interest”) with respect to the Initial Securities shall be assessed as follows if any
of the following events occur (each such event in clauses (i) through (iv) below a “Registration
Default”):
(i) If an Exchange Offer Registration Statement is required to be filed and it does
not become effective by the Effectiveness Deadline;
(ii) If the Registered Exchange Offer is not consummated within 60 days of the
effectiveness of the Exchange Offer Registration Statement;
12
(iii) If an effective Shelf Registration Statement is required to be filed with the
Commission but does not become effective within 30 days following the event which required
the filing of such Shelf Registration Statement; or
(iv) If after either an Exchange Offer Registration Statement or a Shelf Registration
Statement is declared (or becomes automatically) effective (A) such Registration Statement
thereafter ceases to be effective or (B) such Registration Statement or the related
prospectus ceases to be usable (except as permitted in paragraph (b)) in connection with
resales of Transfer Restricted Securities during the periods specified herein because
either (1) any event occurs as a result of which the related prospectus forming part of
such Registration Statement would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, (2) it shall be necessary to amend
such Registration Statement or supplement the related prospectus to comply with the
Securities Act or the Exchange Act or the respective rules thereunder, or (3) such
Registration Statement is a Shelf Registration Statement that has expired before a
replacement Shelf Registration Statement has become effective.
Additional Interest shall accrue on the Initial Securities over and above the interest set
forth in the title of such Securities from and including the date on which any such Registration
Default shall occur to but excluding the date on which all such Registration Defaults have been
cured or the Initial Securities cease to be Transfer Restricted Securities, whichever is earlier,
at a rate of 0.25% per annum for the first 90-day period immediately following the occurrence of a
Registration Default (the “Initial Period”), and such rate will increase by 0.25% per annum on the
91st day following the occurrence of such Registration Default (it being understood and agreed that
the maximum Additional Interest rate during the Initial Period shall be 0.25% per annum and the
maximum Additional Interest rate thereafter shall be 0.50% per annum, in each case, regardless of
the number of Registration Defaults that shall have occurred and be continuing).
(b) A Registration Default referred to in Section 7(a)(iv)(B) hereof shall be deemed not to
have occurred and be continuing in relation to a Shelf Registration Statement or the related
prospectus if (i) such Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to use the related prospectus or (y)
the occurrence of other material events with respect to
the Company that would be required to be disclosed in such Shelf Registration Statement or the
related prospectus, and the disclosure of which in such Shelf Registration Statement or the related
prospectus would in the good faith determination of the Company (1) interfere with or affect the
negotiation or completion of a transaction that is being contemplated by the Company (whether or
not a final decision has been made to undertake such transaction) and (2) involve initial or
continuing disclosure obligations that are not in the best interest of the Company or its
stockholders at such time and (ii) in the case of clause (y), the Company is proceeding in good
faith to amend or supplement such Shelf Registration Statement and related prospectus to describe
such events; provided, however, that in any case if such Registration Default occurs for a
continuous period in excess of 30 days or more than an aggregate of 90 days in any 12-month period,
Additional Interest shall be payable in accordance with the above paragraph from the day such
Registration Default occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to clause (i), (ii), (iii) or (iv) of
Section 7(a) above will be payable in cash on the regular interest payment dates with respect to
the Initial Securities. The amount of Additional Interest will be determined by multiplying the
applicable Additional Interest rate by the principal amount of the Initial Securities, multiplied
by a fraction, the numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
13
(d) “Transfer Restricted Securities” means each Security until (i) the date on which such
Transfer Restricted Security has been exchanged by a person other than a broker-dealer for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) following the exchange by a
broker-dealer in the Registered Exchange Offer of an Initial Security for an Exchange Security, the
date on which such Exchange Security is sold to a purchaser who receives from such broker-dealer on
or prior to the date of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Initial Security has been effectively
registered under the Securities Act and disposed of in accordance with the Shelf Registration
Statement, (iv) the date on which such Initial Security is distributed to the public pursuant to
Rule 144 under the Securities Act or (v) the earliest date that is no less than one year after the
Issue Date and on which such Security (except for Securities held by an affiliate of the Company)
may be resold in reliance on paragraph (b)(1) of Rule 144 under the Securities Act or (vi) the date
on which such Initial Security shall cease to be outstanding.
8. Rules 144 and 144A. For as long as any Transfer Restricted Securities remain outstanding,
the Company will file with the Securities and Exchange Commission (the “SEC”), and transmit to any
Holder of Initial Securities, such information, documents and reports, and such summaries thereof,
as may be required pursuant to the Trust Indenture Act, at the times and in the manner provided
pursuant to the Trust Indenture Act. In addition, the Company will furnish to any Holder of Initial
Securities and to prospective purchasers of Initial Securities, upon the requests of such Holder,
any information required to be delivered pursuant to Rule 144A(d)(4) (or any successor provision)
under the Securities Act, so long as the notes are not freely transferable under the Securities
Act. The Company will pay the expenses of printing and distributing all such information.
9. Underwritten Registrations. If any of the Transfer Restricted Securities covered by any
Shelf Registration are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering (“Managing Underwriters”) will be
selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities to be included in such offering.
No person may participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person’s Transfer Restricted 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.
10. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof may not be given,
except by the Company and the written consent of the Holders of a majority in principal amount of
the Securities affected by such amendment, modification, supplement, waiver or consents.
(b) Notices. All communications hereunder will be in writing and, if sent to a Holder of the
Securities, will be mailed, delivered or telegraphed to the most current address given by such
Holder to the Company, or, if sent to the Initial Purchasers, will be mailed, delivered or
telegraphed and confirmed to Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York,
N.Y. 10010-3629, Attention: LCD-IBD and Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, X.X. 00000, Attention: General Counsel, or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it care of Express Scripts, Inc., Xxx Xxxxxxx Xxx, Xx. Xxxxx, XX
00000, Attention: Xxxxx Xxxxxx, General Counsel; provided, however, that any notice to an Initial
Purchaser pursuant to Section 6 will be mailed, delivered or telegraphed and confirmed to such
Initial Purchaser.
14
(c) No Inconsistent Agreements. The Company has not, as of the date hereof, entered into,
nor shall it, on or after the date hereof, enter into, any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(d) Merger Date Guarantors; Successors and Assigns. This Agreement shall become effective as
to, and binding upon, each of the Merger Date Guarantors upon execution and delivery of a
Counterpart. Upon execution of a Counterpart, each Merger Date Guarantor agrees to be bound by the
terms, conditions and other provisions of this Agreement as described in the Counterpart, with all
rights, duties and obligations stated herein, with the same force and effect as if such party had
executed this Agreement on the date hereof. This Agreement shall be binding upon the Company and
its successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
(f) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. If any one or more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval of Holders of a
specified percentage of principal amount 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.
15
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Issuer a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the several Initial Purchasers, the Issuer and the Closing
Date Guarantors in accordance with its terms.
16
| Very truly yours, ARISTOTLE HOLDING, INC. |
||||
| By: | /s/ Xxxxxx Xxx | |||
| Name: | Xxxxxx Xxx | |||
| Title: | Chairman, Chief Executive Officer and President | |||
| EXPRESS SCRIPTS, INC. |
||||
| By: | /s/ Xxxxxx Xxx | |||
| Name: | Xxxxxx Xxx | |||
| Title: | Chairman, Chief Executive Officer and President | |||
| AIRPORT HOLDINGS, LLC ESI REALTY, LLC By: Express Scripts, Inc., as sole Member |
||||
| By: | /s/ Xxxxxx Xxx | |||
| Name: | Xxxxxx Xxx | |||
| Title: | Chairman, Chief Executive Officer and President | |||
| XXXXXXX DRUG, INC. CARE CONTINUUM, INC. CFI OF NEW JERSEY, INC. CHESAPEAKE INFUSION, INC. CONNECTYOURCARE COMPANY LLC CONNECTYOURCARE, LLC CURASCRIPT PBM SERVICES INC. DIVERSIFIED PHARMACEUTICAL SERVICES, INC. ESI ACQUISITION, INC. ESI CLAIMS, INC. ESI ENTERPRISES, LLC ESI MAIL ORDER PROCESSING, INC. EXPRESS SCRIPTS CANADA HOLDING CO. EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC EXPRESS SCRIPTS SALES DEVELOPMENT CO. FRECO, INC. FREEDOM SERVICE COMPANY, LLC HEALTHBRIDGE, INC. HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC. iBIOLOGIC, INC. IVTX, INC. LYNNFIELD COMPOUNDING CENTER, INC. LYNNFIELD DRUG, INC. MATRIX GPO LLC NATIONAL PRESCRIPTION ADMINISTRATORS, INC. PRIORITY HEALTHCARE CORPORATION PRIORITY HEALTHCARE CORPORATION WEST PRIORITY HEALTHCARE DISTRIBUTION, INC. PRIORITY HEALTHCARE PHARMACY, INC. XXXXXXXXXXXXXXXXXX.XXX, INC. SINUSPHARMACY, INC. SPECIALTY INFUSION PHARMACY, INC. SPECTRACARE, INC. SPECTRACARE HEALTH CARE VENTURES, INC. SPECTRACARE INFUSION PHARMACY, INC. VALUE HEALTH, INC. XXXXXXXXXXXX.XXX, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| CURASCRIPT, INC. ESI MAIL PHARMACY SERVICE, INC. EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC. EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO. MOORESVILLE ON-SITE PHARMACY, LLC |
||||
| By: | /s/ Xxxxxxx XxXxxxx | |||
| Name: | Xxxxxxx XxXxxxx | |||
| Title: | President | |||
| ESI-GP HOLDINGS, INC. ESI RESOURCES, INC. |
||||
| By: | /s/ Xxx Xxxxxxxxx | |||
| Name: | Xxx Xxxxxxxxx | |||
| Title: | President | |||
| ESI PARTNERSHIP By: Express Scripts, Inc., as Partner |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President and Deputy General Counsel | |||
| By: ESI-GP Holdings, Inc., as Partner |
||||
| By: | /s/ Xxx Xxxxxxxxx | |||
| Name: | Xxx Xxxxxxxxx | |||
| Title: | President | |||
| SPECTRACARE OF INDIANA By: Spectracare, Inc., as Partner |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| By: Care Continuum, Inc., as Partner |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| EXPRESS SCRIPTS MSA, LLC EXPRESS SCRIPTS WC, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | President | |||
| EXPRESS SCRIPTS SENIOR CARE, INC. EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxx Xxx | |||
| Name: | Xxxxxx Xxx | |||
| Title: | President | |||
| EXPRESS SCRIPTS CANADA HOLDING, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
The foregoing Registration Rights Agreement is hereby
confirmed and accepted as of the date first above
written.
confirmed and accepted as of the date first above
written.
Acting on behalf of themselves and as the
Representatives of the Initial Purchasers
Representatives of the Initial Purchasers
| CREDIT SUISSE SECURITIES (USA) LLC |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
| CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Managing Director | |||
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Initial Securities where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date (as defined herein), it will make
this Prospectus available to any broker-dealer for use in connection with any such resale. See
“Plan of Distribution.”
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in exchange for
Initial Securities, where such Initial Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. See “Plan of Distribution.”
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time,
may be used by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed that, for a period of
180 days after the Expiration Date, it will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In addition, until
, 20 , all dealers effecting transactions in the Exchange Securities may be required
to deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange Securities by
broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to
the Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices prevailing at the time of
resale, at prices related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such broker-dealer or the purchasers of any such
Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it
for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an “underwriter” within the meaning of
the Securities Act and any profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will promptly send additional
copies of this Prospectus and any amendment or supplement to this Prospectus to any broker-dealer
that requests such documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer other than commissions or concessions of any brokers or
dealers and will indemnify the Holders of the Securities (including any broker-dealers) against
certain liabilities, including liabilities under the Securities Act.
| (1) | In addition, the legend required by Item 502(e) of Regulation S-K will appear on the back cover page of the Exchange Offer prospectus. |
ANNEX D
o CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS
AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
| Name: | ||||||
| Address: | ||||||
If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in,
and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a
broker-dealer that will receive Exchange Securities for its own account in exchange for Initial
Securities that were acquired as a result of market-making activities or other trading activities,
it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange
Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not
be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
Exhibit A
Counterpart to Registration Rights Agreement
Each signatory hereto (a “Merger Date Guarantor”) hereby agrees to join and become a party to
the Registration Rights Agreement, dated as of November 21, 2011, among Aristotle Holding, Inc.
(the “Issuer”) the Guarantors (as defined therein) party thereto and Credit Suisse Securities (USA)
LLC and Citigroup Global Markets Inc., as representatives of the Initial Purchasers (as defined
therein), in respect of the Issuer’s 3.500% Senior Notes due 2016 (the “Registration Rights
Agreement”), as of the execution and delivery of this counterpart as though it had entered into the
Registration Rights Agreement on November 21, 2011. Each Merger Date Guarantor hereby further
agrees, effective upon the execution and delivery of this counterpart, to be bound by all of the
covenants, agreements and obligations of the “Company” or of a “Guarantor” under the Registration
Rights Agreement. For the avoidance of doubt, such covenants, agreements and obligations shall
include, but not be limited to, the obligations enumerated in Sections 2, 3, 4, 5, 6, 8 and 10 of
the Registration Rights Agreement.
Dated:_____________________________
| [Name of Guarantor] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
