MAXXIM MEDICAL, INC.
$100,000,000
10 1/2% SENIOR SUBORDINATED NOTES DUE 2006
REGISTRATION RIGHTS AGREEMENT
NEW YORK, NEW YORK
JULY 30, 1996
NATIONSBANC CAPITAL MARKETS, INC.
BEAR, XXXXXXX & CO. INC.
C/O NATIONSBANC CAPITAL MARKETS, INC.
NATIONSBANK CORPORATE CENTER
000 XXXXX XXXXX XXXXXX, XX0-000-00-00
XXXXXXXXX, XXXXX XXXXXXXX 00000-0000
LADIES AND GENTLEMEN:
MAXXIM MEDICAL, INC., A TEXAS CORPORATION (THE "COMPANY"),
PROPOSES TO ISSUE AND SELL (THE "INITIAL PLACEMENT") TO NATIONSBANC CAPITAL
MARKETS, INC. AND BEAR, XXXXXXX & CO. INC. (THE "INITIAL PURCHASERS"), UPON THE
TERMS SET FORTH IN A PURCHASE AGREEMENT DATED JULY 18, 1996 (THE "PURCHASE
AGREEMENT"), $100,000,000 PRINCIPAL AMOUNT OF ITS 10 1/2% SENIOR SUBORDINATED
NOTES DUE 2006 (THE "NOTES"). THE NOTES ARE TO BE UNCONDITIONALLY GUARANTEED,
JOINTLY AND SEVERALLY, ON A SENIOR SUBORDINATED AND UNSECURED BASIS (THE "NOTE
GUARANTEES") BY EACH EXISTING AND FUTURE DIRECT AND INDIRECT SUBSIDIARY OF THE
COMPANY (EACH SUCH EXISTING GUARANTOR, A "GUARANTOR" AND COLLECTIVELY, THE
"GUARANTORS"), SUBJECT TO CERTAIN EXCEPTIONS. THE NOTES ARE TO BE ISSUED UNDER
AN INDENTURE (THE "INDENTURE") TO BE DATED AS OF THE CLOSING DATE (AS DEFINED
BELOW) AMONG THE COMPANY, THE GUARANTORS AND FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, AS TRUSTEE. THE INITIAL PLACEMENT IS SUBJECT TO CERTAIN CONDITIONS
DESCRIBED IN THE PURCHASE AGREEMENT. AS AN INDUCEMENT TO THE INITIAL PURCHASERS
TO ENTER INTO THE PURCHASE AGREEMENT AND PURCHASE THE NOTES AND IN SATISFACTION
OF A CONDITION TO YOUR OBLIGATIONS UNDER THE PURCHASE AGREEMENT, THE COMPANY
AGREES WITH YOU FOR THE BENEFIT OF THE HOLDERS FROM TIME TO TIME OF
THE NOTES (INCLUDING THE INITIAL PURCHASERS) (EACH OF THE FOREGOING A "HOLDER"
AND TOGETHER THE "HOLDERS"), AS FOLLOWS:
1. DEFINITIONS. CAPITALIZED TERMS USED HEREIN WITHOUT DEFINITION
SHALL HAVE THEIR RESPECTIVE MEANINGS SET FORTH IN THE PURCHASE AGREEMENT. AS
USED IN THIS AGREEMENT, THE FOLLOWING CAPITALIZED DEFINED TERMS SHALL HAVE THE
FOLLOWING MEANINGS:
"AFFILIATE" OF ANY SPECIFIED PERSON MEANS (I) ANY OTHER PERSON
DIRECTLY OR INDIRECTLY CONTROLLING OR CONTROLLED BY OR UNDER COMMON CONTROL WITH
SUCH SPECIFIED PERSON OR (II) ANY OTHER PERSON WHO IS A DIRECTOR OR EXECUTIVE
OFFICER OF (A) SUCH SPECIFIED PERSON OR (B) ANY PERSON DESCRIBED IN THE
PRECEDING CLAUSE (I). FOR PURPOSES OF THIS DEFINITION, "CONTROL" (INCLUDING,
WITH CORRELATIVE MEANINGS, THE TERMS "CONTROLLING," "CONTROLLED BY" AND "UNDER
COMMON CONTROL WITH"), AS USED WITH RESPECT TO ANY PERSON, SHALL MEAN THE
POSSESSION, DIRECTLY OR INDIRECTLY, OF THE POWER TO DIRECT OR CAUSE THE
DIRECTION OF THE MANAGEMENT OR POLICIES OF SUCH PERSON, WHETHER THROUGH THE
OWNERSHIP OF VOTING SECURITIES, BY AGREEMENT OR OTHERWISE; PROVIDED THAT
BENEFICIAL OWNERSHIP OF 10% OR MORE OF ANY CLASS, OR ANY SERIES OF ANY CLASS, OF
EQUITY SECURITIES OF A PERSON, WHETHER OR NOT VOTING, SHALL BE DEEMED TO BE
CONTROL.
"CLOSING DATE" HAS THE MEANING SET FORTH IN THE PURCHASE
AGREEMENT.
"COMMISSION" MEANS THE SECURITIES AND EXCHANGE COMMISSION.
"COMPANY" HAS THE MEANING SET FORTH IN THE PREAMBLE HERETO.
"EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED, AND THE RULES AND REGULATIONS OF THE COMMISSION PROMULGATED THEREUNDER.
"EXCHANGE OFFER REGISTRATION PERIOD" MEANS THE 1 YEAR PERIOD
FOLLOWING THE CONSUMMATION OF THE REGISTERED EXCHANGE OFFER, EXCLUSIVE OF ANY
PERIOD DURING WHICH ANY STOP ORDER SHALL BE IN EFFECT SUSPENDING THE
EFFECTIVENESS OF THE EXCHANGE OFFER REGISTRATION
STATEMENT.
"EXCHANGE OFFER REGISTRATION STATEMENT" MEANS A REGISTRATION
STATEMENT OF THE COMPANY ON AN APPROPRIATE FORM UNDER THE SECURITIES ACT WITH
RESPECT TO THE REGISTERED EXCHANGE OFFER, ALL AMENDMENTS AND SUPPLEMENTS TO SUCH
REGISTRATION STATEMENT, INCLUDING POST-EFFECTIVE AMENDMENTS, IN EACH CASE
INCLUDING THE PROSPECTUS CONTAINED THEREIN, ALL EXHIBITS THERETO AND ALL
MATERIAL INCORPORATED BY REFERENCE THEREIN.
"EXCHANGING DEALER" MEANS ANY HOLDER (WHICH MAY INCLUDE ANY
INITIAL PURCHASER) THAT IS A BROKER-DEALER, ELECTING TO EXCHANGE NOTES ACQUIRED
FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING
ACTIVITIES FOR NEW NOTES.
"FINAL MEMORANDUM" HAS THE MEANING SET FORTH IN THE PURCHASE
AGREEMENT.
"GUARANTORS" HAS THE MEANING SET FORTH IN THE PREAMBLE HERETO.
"HOLDER" HAS THE MEANING SET FORTH IN THE PREAMBLE HERETO.
"INDENTURE" MEANS THE INDENTURE RELATING TO THE NOTES, DATED AS
OF THE CLOSING DATE, AMONG THE COMPANY, MAXXIM DELAWARE, AS A GUARANTOR, EACH
OTHER THEN-EXISTING SUBSIDIARY OF THE COMPANY (OTHER THAN STERILE CONCEPTS AND
ITS SUBSIDIARIES), AS GUARANTORS, AND FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, AS TRUSTEE, AS THE SAME MAY BE AMENDED, SUPPLEMENTED, WAIVED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF.
"INITIAL PLACEMENT" HAS THE MEANING SET FORTH IN THE PREAMBLE
HERETO.
"INITIAL PURCHASERS" MEANS NATIONSBANC CAPITAL MARKETS, INC. AND
BEAR, XXXXXXX & CO. INC.
"LIQUIDATED DAMAGES" HAS THE MEANING SET FORTH IN SECTION 4
HEREOF.
"LOSSES" HAS THE MEANING SET FORTH IN SECTION 7(D) HERETO.
"MAJORITY HOLDERS" MEANS THE HOLDERS OF A MAJORITY OF THE
AGGREGATE PRINCIPAL AMOUNT OF NOTES REGISTERED UNDER A REGISTRATION STATEMENT.
"MANAGING UNDERWRITERS" MEANS THE INVESTMENT BANKER OR INVESTMENT
BANKERS AND MANAGER OR MANAGERS THAT SHALL ADMINISTER AN UNDERWRITTEN OFFERING
UNDER A SHELF REGISTRATION STATEMENT.
"NEW NOTES" MEANS DEBT SECURITIES OF THE COMPANY IDENTICAL IN ALL
MATERIAL RESPECTS TO THE NOTES, INCLUDING THE NOTE GUARANTEES THEREOF (EXCEPT
THAT THE LIQUIDATED DAMAGES PROVISIONS AND THE TRANSFER RESTRICTIONS PERTAINING
TO THE NOTES WILL BE MODIFIED OR ELIMINATED, AS APPROPRIATE), TO BE ISSUED UNDER
THE INDENTURE OR THE NEW NOTES INDENTURE.
"NEW NOTES INDENTURE" MEANS AN INDENTURE BETWEEN THE COMPANY, THE
GUARANTORS AND THE NEW NOTES TRUSTEE, IDENTICAL IN ALL MATERIAL RESPECTS WITH
THE INDENTURE (EXCEPT THAT THE LIQUIDATED DAMAGES PROVISIONS AND THE TRANSFER
RESTRICTIONS PERTAINING TO THE NOTES WILL BE MODIFIED OR ELIMINATED, AS
APPROPRIATE).
"NEW NOTES TRUSTEE" MEANS A BANK OR TRUST COMPANY REASONABLY
SATISFACTORY TO THE INITIAL PURCHASERS, AS TRUSTEE WITH RESPECT TO THE NEW NOTES
UNDER THE NEW NOTES INDENTURE."
"NOTE GUARANTEES" HAS THE MEANING SET FORTH IN THE PREAMBLE
HERETO AND SHALL, AS APPLIED TO THE NEW NOTES, MEAN IDENTICAL GUARANTEES OF THE
NEW NOTES BY THE GUARANTORS.
"NOTES" HAS THE MEANING SET FORTH IN THE PREAMBLE HERETO.
"PROSPECTUS" MEANS THE PROSPECTUS INCLUDED IN ANY REGISTRATION
STATEMENT (INCLUDING, WITHOUT LIMITATION, A PROSPECTUS THAT DISCLOSES
INFORMATION PREVIOUSLY OMITTED FROM A PROSPECTUS FILED AS PART OF AN EFFECTIVE
REGISTRATION STATEMENT IN RELIANCE UPON RULE 430A UNDER THE SECURITIES ACT), AS
AMENDED OR SUPPLEMENTED BY ANY PROSPECTUS SUPPLEMENT, WITH RESPECT TO THE TERMS
OF THE OFFERING OF ANY PORTION OF THE NOTES OR THE NEW NOTES COVERED BY SUCH
REGISTRATION STATEMENT, AND ALL AMENDMENTS AND SUPPLEMENTS TO THE PROSPECTUS,
INCLUDING POST-EFFECTIVE AMENDMENTS.
"PURCHASE AGREEMENT" HAS THE MEANING SET FORTH IN THE PREAMBLE
HERETO.
"REGISTERED EXCHANGE OFFER" MEANS THE PROPOSED OFFER TO THE
HOLDERS TO ISSUE AND DELIVER TO SUCH HOLDERS, IN EXCHANGE FOR THE NOTES, A LIKE
PRINCIPAL AMOUNT OF NEW NOTES.
"REGISTRATION STATEMENT" MEANS ANY EXCHANGE OFFER REGISTRATION
STATEMENT OR SHELF REGISTRATION STATEMENT THAT COVERS ANY OF THE NOTES OR THE
NEW NOTES (INCLUDING THE NOTE GUARANTEES OF EACH THEROF) PURSUANT TO THE
PROVISIONS OF THIS AGREEMENT, AMENDMENTS AND SUPPLEMENTS TO SUCH REGISTRATION
STATEMENT, INCLUDING POST-EFFECTIVE AMENDMENTS, IN EACH CASE INCLUDING THE
PROSPECTUS CONTAINED THEREIN, ALL EXHIBITS THERETO AND ALL MATERIAL INCORPORATED
BY REFERENCE THEREIN.
"SECURITIES ACT" MEANS THE SECURITIES ACT OF 1933, AS AMENDED,
AND THE RULES AND REGULATIONS OF THE COMMISSION PROMULGATED THEREUNDER.
"SHELF REGISTRATION" MEANS A REGISTRATION EFFECTED PURSUANT TO
SECTION 3 HEREOF.
"SHELF REGISTRATION PERIOD" HAS THE MEANING SET FORTH IN SECTION
3(B) HEREOF.
"SHELF REGISTRATION STATEMENT" MEANS A "SHELF" REGISTRATION
STATEMENT OF THE COMPANY PURSUANT TO THE PROVISIONS OF SECTION 3 HEREOF, WHICH
COVERS SOME OR ALL OF THE NOTES OR NEW NOTES, AS APPLICABLE, ON AN APPROPRIATE
FORM UNDER RULE 415 UNDER THE
SECURITIES ACT, OR ANY SIMILAR RULE THAT MAY BE ADOPTED BY THE COMMISSION,
AMENDMENTS AND SUPPLEMENTS TO SUCH REGISTRATION STATEMENT, INCLUDING
POST-EFFECTIVE AMENDMENTS, IN EACH CASE INCLUDING THE PROSPECTUS CONTAINED
THEREIN, ALL EXHIBITS THERETO AND ALL MATERIAL INCORPORATED BY REFERENCE
THEREIN.
"TRUSTEE" MEANS THE TRUSTEE WITH RESPECT TO THE NOTES UNDER THE
INDENTURE.
"UNDERWRITER" MEANS ANY UNDERWRITER OF NOTES IN CONNECTION WITH
AN OFFERING THEREOF UNDER A SHELF REGISTRATION STATEMENT.
2. REGISTERED EXCHANGE OFFER; RESALES OF NEW NOTES BY EXCHANGING
DEALERS; PRIVATE EXCHANGE. (A) THE COMPANY SHALL PREPARE AND, ON OR PRIOR TO
OCTOBER 1, 1996, SHALL FILE WITH THE COMMISSION THE EXCHANGE OFFER REGISTRATION
STATEMENT WITH RESPECT TO THE REGISTERED EXCHANGE OFFER. THE COMPANY SHALL USE
ITS BEST EFFORTS (I) TO CAUSE THE COMMISSION TO DECLARE THE EXCHANGE OFFER
REGISTRATION STATEMENT EFFECTIVE UNDER THE SECURITIES ACT ON OR PRIOR TO
NOVEMBER 15, 1996 AND (II) TO CONSUMMATE THE REGISTERED EXCHANGE OFFER ON OR
PRIOR TO DECEMBER 15, 1996.
(B) UPON THE EFFECTIVENESS OF THE EXCHANGE OFFER REGISTRATION
STATEMENT, THE COMPANY SHALL PROMPTLY COMMENCE THE REGISTERED EXCHANGE OFFER AND
USE ITS BEST EFFORTS TO ISSUE ON OR PRIOR TO 30 DAYS AFTER THE DATE ON WHICH THE
EXCHANGE OFFER REGISTRATION STATEMENT IS DECLARED EFFECTIVE BY THE COMMISSION
NEW NOTES IN EXCHANGE FOR ALL NOTES TENDERED PRIOR THERETO IN THE REGISTERED
EXCHANGE OFFER. THE OBJECTIVE OF SUCH REGISTERED EXCHANGE OFFER IS TO ENABLE
EACH HOLDER ELECTING TO EXCHANGE NOTES FOR NEW NOTES (ASSUMING THAT SUCH HOLDER
(X) IS NOT AN "AFFILIATE" OF THE COMPANY WITHIN THE MEANING OF THE SECURITIES
ACT, (Y) IS NOT A BROKER-DEALER THAT ACQUIRED THE NOTES IN A TRANSACTION OTHER
THAN AS A PART OF ITS MARKET-MAKING OR OTHER TRADING ACTIVITIES AND (Z) IF SUCH
HOLDER IS NOT A BROKER-DEALER, ACQUIRES THE NEW NOTES IN THE ORDINARY COURSE OF
SUCH HOLDER'S BUSINESS, IS NOT PARTICIPATING IN THE DISTRIBUTION OF THE NEW
NOTES AND HAS NO ARRANGEMENTS OR UNDERSTANDINGS WITH ANY PERSON TO PARTICIPATE
IN THE DISTRIBUTION OF THE NEW NOTES) TO RESELL SUCH NEW NOTES FROM AND AFTER
THEIR RECEIPT WITHOUT ANY LIMITATIONS OR RESTRICTIONS UNDER THE SECURITIES ACT
AND WITHOUT MATERIAL RESTRICTIONS UNDER THE SECURITIES LAWS OF A SUBSTANTIAL
PROPORTION OF THE SEVERAL STATES OF THE UNITED STATES.
(C) IN CONNECTION WITH THE REGISTERED EXCHANGE OFFER, THE COMPANY
SHALL:
i) 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;
ii) KEEP THE REGISTERED EXCHANGE OFFER OPEN FOR ACCEPTANCE FOR
NOT LESS THAN 30 DAYS AND NOT MORE THAN 45 DAYS (OR LONGER IF REQUIRED
BY APPLICABLE LAW) AFTER THE DATE NOTICE THEREOF IS MAILED TO THE
HOLDERS;
iii) USE THE SERVICES OF A DEPOSITARY FOR THE REGISTERED EXCHANGE
OFFER WITH AN ADDRESS IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK;
AND
iv) COMPLY IN ALL RESPECTS WITH ALL APPLICABLE LAWS RELATING TO
THE REGISTERED EXCHANGE OFFER.
(D) AS SOON AS PRACTICABLE AFTER THE CLOSE OF THE REGISTERED
EXCHANGE OFFER, THE COMPANY SHALL:
i) ACCEPT FOR EXCHANGE ALL NOTES DULY TENDERED PURSUANT TO THE
REGISTERED EXCHANGE OFFER AND NOT VALIDLY WITHDRAWN BY THE HOLDER
THEREOF;
ii) DELIVER TO THE TRUSTEE FOR CANCELLATION ALL NOTES SO ACCEPTED
FOR EXCHANGE; AND
iii) CAUSE THE TRUSTEE OR THE NEW NOTES TRUSTEE, AS THE CASE MAY
BE, PROMPTLY TO AUTHENTICATE AND DELIVER TO EACH HOLDER OF NOTES NEW
NOTES HAVING A PRINCIPAL AMOUNT EQUAL TO THE PRINCIPAL AMOUNT OF THE
NOTES OF SUCH HOLDER SO ACCEPTED FOR EXCHANGE.
(E) THE INITIAL PURCHASERS AND THE COMPANY ACKNOWLEDGE THAT,
PURSUANT TO INTERPRETATIONS BY THE STAFF OF THE COMMISSION OF SECTION 5 OF THE
SECURITIES ACT, AND IN THE ABSENCE OF AN APPLICABLE EXEMPTION THEREFROM, EACH
EXCHANGING DEALER IS REQUIRED TO DELIVER A PROSPECTUS IN CONNECTION WITH A SALE
OF ANY NEW NOTES RECEIVED BY SUCH EXCHANGING DEALER PURSUANT TO THE REGISTERED
EXCHANGE OFFER IN EXCHANGE FOR NOTES ACQUIRED FOR ITS OWN ACCOUNT AS A RESULT OF
MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES. ACCORDINGLY, THE COMPANY
SHALL:
i) INCLUDE THE INFORMATION SET FORTH IN ANNEX A HERETO ON THE
COVER OF THE PROSPECTUS FORMING A PART OF THE EXCHANGE OFFER
REGISTRATION STATEMENT, IN ANNEX B HERETO IN THE FOREPART OF THE
EXCHANGE OFFER REGISTRATION STATEMENT IN A SECTION SETTING FORTH DETAILS
OF THE REGISTERED EXCHANGE OFFER, IN ANNEX C HERETO IN THE UNDERWRITING
OR PLAN OF DISTRIBUTION SECTION OF THE PROSPECTUS FORMING A PART OF THE
EXCHANGE OFFER REGISTRATION STATEMENT, AND IN ANNEX D HERETO IN THE
LETTER OF TRANSMITTAL DELIVERED PURSUANT TO THE REGISTERED EXCHANGE
OFFER; AND
ii) USE ITS BEST EFFORTS TO KEEP THE EXCHANGE OFFER REGISTRATION
STATEMENT CONTINUOUSLY EFFECTIVE UNDER THE SECURITIES ACT DURING THE
EXCHANGE OFFER REGISTRATION PERIOD FOR DELIVERY OF THE PROSPECTUS
INCLUDED THEREIN BY EXCHANGING DEALERS IN CONNECTION WITH SALES OF NEW
NOTES RECEIVED PURSUANT TO THE REGISTERED EXCHANGE OFFER, AS
CONTEMPLATED BY SECTION 5(H) BELOW.
(F) IF ANY INITIAL PURCHASER DETERMINES THAT IT IS NOT ELIGIBLE
TO PARTICIPATE IN THE REGISTERED EXCHANGE OFFER WITH RESPECT TO THE EXCHANGE OF
NOTES CONSTITUTING ANY PORTION OF AN UNSOLD ALLOTMENT, UPON THE EFFECTIVENESS OF
THE SHELF REGISTRATION STATEMENT AS CONTEMPLATED BY SECTION 3 HEREOF AND AT THE
REQUEST OF SUCH INITIAL PURCHASER, THE COMPANY SHALL ISSUE AND DELIVER TO SUCH
INITIAL PURCHASER, OR TO THE PARTY PURCHASING NEW NOTES
REGISTERED UNDER THE SHELF REGISTRATION STATEMENT FROM SUCH INITIAL PURCHASER,
IN EXCHANGE FOR SUCH NOTES, A LIKE PRINCIPAL AMOUNT OF NEW NOTES. THE COMPANY
SHALL USE ITS BEST EFFORTS TO CAUSE THE CUSIP SERVICE BUREAU TO ISSUE THE SAME
CUSIP NUMBER FOR SUCH NEW NOTES AS FOR NEW NOTES ISSUED PURSUANT TO THE
REGISTERED EXCHANGE OFFER.
3. SHELF REGISTRATION. IF, (I) BECAUSE OF ANY CHANGE IN LAW OR
APPLICABLE INTERPRETATIONS THEREOF BY THE COMMISSION'S STAFF, THE COMPANY
DETERMINES UPON ADVICE OF ITS OUTSIDE COUNSEL THAT IT IS NOT PERMITTED TO EFFECT
THE REGISTERED EXCHANGE OFFER AS CONTEMPLATED BY SECTION 2 HEREOF, OR (II) THE
REGISTERED EXCHANGE OFFER IS NOT CONSUMMATED ON OR PRIOR TO DECEMBER 15, 1996,
OR (III) ANY INITIAL PURCHASER SO REQUESTS WITH RESPECT TO NOTES HELD BY IT
FOLLOWING CONSUMMATION OF THE REGISTERED EXCHANGE OFFER, OR (IV) ANY HOLDER
(OTHER THAN THE INITIAL PURCHASERS) IS NOT ELIGIBLE TO PARTICIPATE IN THE
REGISTERED EXCHANGE OFFER OR THE NEW NOTES SUCH HOLDER WOULD RECEIVE IN THE
REGISTERED EXCHANGE OFFER COULD ONLY BE REOFFERED AND RESOLD BY SUCH HOLDER UPON
COMPLIANCE WITH THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE
SECURITIES ACT, OR (V) IN THE CASE WHERE ANY INITIAL PURCHASER PARTICIPATES IN
THE REGISTERED EXCHANGE OFFER OR ACQUIRES NEW NOTES PURSUANT TO SECTION 2(F)
HEREOF, SUCH INITIAL PURCHASER DOES NOT RECEIVE FREELY TRADEABLE NEW NOTES IN
EXCHANGE FOR NOTES CONSTITUTING ANY PORTION OF AN UNSOLD ALLOTMENT (IT BEING
UNDERSTOOD THAT, FOR PURPOSES OF THIS SECTION 3, (X) THE REQUIREMENT THAT AN
INITIAL PURCHASER DELIVER A PROSPECTUS CONTAINING THE INFORMATION REQUIRED BY
ITEMS 507 AND/OR 508 OF REGULATION S-K UNDER THE SECURITIES ACT IN CONNECTION
WITH SALES OF NEW NOTES ACQUIRED IN EXCHANGE FOR SUCH NOTES SHALL RESULT IN SUCH
NEW NOTES BEING NOT "FREELY TRADEABLE" AND (Y) THE REQUIREMENT THAT AN
EXCHANGING DEALER DELIVER A PROSPECTUS IN CONNECTION WITH SALES OF NEW NOTES
ACQUIRED IN THE REGISTERED EXCHANGE OFFER IN EXCHANGE FOR NOTES ACQUIRED AS A
RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES SHALL NOT RESULT
IN SUCH NEW NOTES BEING NOT "FREELY TRADEABLE"), THE FOLLOWING PROVISIONS SHALL
APPLY:
(A) THE COMPANY SHALL, AT ITS EXPENSE, AS PROMPTLY AS PRACTICABLE
(BUT IN NO EVENT MORE THAN 60 DAYS AFTER SO REQUIRED OR REQUESTED PURSUANT TO
THIS SECTION 3), FILE WITH THE COMMISSION A SHELF REGISTRATION STATEMENT
RELATING TO THE OFFER AND SALE OF THE NOTES OR THE NEW NOTES, AS APPLICABLE, BY
THE HOLDERS FROM TIME TO TIME IN ACCORDANCE WITH THE METHODS OF DISTRIBUTION
ELECTED BY SUCH HOLDERS AND SET FORTH IN SUCH SHELF REGISTRATION STATEMENT AND
RULE 415 UNDER THE SECURITIES ACT, PROVIDED, THAT WITH RESPECT TO NEW NOTES
RECEIVED BY ANY INITIAL PURCHASER IN EXCHANGE FOR NOTES CONSTITUTING ANY PORTION
OF AN UNSOLD ALLOTMENT, THE COMPANY MAY, IF PERMITTED BY CURRENT INTERPRETATIONS
BY THE COMMISSION'S STAFF, FILE A POST-EFFECTIVE AMENDMENT TO THE EXCHANGE OFFER
REGISTRATION STATEMENT CONTAINING THE INFORMATION REQUIRED BY REGULATION S-K
ITEMS 507 AND/OR 508, AS APPLICABLE, IN SATISFACTION OF ITS OBLIGATIONS UNDER
THIS PARAGRAPH (A) WITH RESPECT THERETO, AND ANY SUCH EXCHANGE OFFER
REGISTRATION STATEMENT, AS SO AMENDED, SHALL BE REFERRED TO HEREIN AS, AND
GOVERNED BY THE PROVISIONS HEREIN APPLICABLE TO, A SHELF REGISTRATION STATEMENT.
(B) THE COMPANY SHALL USE ITS BEST EFFORTS TO CAUSE THE SHELF
REGISTRATION STATEMENT TO BE DECLARED EFFECTIVE UNDER THE SECURITIES ACT ON OR
PRIOR TO 45 DAYS AFTER FILING SUCH SHELF REGISTRATION STATEMENT PURSUANT TO THIS
SECTION 3 AND TO KEEP SUCH SHELF REGISTRATION STATEMENT CONTINUOUSLY EFFECTIVE
IN ORDER TO PERMIT THE PROSPECTUS CONTAINED THEREIN TO BE USABLE BY HOLDERS FOR
A PERIOD OF THREE YEARS FROM THE DATE THE SHELF REGISTRATION STATEMENT IS
DECLARED EFFECTIVE BY THE COMMISSION OR SUCH SHORTER PERIOD THAT WILL TERMINATE
WHEN ALL THE NOTES OR NEW NOTES, AS APPLICABLE, COVERED BY THE SHELF
REGISTRATION STATEMENT HAVE BEEN SOLD PURSUANT TO THE SHELF REGISTRATION
STATEMENT (IN ANY SUCH CASE, SUCH PERIOD BEING CALLED THE "SHELF REGISTRATION
PERIOD"). THE COMPANY SHALL BE DEEMED NOT TO HAVE USED ITS BEST EFFORTS TO KEEP
THE SHELF REGISTRATION STATEMENT EFFECTIVE DURING THE REQUISITE PERIOD IF IT
VOLUNTARILY TAKES ANY ACTION THAT WOULD RESULT IN HOLDERS OF NOTES COVERED
THEREBY NOT BEING ABLE TO OFFER AND SELL SUCH NOTES 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 THE ACQUISITION OR
DIVESTITURE OF ASSETS, SO LONG AS THE COMPANY PROMPTLY THEREAFTER COMPLIES WITH
THE REQUIREMENTS OF SECTION 5(K) HEREOF, IF APPLICABLE.
4. LIQUIDATED DAMAGES. IF (I) EITHER THE EXCHANGE OFFER
REGISTRATION STATEMENT OR THE SHELF REGISTRATION STATEMENT IS NOT FILED WITH THE
COMMISSION ON OR PRIOR TO THE DATE SPECIFIED FOR SUCH FILING IN THIS AGREEMENT,
(II) EITHER THE EXCHANGE OFFER REGISTRATION STATEMENT OR THE SHELF REGISTRATION
STATEMENT HAS NOT BEEN DECLARED EFFECTIVE BY THE COMMISSION ON OR PRIOR TO THE
TARGET DATE SPECIFIED FOR SUCH EFFECTIVENESS IN THIS AGREEMENT (THE
"EFFECTIVENESS TARGET DATE"), (III) THE EXCHANGE OFFER HAS NOT BEEN CONSUMMATED
WITHIN 30 DAYS AFTER THE EFFECTIVENESS TARGET DATE WITH RESPECT TO THE EXCHANGE
OFFER REGISTRATION STATEMENT OR (IV) EITHER THE EXCHANGE OFFER REGISTRATION
STATEMENT OR THE SHELF REGISTRATION STATEMENT IS FILED AND DECLARED EFFECTIVE
BUT THEREAFTER CEASES TO BE EFFECTIVE DURING THE APPLICABLE EXCHANGE OFFER
REGISTRATION PERIOD OR SHELF REGISTRATION PERIOD, AS THE CASE MAY BE (EACH SUCH
EVENT REFERRED TO IN CLAUSES (I) THROUGH (IV), A "REGISTRATION DEFAULT"), THE
COMPANY HEREBY AGREES TO PAY LIQUIDATED DAMAGES ("LIQUIDATED DAMAGES") TO EACH
HOLDER OF NOTES WITH RESPECT TO THE FIRST 90-DAY PERIOD IMMEDIATELY FOLLOWING
THE OCCURRENCE OF SUCH REGISTRATION DEFAULT IN AN AMOUNT EQUAL TO $.05 PER WEEK
PER $1,000 PRINCIPAL AMOUNT OF NOTES HELD BY SUCH HOLDER FOR EACH WEEK OR
PORTION THEREOF DURING WHICH SUCH REGISTRATION DEFAULT CONTINUES. THE AMOUNT OF
THE LIQUIDATED DAMAGES PAYABLE TO EACH HOLDER FOR SUCH REGISTRATION DEFAULT WILL
INCREASE BY AN ADDITIONAL $.05 PER WEEK PER $1,000 IN PRINCIPAL AMOUNT OF NOTES
HELD BY SUCH HOLDER WITH RESPECT TO EACH SUBSEQUENT 90-DAY PERIOD UNTIL SUCH
REGISTRATION DEFAULT HAS BEEN CURED, UP TO AN AGGREGATE MAXIMUM AMOUNT OF
LIQUIDATED DAMAGES OF $.30 PER WEEK PER $1,000 PRINCIPAL AMOUNT OF NOTES FOR ALL
REGISTRATION DEFAULTS. ALL ACCRUED LIQUIDATED DAMAGES WILL BE PAID BY THE
COMPANY ON EACH INTEREST PAYMENT DATE (AS SUCH TERM IS DEFINED IN THE INDENTURE)
TO THE HOLDERS OF RECORD WITH RESPECT TO SUCH INTEREST PAYMENT DATE BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS OR BY FEDERAL FUNDS CHECK. LIQUIDATED
DAMAGES PAYABLE (A) WITH RESPECT TO THE REGISTRATION DEFAULT SPECIFIED IN CLAUSE
(I) ABOVE, SHALL CEASE TO ACCRUE UPON FILING OF THE EXCHANGE OFFER REGISTRATION
STATEMENT (AND, IF APPLICABLE, THE SHELF REGISTRATION STATEMENT), (B) WITH
RESPECT TO THE REGISTRATION DEFAULT SPECIFIED IN CLAUSE (II) ABOVE, SHALL CEASE
TO ACCRUE UPON THE EFFECTIVENESS OF THE EXCHANGE OFFER REGISTRATION STATEMENT
(AND, IF APPLICABLE, THE SHELF REGISTRATION STATEMENT), (C) WITH
RESPECT TO THE REGISTRATION DEFAULT SPECIFIED IN CLAUSE (III) ABOVE, SHALL CEASE
TO ACCRUE UPON CONSUMMATION OF THE EXCHANGE OFFER, AND (D) WITH RESPECT TO THE
REGISTRATION DEFAULT SPECIFIED IN CLAUSE (IV) ABOVE, SHALL CEASE TO ACCRUE UPON
THE FILING OF A POST-EFFECTIVE AMENDMENT TO THE REGISTRATION STATEMENT THAT
CAUSES THE EXCHANGE OFFER REGISTRATION STATEMENT (AND, IF APPLICABLE, THE SHELF
REGISTRATION STATEMENT) AGAIN TO BE DECLARED EFFECTIVE, AS THE CASE MAY BE.
FOLLOWING THE CURE OF ALL REGISTRATION DEFAULTS, THE ACCRUAL OF LIQUIDATED
DAMAGES WILL CEASE, AND ALL ACCRUED AND UNPAID LIQUIDATED DAMAGES SHALL BE PAID
TO HOLDERS OF NOTES PROMPTLY THEREAFTER.
THE COMPANY SHALL NOTIFY THE TRUSTEE WITHIN FIVE DAYS AFTER THE
OCCURRENCE OF EACH AND EVERY REGISTRATION DEFAULT. THE PARTIES HERETO AGREE THAT
THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION 4 CONSTITUTE A REASONABLE
ESTIMATE OF THE DAMAGES THAT WILL BE INCURRED BY HOLDERS BY REASON OF ANY
REGISTRATION DEFAULT.
5. REGISTRATION PROCEDURES. IN CONNECTION WITH ANY SHELF
REGISTRATION STATEMENT AND, TO THE EXTENT APPLICABLE, ANY EXCHANGE OFFER
REGISTRATION STATEMENT, THE FOLLOWING PROVISIONS SHALL APPLY:
(A) THE COMPANY SHALL FURNISH TO THE INITIAL PURCHASERS, PRIOR TO
THE FILING THEREOF WITH THE COMMISSION, A COPY OF ANY REGISTRATION STATEMENT,
AND EACH AMENDMENT THEREOF AND EACH AMENDMENT OR SUPPLEMENT, IF ANY, TO THE
PROSPECTUS INCLUDED THEREIN AND SHALL USE ITS BEST EFFORTS TO REFLECT IN EACH
SUCH DOCUMENT, WHEN SO FILED WITH THE COMMISSION, SUCH COMMENTS AS THE INITIAL
PURCHASERS REASONABLY MAY PROPOSE.
(B) THE COMPANY SHALL ENSURE THAT:
i) ANY REGISTRATION STATEMENT AND ANY AMENDMENT THERETO AND ANY
PROSPECTUS CONTAINED THEREIN AND ANY AMENDMENT OR SUPPLEMENT THERETO
COMPLIES IN ALL MATERIAL RESPECTS WITH THE SECURITIES ACT AND THE RULES
AND REGULATIONS THEREUNDER;
ii) ANY 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 REGISTRATION STATEMENT,
INCLUDING ANY AMENDMENT OR SUPPLEMENT TO SUCH PROSPECTUS, DOES NOT
INCLUDE AN UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A
MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN
LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
(C) (1) THE COMPANY SHALL ADVISE THE INITIAL PURCHASERS AND, IN
THE CASE OF A SHELF REGISTRATION STATEMENT, THE HOLDERS OF NOTES COVERED
THEREBY, AND, IF REQUESTED BY THE INITIAL PURCHASERS OR ANY SUCH HOLDER, CONFIRM
SUCH ADVICE IN WRITING:
i) WHEN A REGISTRATION STATEMENT AND ANY AMENDMENT THERETO HAS
BEEN FILED WITH THE COMMISSION AND WHEN THE REGISTRATION STATEMENT OR
ANY POST-EFFECTIVE AMENDMENT THERETO HAS BECOME EFFECTIVE; AND
ii) OF ANY REQUEST BY THE COMMISSION FOR AMENDMENTS OR
SUPPLEMENTS TO THE REGISTRATION STATEMENT OR THE PROSPECTUS INCLUDED
THEREIN OR FOR ADDITIONAL INFORMATION.
(2) DURING THE SHELF REGISTRATION PERIOD OR THE EXCHANGE OFFER
REGISTRATION PERIOD, AS APPLICABLE, THE COMPANY SHALL ADVISE THE INITIAL
PURCHASERS AND, IN THE CASE OF A SHELF REGISTRATION STATEMENT, THE HOLDERS OF
NOTES COVERED THEREBY, AND, IN THE CASE OF AN EXCHANGE OFFER REGISTRATION
STATEMENT, ANY EXCHANGING DEALER THAT HAS PROVIDED IN WRITING TO THE COMPANY A
TELEPHONE OR FACSIMILE NUMBER AND ADDRESS FOR NOTICES, AND, IF REQUESTED BY THE
INITIAL PURCHASERS OR ANY SUCH HOLDER OR EXCHANGING DEALER, CONFIRM SUCH ADVICE
IN WRITING:
i) 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;
ii) OF THE RECEIPT BY THE COMPANY OF ANY NOTIFICATION WITH
RESPECT TO THE SUSPENSION OF THE QUALIFICATION OF THE NOTES INCLUDED
THEREIN FOR SALE IN ANY JURISDICTION OR THE INITIATION OR THREATENING
OF ANY PROCEEDING FOR SUCH PURPOSE; AND
iii) OF THE HAPPENING OF ANY EVENT THAT REQUIRES THE MAKING OF
ANY CHANGES IN THE REGISTRATION STATEMENT OR THE PROSPECTUS SO THAT, AS
OF SUCH DATE, THE REGISTRATION STATEMENT OR THE PROSPECTUS DOES NOT
INCLUDE AN UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A
MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS THEREIN (IN THE CASE OF
THE PROSPECTUS, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE) NOT MISLEADING (IN THE CASE OF THE PROSPECTUS, WHICH ADVICE SHALL
BE ACCOMPANIED BY AN INSTRUCTION TO SUSPEND THE USE OF THE PROSPECTUS
UNTIL THE REQUISITE CHANGES HAVE BEEN MADE).
(D) THE COMPANY SHALL USE ITS BEST EFFORTS TO OBTAIN THE
WITHDRAWAL OF ANY ORDER SUSPENDING THE EFFECTIVENESS OF ANY REGISTRATION
STATEMENT AT THE EARLIEST POSSIBLE TIME.
(E) THE COMPANY SHALL FURNISH TO EACH HOLDER OF NOTES COVERED BY
ANY SHELF REGISTRATION STATEMENT, WITHOUT CHARGE, AT LEAST ONE COPY OF SUCH
SHELF REGISTRATION STATEMENT AND ANY POST-EFFECTIVE AMENDMENT THERETO, INCLUDING
FINANCIAL STATEMENTS AND SCHEDULES, AND, IF THE HOLDER SO REQUESTS IN WRITING,
ALL EXHIBITS THERETO (INCLUDING THOSE INCORPORATED BY REFERENCE).
(F) THE COMPANY SHALL, DURING THE SHELF REGISTRATION PERIOD,
DELIVER TO EACH HOLDER OF NOTES COVERED BY ANY SHELF REGISTRATION STATEMENT,
WITHOUT CHARGE, AS MANY COPIES OF THE PROSPECTUS (INCLUDING EACH PRELIMINARY
PROSPECTUS) INCLUDED IN SUCH SHELF REGISTRATION STATEMENT AND ANY AMENDMENT OR
SUPPLEMENT THERETO AS SUCH HOLDER MAY REASONABLY REQUEST; AND THE COMPANY
CONSENTS TO THE USE OF THE PROSPECTUS OR ANY
AMENDMENT OR SUPPLEMENT THERETO BY EACH OF THE SELLING HOLDERS OF NOTES IN
CONNECTION WITH THE OFFERING AND SALE OF THE NOTES COVERED BY THE PROSPECTUS OR
ANY AMENDMENT OR SUPPLEMENT THERETO.
(G) THE COMPANY SHALL FURNISH TO EACH EXCHANGING DEALER THAT 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, ANY DOCUMENTS INCORPORATED BY REFERENCE THEREIN AND,
IF THE EXCHANGING DEALER SO REQUESTS IN WRITING, ALL EXHIBITS THERETO (INCLUDING
THOSE INCORPORATED BY REFERENCE).
(H) THE COMPANY SHALL, DURING THE EXCHANGE OFFER REGISTRATION
PERIOD, PROMPTLY DELIVER TO EACH EXCHANGING DEALER, WITHOUT CHARGE, AS MANY
COPIES OF THE PROSPECTUS INCLUDED IN SUCH EXCHANGE OFFER REGISTRATION STATEMENT
AND ANY AMENDMENT OR SUPPLEMENT THERETO AS SUCH EXCHANGING DEALER MAY REASONABLY
REQUEST FOR DELIVERY IN CONNECTION WITH A SALE OF NEW NOTES RECEIVED BY IT
PURSUANT TO THE REGISTERED EXCHANGE OFFER; AND THE COMPANY CONSENTS TO THE USE
OF THE PROSPECTUS OR ANY AMENDMENT OR SUPPLEMENT THERETO BY ANY SUCH EXCHANGING
DEALER, AS PROVIDED IN SECTION (2)(E) ABOVE.
(I) PRIOR TO THE REGISTERED EXCHANGE OFFER OR ANY OTHER OFFERING
OF NOTES PURSUANT TO ANY REGISTRATION STATEMENT, THE COMPANY SHALL REGISTER OR
QUALIFY OR COOPERATE WITH THE HOLDERS OF NOTES INCLUDED THEREIN AND THEIR
RESPECTIVE COUNSEL IN CONNECTION WITH THE REGISTRATION OR QUALIFICATION OF SUCH
NOTES FOR OFFER AND SALE UNDER THE SECURITIES OR BLUE SKY LAWS OF SUCH STATES AS
ANY SUCH HOLDERS REASONABLY REQUEST IN WRITING AND DO ANY AND ALL OTHER ACTS OR
THINGS NECESSARY OR ADVISABLE TO ENABLE THE OFFER AND SALE IN SUCH STATES OF THE
NOTES COVERED BY SUCH REGISTRATION STATEMENT; PROVIDED, HOWEVER, THAT THE
COMPANY WILL NOT BE REQUIRED TO QUALIFY AS A FOREIGN CORPORATION OR AS A DEALER
IN SECURITIES IN ANY JURISDICTION IN WHICH IT IS NOT THEN SO QUALIFIED, TO FILE
ANY GENERAL CONSENT TO SERVICE OF PROCESS OR TO TAKE ANY ACTION THAT WOULD
SUBJECT IT TO GENERAL SERVICE OF PROCESS IN ANY SUCH JURISDICTION WHERE IT IS
NOT THEN SO SUBJECT OR TO SUBJECT ITSELF TO TAXATION IN RESPECT OF DOING
BUSINESS IN ANY JURISDICTION IN WHICH IT IS NOT OTHERWISE SO SUBJECT.
(J) THE COMPANY SHALL COOPERATE WITH THE HOLDERS TO FACILITATE
THE TIMELY PREPARATION AND DELIVERY OF CERTIFICATES REPRESENTING NOTES TO BE
SOLD PURSUANT TO ANY REGISTRATION STATEMENT FREE OF ANY RESTRICTIVE LEGENDS AND
IN DENOMINATIONS OF $1,000 OR AN INTEGRAL MULTIPLE THEREOF AND REGISTERED IN
SUCH NAMES AS HOLDERS MAY REQUEST PRIOR TO SALES OF NOTES PURSUANT TO SUCH
REGISTRATION STATEMENT.
(K) UPON THE OCCURRENCE OF ANY EVENT CONTEMPLATED BY PARAGRAPH
(C)(2)(III) OF THIS SECTION 5, THE COMPANY SHALL PROMPTLY PREPARE AND FILE A
POST-EFFECTIVE AMENDMENT TO ANY REGISTRATION STATEMENT OR AN AMENDMENT OR
SUPPLEMENT TO THE RELATED PROSPECTUS OR ANY OTHER REQUIRED DOCUMENT SO THAT, AS
THEREAFTER DELIVERED TO PURCHASERS OF THE NOTES INCLUDED THEREIN, THE PROSPECTUS
WILL NOT INCLUDE AN UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY
MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS THEREIN, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
(L) NOT LATER THAN THE EFFECTIVE DATE OF ANY SUCH REGISTRATION
STATEMENT HEREUNDER, THE COMPANY SHALL PROVIDE A CUSIP NUMBER FOR THE NOTES OR
NEW NOTES, AS THE CASE MAY BE, REGISTERED UNDER SUCH REGISTRATION STATEMENT, AND
PROVIDE THE APPLICABLE TRUSTEE WITH PRINTED CERTIFICATES FOR SUCH NOTES OR NEW
NOTES, IN A FORM ELIGIBLE FOR DEPOSIT WITH THE DEPOSITORY TRUST COMPANY.
(M) THE COMPANY SHALL USE ITS BEST EFFORTS TO COMPLY WITH ALL
APPLICABLE RULES AND REGULATIONS OF THE COMMISSION AND SHALL MAKE GENERALLY
AVAILABLE TO ITS SECURITY HOLDERS AS SOON AS PRACTICABLE AFTER THE EFFECTIVE
DATE OF THE APPLICABLE REGISTRATION STATEMENT AN EARNINGS STATEMENT SATISFYING
THE PROVISIONS OF SECTION 11(A) OF THE SECURITIES ACT.
(N) THE COMPANY SHALL CAUSE THE INDENTURE OR THE NEW NOTES
INDENTURE, AS THE CASE MAY BE, TO BE QUALIFIED UNDER THE TRUST INDENTURE ACT OF
1939, AS AMENDED (THE "TRUST INDENTURE ACT"), IN A TIMELY MANNER.
(O) THE COMPANY MAY REQUIRE EACH HOLDER OF NOTES TO BE SOLD
PURSUANT TO ANY SHELF REGISTRATION STATEMENT TO FURNISH TO THE COMPANY SUCH
INFORMATION REGARDING THE HOLDER AND THE DISTRIBUTION OF SUCH NOTES AS THE
COMPANY MAY FROM TIME TO TIME REASONABLY REQUIRE FOR INCLUSION IN SUCH
REGISTRATION STATEMENT.
(P) THE COMPANY SHALL, IF REQUESTED, PROMPTLY INCORPORATE IN A
PROSPECTUS SUPPLEMENT OR POST-EFFECTIVE AMENDMENT TO A SHELF REGISTRATION
STATEMENT, SUCH INFORMATION AS THE MANAGING UNDERWRITERS, IF ANY, AND THE
MAJORITY HOLDERS REASONABLY AGREE SHOULD BE INCLUDED THEREIN, AND SHALL MAKE ALL
REQUIRED FILINGS OF SUCH PROSPECTUS SUPPLEMENT OR POST-EFFECTIVE AMENDMENT
PROMPTLY UPON NOTIFICATION OF THE MATTERS TO BE INCORPORATED IN SUCH PROSPECTUS
SUPPLEMENT OR POST-EFFECTIVE AMENDMENT.
(Q) IN THE CASE OF ANY SHELF REGISTRATION STATEMENT, THE COMPANY
SHALL ENTER INTO SUCH AGREEMENTS (INCLUDING UNDERWRITING AGREEMENTS) AND TAKE
ALL OTHER APPROPRIATE ACTIONS IN ORDER TO EXPEDITE OR TO FACILITATE THE
REGISTRATION OR THE DISPOSITION OF ANY NOTES INCLUDED THEREIN, AND, IN
CONNECTION THEREWITH, IF AN UNDERWRITING AGREEMENT IS ENTERED INTO, CAUSE THE
SAME TO CONTAIN INDEMNIFICATION PROVISIONS AND PROCEDURES NO LESS FAVORABLE THAN
THOSE SET FORTH IN SECTION 7 HEREOF (OR SUCH OTHER PROVISIONS AND PROCEDURES
ACCEPTABLE TO THE MAJORITY HOLDERS AND THE MANAGING UNDERWRITERS, IF ANY) WITH
RESPECT TO ALL PARTIES TO BE INDEMNIFIED PURSUANT TO SECTION 7 HEREOF.
(R) IN THE CASE OF ANY SHELF REGISTRATION STATEMENT, THE COMPANY
SHALL:
i) MAKE REASONABLY AVAILABLE FOR INSPECTION BY THE HOLDERS OF
NOTES TO BE REGISTERED THEREUNDER, ANY UNDERWRITER PARTICIPATING IN ANY
DISPOSITION PURSUANT TO SUCH SHELF REGISTRATION STATEMENT, AND ANY
ATTORNEY, ACCOUNTANT OR OTHER AGENT RETAINED BY THE HOLDERS OR ANY SUCH
UNDERWRITER ALL RELEVANT FINANCIAL AND OTHER RECORDS, PERTINENT
CORPORATE DOCUMENTS AND PROPERTIES OF THE COMPANY AND ITS SUBSIDIARIES;
ii) CAUSE THE COMPANY'S OFFICERS, DIRECTORS AND EMPLOYEES TO
SUPPLY ALL RELEVANT INFORMATION REASONABLY REQUESTED BY THE HOLDERS OR
ANY SUCH UNDERWRITER, ATTORNEY, ACCOUNTANT OR AGENT IN CONNECTION WITH
ANY SUCH REGISTRATION STATEMENT AS IS CUSTOMARY FOR SIMILAR DUE
DILIGENCE EXAMINATIONS AND MAKE SUCH REPRESENTATIVES OF THE COMPANY AS
SHALL BE REASONABLY REQUESTED BY THE INITIAL PURCHASERS AVAILABLE FOR
DISCUSSION OF ANY SUCH REGISTRATION STATEMENT; PROVIDED, HOWEVER, THAT
ANY INFORMATION THAT IS DESIGNATED IN WRITING BY THE COMPANY, IN GOOD
FAITH, AS CONFIDENTIAL AT THE TIME OF DELIVERY OF SUCH INFORMATION
SHALL BE KEPT CONFIDENTIAL BY THE HOLDERS OR ANY SUCH UNDERWRITER,
ATTORNEY, ACCOUNTANT OR AGENT, UNLESS DISCLOSURE OF SUCH INFORMATION IS
MADE IN CONNECTION WITH A COURT PROCEEDING OR REQUIRED BY LAW, OR SUCH
INFORMATION BECOMES AVAILABLE TO THE PUBLIC GENERALLY OR THROUGH A
THIRD PARTY WITHOUT AN ACCOMPANYING OBLIGATION OF CONFIDENTIALITY OTHER
THAN AS A RESULT OF A DISCLOSURE OF SUCH INFORMATION BY ANY SUCH
HOLDER, UNDERWRITER, ATTORNEY, ACCOUNTANT OR AGENT;
iii) MAKE SUCH REPRESENTATIONS AND WARRANTIES TO THE HOLDERS OF
NOTES REGISTERED THEREUNDER AND THE UNDERWRITERS, IF ANY, IN FORM,
SUBSTANCE AND SCOPE AS ARE CUSTOMARILY MADE BY ISSUERS TO UNDERWRITERS
IN SIMILAR UNDERWRITTEN OFFERINGS AS MAY BE REASONABLY REQUESTED BY
THEM;
iv) OBTAIN OPINIONS OF COUNSEL TO THE COMPANY AND UPDATES THEREOF
(WHICH COUNSEL AND OPINIONS (IN FORM, SCOPE AND SUBSTANCE) SHALL BE
REASONABLY SATISFACTORY TO THE MANAGING UNDERWRITERS, IF ANY) ADDRESSED
TO EACH SELLING HOLDER AND THE UNDERWRITERS, IF ANY, COVERING SUCH
MATTERS AS ARE CUSTOMARILY COVERED IN OPINIONS REQUESTED IN SIMILAR
UNDERWRITTEN OFFERINGS AND SUCH OTHER MATTERS AS MAY BE REASONABLY
REQUESTED BY SUCH HOLDERS AND UNDERWRITERS;
v) OBTAIN "COLD COMFORT" LETTERS AND UPDATES THEREOF FROM THE
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS OF THE COMPANY (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 AND FINANCIAL DATA ARE, OR ARE REQUIRED
TO BE, INCLUDED IN THE REGISTRATION STATEMENT) ADDRESSED TO THE
UNDERWRITERS, IF ANY, AND USE REASONABLE EFFORTS TO HAVE SUCH LETTERS
AND UPDATES THEREOF ADDRESSED TO THE SELLING HOLDERS OF NOTES
REGISTERED THEREUNDER (TO THE EXTENT CONSISTENT WITH STATEMENT ON
AUDITING STANDARDS NO. 72 OF THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC
ACCOUNTANTS (AICPA) ("SAS 72")), IN CUSTOMARY FORM AND COVERING MATTERS
OF THE TYPE CUSTOMARILY COVERED IN "COLD COMFORT" LETTERS IN CONNECTION
WITH SIMILAR UNDERWRITTEN OFFERINGS, OR IF THE PROVISION OF SUCH "COLD
COMFORT" LETTERS IS NOT PERMITTED BY SAS NO. 72 OR IF REQUESTED BY THE
INITIAL PURCHASERS OR THEIR COUNSEL IN LIEU OF A "COLD COMFORT" LETTER,
AN AGREED-UPON PROCEDURES LETTER UNDER STATEMENT ON AUDITING STANDARDS
NO. 35 OF THE AICPA, COVERING MATTERS REQUESTED BY THE INITIAL
PURCHASERS OR THEIR COUNSEL; AND
vi) DELIVER SUCH DOCUMENTS AND CERTIFICATES AS MAY BE REASONABLY
REQUESTED BY THE MAJORITY HOLDERS AND THE MANAGING UNDERWRITERS, IF
ANY, AND CUSTOMARILY DELIVERED IN SIMILAR OFFERINGS, INCLUDING THOSE TO
EVIDENCE COMPLIANCE WITH SECTION 5(K) HEREOF AND WITH ANY CONDITIONS
CONTAINED IN THE UNDERWRITING AGREEMENT OR OTHER AGREEMENT ENTERED INTO
BY THE COMPANY.
THE FOREGOING ACTIONS SET FORTH IN CLAUSES (III), (IV), (V) AND
(VI) OF THIS SECTION 5(R) SHALL BE PERFORMED AT (A) THE EFFECTIVENESS OF SUCH
SHELF REGISTRATION STATEMENT AND EACH POST-EFFECTIVE AMENDMENT THERETO AND (B)
EACH CLOSING UNDER ANY UNDERWRITING OR SIMILAR AGREEMENT AS AND TO THE EXTENT
REQUIRED THEREUNDER.
(S) THE COMPANY SHALL IF AND TO THE EXTENT REQUIRED UNDER THE
SECURITIES ACT AND/OR THE TRUST INDENTURE ACT AND THE RULES AND REGULATIONS
THEREUNDER IN ORDER TO REGISTER THE NOTES (INCLUDING THE NOTE GUARANTEES) UNDER
THE SECURITIES ACT AND QUALIFY THE INDENTURE UNDER THE TRUST INDENTURE ACT,
CAUSE EACH
GUARANTOR TO SIGN ANY REGISTRATION STATEMENT AND TAKE ALL OTHER ACTION NECESSARY
TO REGISTER THE NOTE GUARANTEES UNDER THE APPLICABLE REGISTRATION STATEMENT.
6. REGISTRATION EXPENSES. THE COMPANY SHALL BEAR ALL EXPENSES
INCURRED IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER SECTIONS 2,
3, 4 AND 5 HEREOF AND, IN THE EVENT OF ANY SHELF REGISTRATION STATEMENT, WILL
REIMBURSE THE HOLDERS FOR THE REASONABLE FEES AND DISBURSEMENTS OF ONE FIRM OR
COUNSEL DESIGNATED BY THE MAJORITY HOLDERS TO ACT AS COUNSEL FOR THE HOLDERS IN
CONNECTION THEREWITH AND, IN THE CASE OF ANY EXCHANGE OFFER REGISTRATION
STATEMENT, WILL REIMBURSE THE INITIAL PURCHASERS FOR THE REASONABLE FEES AND
DISBURSEMENTS OF COUNSEL ACTING IN CONNECTION THEREWITH.
7. INDEMNIFICATION AND CONTRIBUTION. (A) IN CONNECTION WITH ANY
REGISTRATION STATEMENT, THE COMPANY AGREES TO INDEMNIFY AND HOLD HARMLESS EACH
HOLDER OF NOTES COVERED THEREBY (INCLUDING THE INITIAL PURCHASERS AND, WITH
RESPECT TO ANY PROSPECTUS DELIVERY AS CONTEMPLATED BY SECTIONS 2(E) AND 5(H)
HEREOF, EACH EXCHANGING DEALER), THE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
OF SUCH HOLDER AND EACH PERSON WHO CONTROLS SUCH HOLDER WITHIN THE MEANING OF
EITHER THE SECURITIES ACT OR THE EXCHANGE ACT, AGAINST ANY AND ALL LOSSES,
CLAIMS, DAMAGES OR LIABILITIES, JOINT OR SEVERAL, TO WHICH THEY OR ANY OF THEM
MAY BECOME SUBJECT UNDER THE SECURITIES ACT, THE EXCHANGE ACT OR OTHER FEDERAL
OR STATE STATUTORY LAW OR REGULATION, AT COMMON LAW OR OTHERWISE, INSOFAR AS
SUCH LOSSES, CLAIMS, DAMAGES OR LIABILITIES (OR ACTIONS IN RESPECT THEREOF)
ARISE OUT OF OR ARE BASED UPON ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT
OF A MATERIAL FACT CONTAINED IN SUCH REGISTRATION STATEMENT AS ORIGINALLY FILED
OR IN ANY AMENDMENT THEREOF, OR IN ANY PRELIMINARY PROSPECTUS OR PROSPECTUS, OR
IN ANY AMENDMENT THEREOF OR SUPPLEMENT THERETO, 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
THE PROSPECTUS, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE) NOT
MISLEADING, AND AGREES TO REIMBURSE EACH SUCH INDEMNIFIED PARTY, AS INCURRED,
FOR ANY LEGAL OR OTHER EXPENSES REASONABLY INCURRED BY THEM IN CONNECTION WITH
INVESTIGATING OR DEFENDING ANY SUCH LOSS, CLAIM, DAMAGE OR LIABILITY (OR ACTION
IN RESPECT THEREOF); PROVIDED, HOWEVER, THAT THE COMPANY WILL NOT BE LIABLE IN
ANY CASE TO THE EXTENT THAT ANY SUCH LOSS, CLAIM, DAMAGE OR LIABILITY ARISES OUT
OF OR IS BASED UPON ANY SUCH UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OR
OMISSION OR ALLEGED OMISSION MADE THEREIN IN RELIANCE UPON AND IN CONFORMITY
WITH WRITTEN INFORMATION FURNISHED TO THE COMPANY BY OR ON BEHALF OF ANY SUCH
HOLDER SPECIFICALLY FOR INCLUSION THEREIN. THE INDEMNIFICATION PROVIDED HEREIN
WILL BE IN ADDITION TO ANY LIABILITY THAT THE COMPANY MAY OTHERWISE HAVE.
THE COMPANY ALSO AGREES TO INDEMNIFY OR CONTRIBUTE TO LOSSES OF,
AS PROVIDED IN SECTION 7(D) HEREOF, ANY UNDERWRITERS OF NOTES REGISTERED UNDER A
SHELF REGISTRATION STATEMENT, THEIR EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS
AND EACH PERSON WHO CONTROLS SUCH UNDERWRITERS ON THE SAME BASIS AS THAT OF THE
INDEMNIFICATION OF THE INITIAL PURCHASERS AND THE SELLING HOLDERS PROVIDED IN
THIS SECTION 7(A) AND SHALL, IF REQUESTED BY ANY HOLDER, ENTER INTO AN
UNDERWRITING AGREEMENT REFLECTING SUCH AGREEMENT, AS PROVIDED IN SECTION 5(Q)
HEREOF.
(B) EACH HOLDER OF NOTES COVERED BY A REGISTRATION STATEMENT
(INCLUDING EACH INITIAL PURCHASER AND, WITH RESPECT TO ANY PROSPECTUS DELIVERY
AS CONTEMPLATED BY SECTIONS 2(E) AND 5(H) HEREOF, EACH EXCHANGING DEALER)
SEVERALLY AND NOT JOINTLY AGREES TO INDEMNIFY AND HOLD HARMLESS (I) THE COMPANY,
(II) EACH OF THE DIRECTORS OF THE COMPANY, (III) EACH OF THE OFFICERS OF THE
COMPANY WHO SIGNS SUCH REGISTRATION STATEMENT AND (IV) EACH PERSON WHO CONTROLS
THE COMPANY WITHIN THE MEANING OF EITHER THE SECURITIES ACT OR THE EXCHANGE ACT
TO THE SAME EXTENT AS THE FOREGOING INDEMNITY FROM THE COMPANY TO EACH SUCH
HOLDER, BUT ONLY WITH RESPECT TO WRITTEN INFORMATION FURNISHED TO THE COMPANY BY
OR ON BEHALF OF SUCH HOLDER SPECIFICALLY FOR INCLUSION IN THE DOCUMENTS REFERRED
TO IN THE FOREGOING INDEMNITY. THE INDEMNIFICATION PROVIDED HEREIN WILL BE IN
ADDITION TO ANY LIABILITY THAT ANY SUCH HOLDER MAY OTHERWISE HAVE.
(C) PROMPTLY AFTER RECEIPT BY AN INDEMNIFIED PARTY UNDER THIS
SECTION 7 OF NOTICE OF THE COMMENCEMENT OF ANY ACTION, SUCH INDEMNIFIED PARTY
WILL, IF A CLAIM IN RESPECT THEREOF IS TO BE MADE AGAINST THE INDEMNIFYING PARTY
UNDER THIS SECTION 7, NOTIFY THE INDEMNIFYING PARTY IN WRITING OF THE
COMMENCEMENT THEREOF; BUT THE FAILURE SO TO NOTIFY THE INDEMNIFYING PARTY (I)
WILL NOT RELIEVE THE INDEMNIFYING PARTY FROM LIABILITY UNDER PARAGRAPH (A) OR
(B) ABOVE UNLESS AND TO THE EXTENT IT DID NOT OTHERWISE LEARN OF SUCH ACTION AND
SUCH FAILURE RESULTS IN THE FORFEITURE BY THE INDEMNIFYING PARTY OF RIGHTS AND
DEFENSES, AND (II) WILL NOT, IN ANY EVENT, RELIEVE THE INDEMNIFYING PARTY FROM
ANY OBLIGATIONS TO ANY INDEMNIFIED PARTY OTHER THAN THE INDEMNIFICATION
OBLIGATION PROVIDED IN PARAGRAPH (A) OR (B) ABOVE. THE INDEMNIFYING PARTY SHALL
BE ENTITLED TO APPOINT COUNSEL (INCLUDING LOCAL COUNSEL) OF THE INDEMNIFYING
PARTY'S CHOICE AT THE INDEMNIFYING PARTY'S EXPENSE TO REPRESENT THE INDEMNIFIED
PARTY IN ANY ACTION FOR WHICH INDEMNIFICATION IS SOUGHT (IN WHICH CASE THE
INDEMNIFYING PARTY SHALL NOT THEREAFTER BE RESPONSIBLE FOR THE FEES AND EXPENSES
OF ANY SEPARATE COUNSEL RETAINED BY THE INDEMNIFIED PARTY OR PARTIES EXCEPT AS
SET FORTH BELOW); PROVIDED, HOWEVER, THAT SUCH COUNSEL SHALL BE SATISFACTORY TO
THE INDEMNIFIED PARTY. NOTWITHSTANDING THE INDEMNIFYING PARTY'S ELECTION TO
APPOINT COUNSEL TO REPRESENT THE INDEMNIFIED PARTY IN AN ACTION, THE INDEMNIFIED
PARTY SHALL HAVE THE RIGHT TO EMPLOY SEPARATE COUNSEL (INCLUDING LOCAL COUNSEL),
AND THE INDEMNIFYING PARTY SHALL BEAR THE REASONABLE FEES, COSTS AND EXPENSES OF
SUCH SEPARATE COUNSEL (AND LOCAL COUNSEL) IF (I) THE USE OF COUNSEL CHOSEN BY
THE INDEMNIFYING PARTY TO REPRESENT THE INDEMNIFIED PARTY WOULD PRESENT SUCH
COUNSEL WITH A CONFLICT OF INTEREST, (II) THE ACTUAL OR POTENTIAL DEFENDANTS IN,
OR TARGETS OF, ANY SUCH ACTION INCLUDE BOTH THE INDEMNIFIED PARTY AND THE
INDEMNIFYING PARTY AND THE INDEMNIFIED PARTY SHALL HAVE REASONABLY CONCLUDED
THAT THERE MAY BE LEGAL DEFENSES AVAILABLE TO IT AND/OR OTHER INDEMNIFIED
PARTIES THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE AVAILABLE TO THE
INDEMNIFYING PARTY, (III) THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL
SATISFACTORY TO THE INDEMNIFIED PARTY TO REPRESENT THE INDEMNIFIED PARTY WITHIN
A REASONABLE TIME AFTER NOTICE OF THE INSTITUTION OF SUCH ACTION OR (IV) THE
INDEMNIFYING PARTY SHALL AUTHORIZE THE INDEMNIFIED PARTY TO EMPLOY SEPARATE
COUNSEL AT THE EXPENSE OF THE INDEMNIFYING PARTY. WITHOUT THE PRIOR WRITTEN
CONSENT OF THE INDEMNIFIED PARTIES, AN INDEMNIFYING PARTY WILL NOT SETTLE OR
COMPROMISE OR CONSENT TO THE ENTRY OF ANY JUDGMENT WITH RESPECT TO ANY PENDING
OR THREATENED CLAIM, ACTION, SUIT OR PROCEEDING IN RESPECT OF WHICH
INDEMNIFICATION OR CONTRIBUTION MAY BE SOUGHT HEREUNDER (WHETHER OR NOT THE
INDEMNIFIED PARTIES ARE ACTUAL OR POTENTIAL PARTIES TO SUCH CLAIM OR ACTION)
UNLESS SUCH SETTLEMENT, COMPROMISE OR CONSENT INCLUDES AN UNCONDITIONAL RELEASE
OF EACH INDEMNIFIED PARTY FROM ALL LIABILITY ARISING OUT OF SUCH CLAIM, ACTION,
SUIT OR PROCEEDING.
(D) IF THE INDEMNITY PROVIDED IN PARAGRAPH (A) OR (B) OF THIS
SECTION 7 IS UNAVAILABLE TO OR INSUFFICIENT TO HOLD HARMLESS AN INDEMNIFIED
PARTY FOR ANY REASON, THEN EACH APPLICABLE INDEMNIFYING PARTY, IN LIEU OF
INDEMNIFYING SUCH INDEMNIFIED PARTY, SHALL HAVE A JOINT AND SEVERAL OBLIGATION
TO CONTRIBUTE TO THE AGGREGATE LOSSES, CLAIMS, DAMAGES AND LIABILITIES
(INCLUDING LEGAL OR OTHER EXPENSES REASONABLY INCURRED IN CONNECTION WITH
INVESTIGATING OR DEFENDING THE SAME) (COLLECTIVELY "LOSSES") TO WHICH SUCH
INDEMNIFIED PARTY MAY BE SUBJECT IN SUCH PROPORTION AS IS APPROPRIATE TO REFLECT
THE RELATIVE BENEFITS RECEIVED BY SUCH INDEMNIFYING PARTY, ON THE ONE HAND, AND
SUCH INDEMNIFIED PARTY, ON THE OTHER HAND, FROM THE INITIAL PLACEMENT AND THE
REGISTRATION STATEMENT THAT RESULTED IN SUCH LOSSES; PROVIDED, HOWEVER, THAT IN
NO CASE SHALL ANY INITIAL PURCHASER OR ANY SUBSEQUENT HOLDER OF ANY NOTE OR NEW
NOTE BE RESPONSIBLE, IN THE AGGREGATE, FOR ANY AMOUNT IN EXCESS OF THE PURCHASE
DISCOUNT OR COMMISSION APPLICABLE TO SUCH NOTE, OR IN THE CASE OF AN NEW NOTE,
APPLICABLE TO THE NOTE THAT WAS EXCHANGEABLE INTO SUCH NEW NOTE, AS SET FORTH ON
THE COVER PAGE OF THE FINAL MEMORANDUM, NOR SHALL ANY UNDERWRITER BE RESPONSIBLE
FOR ANY AMOUNT IN EXCESS OF THE UNDERWRITING DISCOUNT OR COMMISSION APPLICABLE
TO THE NOTES PURCHASED BY SUCH UNDERWRITER UNDER THE REGISTRATION STATEMENT THAT
RESULTED IN SUCH LOSSES. IF THE ALLOCATION PROVIDED BY THE IMMEDIATELY PRECEDING
SENTENCE IS UNAVAILABLE FOR ANY REASON, THE INDEMNIFYING PARTY AND THE
INDEMNIFIED PARTY SHALL CONTRIBUTE IN SUCH PROPORTION AS IS APPROPRIATE TO
REFLECT NOT ONLY SUCH RELATIVE BENEFITS BUT ALSO THE RELATIVE FAULT OF SUCH
INDEMNIFYING PARTY, ON THE ONE HAND, AND SUCH INDEMNIFIED PARTY, ON THE OTHER
HAND, IN CONNECTION WITH THE STATEMENTS OR OMISSIONS THAT RESULTED IN SUCH
LOSSES AS WELL AS ANY OTHER RELEVANT EQUITABLE CONSIDERATIONS. BENEFITS RECEIVED
BY THE COMPANY SHALL BE DEEMED TO BE EQUAL TO THE SUM OF (X) THE TOTAL NET
PROCEEDS FROM THE INITIAL PLACEMENT (BEFORE DEDUCTING EXPENSES) AS SET FORTH ON
THE COVER PAGE OF THE FINAL MEMORANDUM AND (Y) THE TOTAL AMOUNT OF LIQUIDATED
DAMAGES WHICH THE COMPANY WAS NOT REQUIRED TO PAY AS A RESULT OF REGISTERING THE
NOTES COVERED BY THE REGISTRATION STATEMENT THAT RESULTED IN SUCH LOSSES.
BENEFITS RECEIVED BY EACH INITIAL PURCHASER SHALL BE DEEMED TO BE EQUAL TO THE
PURCHASE DISCOUNTS AND COMMISSIONS AS SET FORTH ON THE COVER PAGE OF THE FINAL
MEMORANDUM RECEIVED BY SUCH INITIAL PURCHASER, AND BENEFITS RECEIVED BY ANY
OTHER HOLDERS SHALL BE DEEMED TO BE EQUAL TO THE INCREMENTAL VALUE OF RECEIVING
NOTES OR NEW NOTES, AS APPLICABLE, REGISTERED UNDER THE SECURITIES ACT OVER THE
VALUE OF RECEIVING NOTES OR NEW NOTES, AS APPLICABLE, NOT SO REGISTERED.
BENEFITS RECEIVED BY ANY UNDERWRITER SHALL BE DEEMED TO BE EQUAL TO THE TOTAL
UNDERWRITING DISCOUNTS AND COMMISSIONS, AS SET FORTH ON THE COVER PAGE OF THE
PROSPECTUS FORMING A PART OF THE REGISTRATION STATEMENT THAT RESULTED IN SUCH
LOSSES, RECEIVED BY SUCH UNDERWRITER. RELATIVE FAULT SHALL BE DETERMINED BY
REFERENCE TO WHETHER ANY ALLEGED UNTRUE STATEMENT OR OMISSION RELATES TO
INFORMATION PROVIDED BY THE INDEMNIFYING PARTY, ON THE ONE HAND, OR BY THE
INDEMNIFIED PARTY, ON THE OTHER HAND. THE PARTIES AGREE THAT IT WOULD NOT BE
JUST AND EQUITABLE IF CONTRIBUTION WERE DETERMINED BY PRO RATA ALLOCATION OR ANY
OTHER METHOD OF ALLOCATION THAT DID NOT TAKE ACCOUNT OF THE EQUITABLE
CONSIDERATIONS REFERRED TO ABOVE. NOTWITHSTANDING THE PROVISIONS OF THIS
PARAGRAPH (D), NO PERSON GUILTY OF FRAUDULENT MISREPRESENTATION (WITHIN THE
MEANING OF SECTION 11(F) OF THE SECURITIES ACT) SHALL BE ENTITLED TO
CONTRIBUTION FROM ANY PERSON WHO WAS NOT GUILTY OF SUCH FRAUDULENT
MISREPRESENTATION. FOR PURPOSES OF THIS SECTION 7, EACH PERSON WHO CONTROLS A
HOLDER WITHIN THE MEANING OF
EITHER THE SECURITIES ACT OR THE EXCHANGE ACT AND EACH DIRECTOR, OFFICER,
EMPLOYEE AND AGENT OF SUCH HOLDER SHALL HAVE THE SAME RIGHTS TO CONTRIBUTION AS
SUCH HOLDER, AND EACH PERSON WHO CONTROLS THE COMPANY WITHIN THE MEANING OF
EITHER THE SECURITIES ACT OR THE EXCHANGE ACT, EACH OFFICER OF THE COMPANY WHO
SHALL HAVE SIGNED THE REGISTRATION STATEMENT AND EACH DIRECTOR OF THE COMPANY
SHALL HAVE THE SAME RIGHTS TO CONTRIBUTION AS THE COMPANY, SUBJECT IN EACH CASE
TO THE APPLICABLE TERMS AND CONDITIONS OF THIS PARAGRAPH (D).
(E) THE PROVISIONS OF THIS SECTION 7 WILL REMAIN IN FULL FORCE
AND EFFECT, REGARDLESS OF ANY INVESTIGATION MADE BY OR ON BEHALF OF ANY HOLDER
OR THE COMPANY OR ANY OF THE OFFICERS, DIRECTORS OR CONTROLLING PERSONS REFERRED
TO IN SECTION 7 HEREOF, AND WILL SURVIVE THE SALE BY A HOLDER OF NOTES COVERED
BY A REGISTRATION STATEMENT.
8. MISCELLANEOUS.
(A) REMEDIES. EACH HOLDER, IN ADDITION TO BEING ENTITLED TO
EXERCISE ALL RIGHTS PROVIDED HEREIN, IN THE INDENTURE, OR IN THE PURCHASE
AGREEMENT OR GRANTED BY LAW, INCLUDING RECOVERY OF LIQUIDATED OR OTHER DAMAGES,
WILL BE ENTITLED TO SPECIFIC PERFORMANCE OF ITS RIGHTS UNDER THIS AGREEMENT. THE
COMPANY AGREES THAT MONETARY DAMAGES (INCLUDING THE LIQUIDATED DAMAGES
CONTEMPLATED HEREBY) WOULD NOT BE ADEQUATE COMPENSATION FOR ANY LOSS INCURRED BY
REASON OF A BREACH BY IT OF THE PROVISIONS OF THIS AGREEMENT AND HEREBY WAIVES
THE DEFENSE IN ANY ACTION FOR SPECIFIC PERFORMANCE THAT A REMEDY AT LAW WOULD BE
ADEQUATE.
(B) 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 THAT CONFLICTS WITH THE RIGHTS GRANTED TO THE HOLDERS HEREIN
OR OTHERWISE CONFLICTS WITH THE PROVISIONS HEREOF.
(C) AMENDMENTS AND WAIVERS. THE PROVISIONS OF THIS AGREEMENT,
INCLUDING THE PROVISIONS OF THIS SENTENCE, MAY NOT BE AMENDED, QUALIFIED,
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 THE HOLDERS OF AT LEAST A MAJORITY OF THE THEN-OUTSTANDING AGGREGATE
PRINCIPAL AMOUNT OF NOTES (OR, AFTER THE CONSUMMATION OF ANY EXCHANGE OFFER IN
ACCORDANCE WITH SECTION 2 HEREOF, OF NEW NOTES); PROVIDED THAT, WITH RESPECT TO
ANY MATTER THAT DIRECTLY OR INDIRECTLY AFFECTS THE RIGHTS OF THE INITIAL
PURCHASERS HEREUNDER, THE COMPANY SHALL OBTAIN THE WRITTEN CONSENT OF THE
INITIAL PURCHASERS. NOTWITHSTANDING THE FOREGOING (EXCEPT THE FOREGOING
PROVISO), A WAIVER OR CONSENT TO DEPARTURE FROM THE PROVISIONS HEREOF WITH
RESPECT TO A MATTER THAT RELATES EXCLUSIVELY TO THE RIGHTS OF HOLDERS WHOSE
NOTES ARE BEING SOLD PURSUANT TO A REGISTRATION STATEMENT AND THAT DOES NOT
DIRECTLY OR INDIRECTLY AFFECT THE RIGHTS OF OTHER HOLDERS MAY BE GIVEN BY THE
MAJORITY HOLDERS, DETERMINED ON THE BASIS OF NOTES BEING SOLD RATHER THAN
REGISTERED UNDER SUCH REGISTRATION STATEMENT.
(D) NOTICES. ALL NOTICES AND OTHER COMMUNICATIONS PROVIDED FOR OR
PERMITTED HEREUNDER SHALL BE MADE IN WRITING BY HAND-DELIVERY, FIRST-CLASS MAIL,
TELEX, TELECOPIER, OR AIR COURIER GUARANTEEING OVERNIGHT DELIVERY:
i)IF TO A HOLDER, AT THE MOST CURRENT ADDRESS GIVEN BY SUCH
HOLDER TO THE COMPANY IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION
8(D), WHICH ADDRESS INITIALLY IS, WITH RESPECT TO EACH HOLDER, THE
ADDRESS OF SUCH HOLDER MAINTAINED BY THE REGISTRAR UNDER THE INDENTURE,
WITH A COPY IN LIKE MANNER TO NATIONSBANC CAPITAL MARKETS, INC.;
ii) IF TO THE INITIAL PURCHASERS, INITIALLY AT NATIONSBANK
CORPORATE CENTER, 000 XXXXX XXXXX XXXXXX XX0-000-00-00, XXXXXXXXX,
XXXXX XXXXXXXX 28255- 0001;
iii) IF TO THE COMPANY, INITIALLY C/O THE COMPANY AT 000
XXXXXXXXXX XXXX., XXXXX XXXX, XXXXX 00000, WITH COPIES TO XXXXX, XXXXX
& XXXXXX, INC., THE COASTAL TOWER, NINE XXXXXXXX XXXXX, XXXXX 0000,
XXXXXXX, XXXXX 00000-0000, ATTENTION: XXXX X. XXXXX, XX., ESQ.
ALL SUCH NOTICES AND COMMUNICATIONS SHALL BE DEEMED TO HAVE BEEN
DULY GIVEN WHEN RECEIVED. THE INITIAL PURCHASERS, ON THE ONE HAND, OR THE
COMPANY, ON THE OTHER, BY NOTICE TO THE OTHER PARTY OR PARTIES MAY DESIGNATE
ADDITIONAL OR DIFFERENT ADDRESSES FOR SUBSEQUENT NOTICES OR COMMUNICATIONS.
(E) SUCCESSORS AND ASSIGNS. THIS AGREEMENT SHALL INURE TO THE
BENEFIT OF AND BE BINDING UPON THE SUCCESSORS AND ASSIGNS OF EACH OF THE
PARTIES, INCLUDING, WITHOUT THE NEED FOR AN EXPRESS ASSIGNMENT OR ANY CONSENT BY
THE COMPANY OR ANY GUARANTOR THERETO, SUBSEQUENT HOLDERS OF NOTES OR NEW NOTES
OR BOTH. THE COMPANY HEREBY AGREES TO EXTEND THE BENEFITS OF THIS AGREEMENT TO
ANY HOLDER OF NOTES OR NEW NOTES OR BOTH AND ANY SUCH HOLDER MAY SPECIFICALLY
ENFORCE THE PROVISIONS OF THIS AGREEMENT AS IF AN ORIGINAL PARTY HERETO.
(F) COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS AND BY THE PARTIES HERETO IN SEPARATE COUNTERPARTS, EACH OF WHICH
WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH TAKEN
TOGETHER SHALL CONSTITUTE
ONE AND THE SAME AGREEMENT.
(G) HEADINGS. THE HEADINGS IN THIS AGREEMENT ARE FOR CONVENIENCE
OF REFERENCE ONLY AND SHALL NOT LIMIT OR OTHERWISE AFFECT THE MEANING HEREOF.
(H) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(I) SEVERABILITY. IF ANY ONE OR MORE OF THE PROVISIONS CONTAINED
HEREIN, OR THE APPLICATION THEREOF IN ANY CIRCUMSTANCES, IS HELD INVALID,
ILLEGAL OR UNENFORCEABLE IN ANY RESPECT FOR ANY REASON, THE VALIDITY, LEGALITY
AND ENFORCEABILITY OF ANY SUCH PROVISION IN EVERY OTHER RESPECT AND OF THE
REMAINING PROVISIONS HEREOF SHALL NOT BE IN ANY WAY IMPAIRED OR AFFECTED
THEREBY, IT BEING INTENDED THAT ALL OF THE RIGHTS AND PRIVILEGES OF THE PARTIES
SHALL BE ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY LAW.
(J) NOTES HELD BY THE COMPANY, ETC. WHENEVER THE CONSENT OR
APPROVAL OF HOLDERS OF A SPECIFIED PERCENTAGE OF PRINCIPAL AMOUNT OF NOTES OR
NEW NOTES IS REQUIRED HEREUNDER, NOTES OR NEW NOTES, AS APPLICABLE, HELD BY THE
COMPANY OR ITS AFFILIATES (OTHER THAN SUBSEQUENT HOLDERS OF NOTES OR NEW NOTES
IF SUCH SUBSEQUENT HOLDERS ARE DEEMED TO BE AFFILIATES SOLELY BY REASON OF THEIR
HOLDINGS OF SUCH NOTES OR NEW NOTES) SHALL NOT BE COUNTED IN DETERMINING WHETHER
SUCH CONSENT OR APPROVAL WAS GIVEN BY THE HOLDERS OF SUCH REQUIRED PERCENTAGE.
PLEASE CONFIRM THAT THE FOREGOING CORRECTLY SETS FORTH THE
AGREEMENT AMONG THE COMPANY AND YOU.
VERY TRULY YOURS,
MAXXIM MEDICAL, INC.,
A TEXAS CORPORATION
BY:
Name:
Title:
THE FOREGOING AGREEMENT IS HEREBY
ACCEPTED AS OF THE DATE FIRST ABOVE WRITTEN.
NATIONSBANC CAPITAL MARKETS, INC.
BY:
NAME:
TITLE:
BEAR, XXXXXXX & CO. INC.
BY:
NAME:
TITLE:
ANNEX A
EACH BROKER-DEALER THAT RECEIVES NEW NOTES FOR ITS OWN ACCOUNT PURSUANT TO THE
EXCHANGE OFFER MUST ACKNOWLEDGE THAT IT WILL DELIVER A PROSPECTUS IN CONNECTION
WITH ANY RESALE OF SUCH NEW NOTES. 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 NEW NOTES RECEIVED IN
EXCHANGE FOR NOTES WHERE SUCH NOTES WERE ACQUIRED BY SUCH BROKER-DEALER AS A
RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES. THE COMPANY HAS
AGREED THAT, STARTING ON THE EXPIRATION DATE (AS DEFINED HEREIN) AND ENDING ON
THE CLOSE OF BUSINESS ONE YEAR AFTER THE EXPIRATION DATE, 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 NEW NOTES FOR ITS OWN ACCOUNT IN EXCHANGE FOR
NOTES, WHERE SUCH NOTES 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 NEW NOTES. SEE
"PLAN OF DISTRIBUTION."
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ANNEX C
PLAN OF DISTRIBUTION
EACH BROKER-DEALER THAT RECEIVES NEW NOTES FOR ITS OWN ACCOUNT
PURSUANT TO THE EXCHANGE OFFER MUST ACKNOWLEDGE THAT IT WILL DELIVER A
PROSPECTUS IN CONNECTION WITH ANY RESALE OF SUCH NEW NOTES. 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 NEW NOTES RECEIVED IN EXCHANGE FOR
NOTES WHERE SUCH NOTES WERE ACQUIRED AS A RESULT OF MARKET- MAKING ACTIVITIES OR
OTHER TRADING ACTIVITIES. THE COMPANY HAS AGREED THAT, STARTING ON THE
EXPIRATION DATE AND ENDING ON THE CLOSE OF BUSINESS ONE YEAR 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 ____________, 199 , ALL DEALERS EFFECTING TRANSACTIONS IN THE
NEW NOTES MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THE COMPANY WILL NOT RECEIVE ANY PROCEEDS FROM ANY SALE OF NEW
NOTES BY BROKER-DEALERS. NEW NOTES 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 NEW NOTES 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 AND/OR THE PURCHASERS OF ANY SUCH NEW NOTES. ANY BROKER-DEALER
THAT RESELLS NEW NOTES 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 NEW NOTES MAY BE DEEMED TO BE AN "UNDERWRITER" WITHIN THE MEANING OF THE
SECURITIES ACT AND ANY PROFIT FROM ANY SUCH RESALE OF NEW NOTES AND ANY
COMMISSIONS 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 ONE YEAR 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 (INCLUDING THE EXPENSES OF ONE COUNSEL FOR THE
HOLDERS OF THE NOTES) OTHER THAN COMMISSIONS OR CONCESSIONS OF ANY BROKERS OR
DEALERS AND WILL INDEMNIFY THE HOLDERS OF THE NOTES (INCLUDING ANY
BROKER-DEALERS) AGAINST CERTAIN LIABILITIES, INCLUDING LIABILITIES UNDER THE
SECURITIES ACT.
[IF APPLICABLE, ADD INFORMATION REQUIRED BY
REGULATION S-K ITEMS 507 AND/OR 508.]
1
ANNEX D
RIDER A
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:
RIDER B
THE UNDERSIGNED REPRESENTS THAT IT IS NOT AN AFFILIATE OF THE
COMPANY, THAT ANY NEW NOTES TO BE RECEIVED BY IT WILL BE ACQUIRED IN THE
ORDINARY COURSE OF BUSINESS AND THAT AT THE TIME OF THE COMMENCEMENT OF THE
EXCHANGE OFFER IT HAD NO ARRANGEMENT WITH ANY PERSON TO PARTICIPATE IN A
DISTRIBUTION OF THE NEW NOTES.
IN ADDITION, 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 NEW NOTES. IF THE UNDERSIGNED IS A BROKER-DEALER THAT WILL
RECEIVE NEW NOTES FOR ITS OWN ACCOUNT IN EXCHANGE FOR NOTES, IT REPRESENTS THAT
THE NOTES TO BE EXCHANGED FOR NEW NOTES WERE ACQUIRED BY IT AS A RESULT OF
MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES AND ACKNOWLEDGES THAT IT
WILL DELIVER A PROSPECTUS IN CONNECTION WITH ANY RESALE OF SUCH NEW NOTES;
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.
1
