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EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
Dated as of February 1, 2002
By and Among
US ONCOLOGY, INC.,
as Issuer,
the GUARANTORS named herein
and
UBS WARBURG LLC,
DEUTSCHE BANC ALEX. BROWN INC.
and
FIRST UNION SECURITIES, INC.
as Initial Purchasers
9 5/8% Senior Subordinated Notes due 2012
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TABLE OF CONTENTS
Page
1. Definitions..................................................... 1
2. Exchange Offer.................................................. 4
3. Shelf Registration.............................................. 8
4. Additional Interest............................................. 8
5. Registration Procedures......................................... 10
6. Registration Expenses........................................... 18
7. Indemnification................................................. 19
8. Rules 144 and 144A.............................................. 22
9. Underwritten Registrations...................................... 22
10. Miscellaneous................................................... 22
(a) No Inconsistent Agreements................................. 22
(b) Adjustments Affecting Registrable Notes.................... 23
(c) Amendments and Waivers..................................... 23
(d) Notices.................................................... 23
(e) Guarantors................................................. 24
(f) Successors and Assigns..................................... 24
(g) Counterparts............................................... 24
(h) Headings................................................... 24
(i) Governing Law.............................................. 24
(j) Severability............................................... 24
(k) Securities Held by the Company or Its Affiliates........... 25
(l) Third-Party Beneficiaries.................................. 25
(m) Attorneys' Fees............................................ 25
(n) Entire Agreement........................................... 25
SIGNATURES.......................................................... S-1
i
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
February 1, 2002, by and among US ONCOLOGY, INC., a Delaware corporation (the
"Company"), and each of the other Guarantors (as defined herein) (the Company
and the Guarantors are referred to collectively herein as the "Issuers"), on the
one hand, and UBS WARBURG LLC, DEUTSCHE BANC ALEX. BROWN INC. and FIRST UNION
SECURITIES, INC., (the "Initial Purchasers"), on the other hand.
This Agreement is entered into in connection with the Purchase Agreement,
dated as of January 25, 2002, by and among the Issuers and the Initial
Purchasers (the "Purchase Agreement"), relating to the offering of $175,000,000
aggregate principal amount of the Company's 9 5/8% Senior Subordinated Notes due
2012 (including the guarantees thereof by the Guarantors, the "Notes"). The
execution and delivery of this Agreement is a condition to the Initial
Purchasers' obligation to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
"action" shall have the meaning set forth in Section 7(c) hereof.
"Additional Interest" shall have the meaning set forth in Section 4(a)
hereof.
"Additional Interest Payment Date" shall have the meaning set forth in
Section 4(b) hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Agreement" shall have the meaning set forth in the first introductory
paragraph hereto.
"Applicable Period" shall have the meaning set forth in Section 2(b)
hereof.
"Board of Directors" shall have the meaning set forth in Section 5 hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Company" shall have the meaning set forth in the introductory paragraph
hereto and shall also include the Company's permitted successors and assigns.
"Commission" shall mean the Securities and Exchange Commission.
"day" shall mean a calendar day.
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"Delay Period" shall have the meaning set forth in Section 5 hereof.
"Effectiveness Period" shall have the meaning set forth in the second
paragraph of Section 3(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" shall have the meaning set forth in Section 2(a) hereof.
"Exchange Offer" shall have the meaning set forth in Section 2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning set forth in
Section 2(a) hereof.
"Guarantors" means each of the Persons executing this Agreement (as set
forth on Schedule I of the Purchase Agreement) on the date hereof and each
Person who executes and delivers a counterpart of this Agreement hereafter
pursuant to Section 10(e) hereof.
"Holder" shall mean any holder of a Registrable Note or Registrable Notes.
"Indenture" shall mean the Indenture, dated as of February 1, 2002, by and
among the Issuers and JP Morgan Chase Bank, as trustee, pursuant to which the
Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the first
introductory paragraph hereof.
"Inspectors" shall have the meaning set forth in Section 5(n) hereof.
"Issue Date" shall mean February 1, 2002, the date of original issuance of
the Notes.
"Issuers" shall have the meaning set forth in the first introductory
paragraph hereto.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which banking
institutions in New York, New York are required by law, regulation or executive
order to remain closed.
"Losses" shall have the meaning set forth in Section 7(a) hereof.
"Notes" shall have the meaning set forth in the second introductory
paragraph hereto.
"Participant" shall have the meaning set forth in Section 7(a) hereof.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 2(b) hereof.
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"Person" shall mean an individual, corporation, partnership, joint venture
association, joint stock company, trust, unincorporated limited liability
company, government or any agency or political subdivision thereof or any other
entity.
"Private Exchange" shall have the meaning set forth in Section 2(b) hereof.
"Private Exchange Notes" shall have the meaning set forth in Section 2(b)
hereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Notes, Exchange Notes or Private Exchange Notes covered by such
Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the second
introductory paragraph hereof.
"Records" shall have the meaning set forth in Section 5(n) hereof.
"Registrable Notes" shall mean each Note upon its original issuance and at
all times subsequent thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, in each case until (i) a Registration Statement (other than,
with respect to any Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Note,
Exchange Note or Private Exchange Note has been declared effective by the
Commission and such Note, Exchange Note or such Private Exchange Note, as the
case may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for
an Exchange Note or Exchange Notes that may be resold without restriction under
state and federal securities laws, (iii) such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding for purposes of the
Indenture or (iv) such Note, Exchange Note or Private Exchange Note has been
sold in compliance with Rule 144 or is salable pursuant to Rule 144(k).
"Registration Default" shall have the meaning set forth in Section 4(a)
hereof.
"Registration Statement" shall mean any appropriate registration statement
of the Company covering any of the Registrable Notes filed with the Commission
under the Securities Act, and all amendments and supplements to any 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.
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"Requesting Participating Broker-Dealer" shall have the meaning set forth
in Section 2(b) hereof.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the Commission providing for offers and
sales of securities made in compliance therewith resulting in offers and sales
by subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Event" shall have the meaning set forth in Section 2(c)
hereof.
"Shelf Registration" shall have the meaning set forth in Section 3(a)
hereof.
"Shelf Registration Statement" shall mean a Registration Statement filed in
connection with a Shelf Registration.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee under the Indenture and the trustee (if
any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
"Underwritten registration or underwritten offering" shall mean a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
Section 2. Exchange Offer
(a) The Issuers shall (i) file a Registration Statement (the "Exchange
Offer Registration Statement") within 90 days after the Issue Date with the
Commission on an appropriate registration form with respect to a registered
offer (the "Exchange Offer") to exchange any and all of the Registrable Notes
for a like aggregate principal amount of notes (including the guarantees with
respect thereto, the "Exchange Notes") that are identical in all material
respects to the Notes (except that the Exchange Notes shall not contain terms
with respect to transfer restrictions or Additional Interest upon a Registration
Default), (ii) use their commercially reasonable best efforts to cause the
Exchange Offer Registration Statement to be declared effective under the
Securities Act within 150 days after the Issue Date and (iii) use their
commercially reasonable best efforts to consummate the
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Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer
Registration Statement being declared effective by the Commission, the Company
will promptly offer the Exchange Notes in exchange for surrender of the Notes.
The Company shall keep the Exchange Offer open for not less than 30 Days (or
longer if required by applicable law) after the date notice of the Exchange
Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be required to
represent to the Company in writing that at the time of the consummation of the
Exchange Offer (i) any Exchange Notes to be received by it will be acquired in
the ordinary course of its business, (ii) it has no arrangement or understanding
with any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes in violation of the provisions of the
Securities Act , (iii) it is not an affiliate of the Issuer, as defined by rule
405 of the Securities Act, or if it is an affiliate of the Issuer, it 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, it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes, (v) if such Holder is a broker-dealer that will
receive Exchange Notes for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities, it will
deliver a prospectus in connection with any resale of such Exchange Notes and
(vi) such Holder has full power and authority to transfer the Notes in exchange
for the Exchange Notes and that the Company will acquire good and unencumbered
title thereto free and clear of any liens, restrictions, charges or encumbrances
and not subject to any adverse claims.
(b) The Company and the Initial Purchasers acknowledge that the staff of
the Commission has taken the position that any broker-dealer that elects to
exchange Notes that were acquired by such broker-dealer for its own account as a
result of market-making or other trading activities for Exchange Notes in the
Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Company and the Initial Purchasers also acknowledge that the staff of
the Commission has taken the position that if the Prospectus contained in the
Exchange Offer Registration Statement includes a plan of distribution containing
a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating Broker-Dealer (a
"Requesting Participating Broker-Dealer"), the Issuers agree to use their
commercially reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective for a period not to exceed 180 days after the
date on which the Exchange Registration Statement is declared effective, or such
longer period if extended pursuant to the last paragraph of Section 5 hereof
(such period, the "Applicable Period"), or such earlier date as all Requesting
Participating Broker-Dealers shall have notified the
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Company in writing that such Requesting Participating Broker-Dealers have resold
all Exchange Notes acquired in the Exchange Offer. The Company shall include a
plan of distribution in such Exchange Offer Registration Statement that meets
the requirements set forth in the preceding paragraph.
If, prior to consummation of the Exchange Offer, the Initial Purchasers
hold any Notes acquired by them that have, or that are reasonably likely to be
determined to have, the status of an unsold allotment in an initial
distribution, or if any Holder is not entitled to participate in the Exchange
Offer, the Company upon the request of the Initial Purchasers or any such
Holder, as the case may be, shall simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, issue and deliver to the Initial
Purchasers or any such Holder, as the case may be, in exchange (the "Private
Exchange") for such Notes held by the Initial Purchasers or any such Holder, as
the case may be, a like principal amount of notes (the "Private Exchange Notes")
of the Company that are identical in all material respects to the Exchange Notes
except that the Private Exchange Notes may be subject to restrictions on
transfer and bear a legend to such effect; provided, however, that the Issuers
shall not be required to effect a Private Exchange if in the written opinion of
counsel for the Issuers or counsel for the Initial Purchasers (copies of which
are delivered to the Initial Purchasers or Holder whose request is the subject
of such opinions) such Private Exchange cannot be effected without registration
under the Securities Act. The Private Exchange Notes shall be issued pursuant to
the same indenture as the Exchange Notes and bear the same CUSIP number as the
Exchange Notes.
Upon consummation of the Exchange Offer in accordance with this Section 2,
the Issuers shall have no further registration obligations other than the
Issuers' continuing registration obligations with respect to (i) Private
Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and
(iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2
applies.
In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate
in the Exchange Offer a copy of the Prospectus forming part of the Exchange
Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last Business Day on which the
Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Company shall:
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(1) accept for exchange all Notes validly tendered and not validly
withdrawn by the Holders pursuant to the Exchange Offer and the Private
Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for cancellation
all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case
may be, equal in principal amount to the Registrable Notes of such Holder
so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the Commission, (ii) no action or proceeding shall have been
instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Company to proceed with the Exchange Offer
or the Private Exchange, and no material adverse development shall have occurred
in any existing action or proceeding with respect to the Company and (iii) all
governmental approvals shall have been obtained, which approvals the Company
deems necessary for the consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued under (i)
the Indenture or (ii) an indenture identical in all material respects to the
Indenture (in either case, with such changes as are necessary to comply with any
requirements of the Commission to effect or maintain the qualification thereof
under the TIA) and which, in either case, has been qualified under the TIA and
shall provide that (a) the Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture and (b) the Private Exchange Notes shall
be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Notes, the Private
Exchange Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange Notes, the Private Exchange Notes or the
Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in any applicable law or the
applicable interpretations of the staff of the Commission do not permit the
Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is
not consummated within 180 days of the Issue Date, (iii) any Holder, other than
an Initial Purchaser, is prohibited by law or the applicable interpretations of
the staff of the Commission from participating in the Exchange Offer, (iv) in
the case of any Holder who participates in the Exchange Offer, such Holder does
not receive Exchange Notes on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such holder as an affiliate of any Issuer within the meaning of
the Securities Act) or (v) the Initial Purchasers so request with respect to
Notes or Private Exchange Notes that have, or that are reasonably likely to be
determined to have, the status of unsold allotments in an initial distribution
(each such event referred to in clauses (i) through (v) of this sentence, a
"Shelf Filing Event"), then the Issuers shall file a Shelf Registration pursuant
to Section 3 hereof.
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Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuers shall file with the Commission a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Notes (the "Shelf Registration").
The Issuers shall use their commercially reasonable best efforts to file with
the Commission the Shelf Registration Statement prior to the later of (x) 120
days after the Issue Date and (y) 60 days after the occurrence of the Shelf
Filing Event. The Shelf Registration shall be on Form S-1 or another appropriate
form permitting registration of such Registrable Notes for resale by Holders
(including, without limitation, one or more underwritten offerings). The Company
shall not permit any securities other than the Registrable Notes to be included
in the Shelf Registration.
(b) The Issuers shall use their commercially reasonable best efforts to
cause the Shelf Registration to be declared effective by the Commission on or
prior to the later of (x) 210 days after the Issue Date and (y) 60 days after
the filing of the Shelf Registration Statement with the Commission. The Issuers
shall use their commercially reasonable best efforts to keep the Shelf
Registration continuously effective under the Securities Act for the period
ending on the date which is two years from the Issue Date, subject to extension
pursuant to the penultimate paragraph of Section 5 hereof (the "Effectiveness
Period"), or such shorter period ending when all Registrable Notes covered by
the Shelf Registration have been sold in the manner set forth and as
contemplated in the Shelf Registration; provided, however, that (i) the
Effectiveness Period in respect of the Shelf Registration shall be extended to
the extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as otherwise
provided herein and (ii) the Company may suspend the effectiveness of the Shelf
Registration Statement by written notice to the Holders solely as a result of
the filing of a post-effective amendment to the 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.
(c) Supplements and Amendments. The Issuers agree to supplement or make
amendments to the Shelf Registration Statement as and when required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration.
Section 4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the Holders will
suffer damages if the Company fails to fulfill its obligations under Section 2
or Section 3 hereof as applicable and that it would not be feasible to ascertain
the extent of such damages with precision. Accordingly, the Company agrees that
if:
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(i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the date specified herein for such filing or, if
that day is not a Business Day, the next day that is a Business Day,
(ii) the Exchange Offer Registration Statement is not declared
effective by the Commission on or prior to the date specified herein for
such effectiveness or, if that day is not a Business Day, the next day that
is a Business Day,
(iii) the Exchange Offer is not consummated or a Shelf Registration
Statement is not declared effective by the Commission on or prior to the
date specified herein for such consummation or effectiveness, or, if such
day is not a Business Day, the next day that is a Business Day; or
(iv) the Shelf Registration Statement is required to be filed but is
not declared effective by the Commission on or prior to the date specified
herein for such effectiveness, or, if that day is not a Business Day, the
next day that is a Business Day, or is declared effective by such date but
thereafter ceases to be effective, except if the Shelf Registration ceases
to be effective as specifically permitted by the penultimate paragraph of
Section 5 hereof
(each such event referred to in clauses (i) through (iv) a "Registration
Default"), liquidated damages in the form of additional cash interest
("Additional Interest") will accrue on the affected Notes and the affected
Exchange Notes, as applicable. The rate of Additional Interest will be 0.25% per
annum for the first 90-day period immediately following the occurrence of a
Registration Default, increasing by an additional 0.25% per annum with respect
to each subsequent 90-day period up to a maximum amount of Additional Interest
of 1.00% per annum, from and including the date on which any such Registration
Default shall occur to, but excluding, the earlier of (1) the date on which all
Registration Defaults have been cured or (2) the date on which all the Notes and
Exchange Notes otherwise become freely transferable by Holders other than
affiliates of the Issuers without further registration under the Securities Act.
If, after the cure of all Registration Defaults then in effect, there is a
subsequent Registration Default, the rate of Additional Interest for such
subsequent Registration Default shall initially be 0.25% regardless of the rate
in effect with respect to any prior Registration Default at the time of cure of
such Registration Default.
Notwithstanding the foregoing, (1) the amount of Additional Interest
payable shall not increase because more than one Registration Default has
occurred and is pending and (2) a Holder of Notes or Exchange Notes who is not
entitled to the benefits of the Shelf Registration Statement (i.e., such Holder
has not elected to include information) shall not be entitled to Additional
Interest with respect to a Registration Default that pertains to the Shelf
Registration Statement.
(b) So long as Notes remain outstanding, the Company shall notify the
Trustee within five Business Days after each and every date on which a
Registration Default occurs. Any amounts of Additional Interest due pursuant to
clauses (a)(i), (a)(ii), (a)(iii) or (a)(iv) of this Section 4 will be payable
in cash semi-annually on each August 1 and February 1 (each an "Additional
Interest Payment Date"), commencing with the first such date occurring after any
such Additional Interest commences to accrue, to Holders to whom regular
interest is payable on such Additional Interest
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Payment Date with respect to Notes that are Registrable Securities. The amount
of Additional Interest for Registrable Notes will be determined by multiplying
the applicable rate of Additional Interest by the aggregate principal amount of
all such Registrable Notes outstanding on the Additional Interest Payment Date
following such Registration Default in the case of the first such payment of
Additional Interest with respect to a Registration Default (and thereafter at
the next succeeding Additional Interest Payment Date until the cure of such
Registration Default), 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, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the
sale of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Issuers hereunder, the Issuers shall:
(a) Prepare and file with the Commission the Registration Statement or
Registration Statements prescribed by Section 2 or 3 hereof, and use their
commercially reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided, however, that, if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford the Holders of
the Registrable Notes covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, their counsel (if such
counsel is known to the Issuers) and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents proposed to
be filed (in each case at least five Business Days prior to such filing or
such later date as is reasonable under the circumstances). The Company
shall not file any Registration Statement or Prospectus or any amendments
or supplements thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement, or
any such Participating Broker-Dealer, as the case may be, shall reasonably
object on a timely basis.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be; cause
the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; and comply with the applicable provisions of the Securities
Act and the Exchange Act with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such Prospectus
as so supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Bro-
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ker-Dealer covered by any such Prospectus, in each case, in accordance with
the intended methods of distribution set forth in such Registration
Statement as so amended or Prospectus as so supplemented
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto from whom the
Company has received written notice that such Broker-Dealer will be a
Participating Broker-Dealer in the applicable Exchange Offer, notify the
selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel (if such counsel is known
to the Issuers) and the managing underwriters, if any, as promptly as
possible, and, if requested by any such Person, confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole
expense of the Company, one conformed copy of such Registration Statement
or post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and
exhibits), (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) of the receipt by any
of the Issuers of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement
or any of the Registrable Notes or the Exchange Notes for offer or sale in
any jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (iv) of the happening of any event, the existence of any
condition or any information becoming known to the Company that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes
in or amendments or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus,
it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and (v) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use their commercially
reasonable best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes
12
or the Exchange Notes, as the case may be, for sale in any jurisdiction,
and, if any such order is issued, to use their commercially reasonable best
efforts to obtain the withdrawal of any such order at the earliest
practicable moment.
(e) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period and if reasonably requested by
the managing underwriter or underwriters (if any), the Holders of a
majority in aggregate principal amount of the Registrable Notes covered by
such Registration Statement or any Participating Broker-Dealer, as the case
may be, (i) promptly incorporate in such Registration Statement or
Prospectus a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any), such
Holders or any Participating Broker-Dealer, as the case may be (based upon
advice of counsel), determine is reasonably necessary to be included
therein and (ii) make all required filings of such prospectus supplement or
such post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that the Issuers
shall not be required to take any action hereunder that would, in the
written judgment of counsel to the Company, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling Holder
of Registrable Notes or each such Participating Broker-Dealer, as the case
may be, who so requests in writing, their counsel (if such counsel is known
to the Issuers) and each managing underwriter, if any, at the sole expense
of the Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by reference
and all exhibits as soon as practicable after the filing of such documents
with the Commission.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, deliver to each selling Holder
of Registrable Notes or each such Participating Broker-Dealer, as the case
may be, their respective counsel, and the underwriters, if any, at the sole
expense of the Company, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or
supplement thereto as such Persons may reasonably request; and, subject to
the last paragraph of this Section 5, the Issuers hereby consent to the use
of such Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any,
and dealers (if any), in connection with the offering and sale of the
Registrable
13
Notes covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Notes or Exchange
Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use their commercially
reasonable best efforts to register or qualify, and to cooperate with the
selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes or Exchange Notes, as the case may
be, for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters reasonably
requests in writing; provided, however, that where Exchange Notes or
Registrable Notes are offered other than through an underwritten offering,
the Company agrees to use its commercially reasonable best efforts to cause
the Company's counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 5(h); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective hereunder and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Exchange Notes or Registrable Notes covered by the
applicable Registration Statement; provided, however, that no Issuer shall
be required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified, (B) take any action that would subject
it to general service of process in any such jurisdiction where it is not
then so subject or (C) take any action that would subject itself to
taxation in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such authorized denominations and
registered in such names as the managing underwriter or underwriters, if
any, or selling Holders may request at least five Business Days prior to
any sale of such Registrable Notes.
(j) Use their reasonable best efforts to cause the Registrable Notes
or Exchange Notes covered by any Registration Statement to be registered
with or approved by such other United States governmental agencies or
authorities as may be reasonably necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Notes or Exchange Notes, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Company will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting of
such approvals.
14
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Section 5(a) and the penultimate
paragraph of this Section 5) file with the Commission, at the sole expense
of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(m) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Notes and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or facilitate the
disposition of such Registrable Notes and, in such connection, (i) make
such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Company and its
subsidiaries, as then conducted (including any acquired business,
properties or entity, if applicable), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings of
debt securities similar to the Notes, and confirm the same in writing if
and when requested provided however, that under the terms of any such
underwriting agreement, the Issuer shall be obligated to notify the selling
Holders of Registrable Notes, or each Participating Broker-Dealer, as the
case may be, their counsel (if such counsel is known to the Issuers) and
the managing underwriters, if any, as promptly as possible if, at any time
when a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange Notes
by Participating Broker-Dealers, the representations and warranties of the
Issuers contained in any agreement (including such underwriting agreement)
contemplated by this Section 5(m) cease to be true and correct in all
material respects; (ii) use their commercially reasonable best efforts to
obtain the written opinions of counsel to the Company and written updates
thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters, addressed to the underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by the managing underwriter or underwriters; (iii) use their
15
commercially reasonable best efforts to obtain customary "cold comfort"
letters and updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters 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 or
incorporated by reference in the Registration Statement), addressed (where
reasonably possible) to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings; and (iv)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the
underwriters than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration
Statement and the managing underwriter or underwriters); provided that the
Issuers shall not be required to provide indemnification to any underwriter
selected in accordance with the provisions of Section 9 hereof with respect
to information relating to such underwriter furnished in writing to the
Company by or on behalf of such underwriter expressly for inclusion in such
Registration Statement. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for inspection
by any selling Holder of such Registrable Notes being sold or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such selling Holder or
each such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary
to enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement and Prospectus.
Each Inspector shall agree in writing with the Company that it will keep
the Records and all such information confidential and that it will not
disclose, or use in connection with any market transactions in violation of
any applicable securities laws, any Records or any such information that
the Company determines, in good faith, to be confidential and that it
designates in writing are confidential unless (i) the disclosure of such
Records or information is necessary to avoid or correct a misstatement or
omission in such Registration Statement or Prospectus, (ii) the release of
such Records or information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, or (iii) the information in
such Records or the information supplied has been made generally available
to the public other than as a result of a disclosure or failure to
safeguard such information by an Inspector; provided, however, that (i)
each Inspector shall agree to use reasonable best efforts to provide notice
to the Company of the potential disclosure of any information by such
Inspector pursuant to clause
16
(i), or (ii) of this sentence to permit the Issuers to seek to obtain a
protective order or other remedy (or waive the provisions of this paragraph
(n)) and (ii) each such Inspector shall take such actions as are reasonably
necessary to protect the confidentiality of such information.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(b) hereof to be qualified under the TIA
not later than the effective date of the first Registration Statement
relating to the Registrable Notes or the Exchange Offer; and in connection
therewith, cooperate with the trustee under any such indenture and the
Holders of the Registrable Notes or Exchange Notes, as applicable, to
effect such changes to such indenture as may be required for such indenture
to be so qualified in accordance with the terms of the TIA; and execute,
and use their commercially reasonable best efforts to cause such trustee to
execute, all customary documents as may be required to effect such changes,
and all other forms and documents required to be filed with the Commission
to enable such indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the Commission
and make generally available to the Company's securityholders earnings
statements satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Notes or Exchange Notes are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter
of the Company after the effective date of a Registration Statement, which
statements shall cover said 12-month periods consistent with the
requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of the Exchange
Offer or a Private Exchange, use their reasonable best efforts to obtain an
opinion of counsel to the Company, in a form customary for underwritten
transactions, addressed to the Trustee for the benefit of all Holders of
Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, that the Exchange Notes or Private Exchange
Notes, as the case may be, and the related indenture constitute legal,
valid and binding obligations of the Company, enforceable against the
Company in accordance with its respective terms, subject to customary
exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Company (or to
such other Person as directed by the Company) in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, mark, or cause to
be marked, on such Registrable Notes that such Registrable Notes are being
cancelled in exchange for the Exchange Notes or the Private Exchange Notes,
as the case may be; provided that in no event shall such Registrable Notes
be marked as paid or otherwise satisfied.
17
(s) Subject to the limitations herein contained, use their
commercially reasonable best efforts to take all other steps reasonably
necessary to effect the registration of the Exchange Notes and/or
Registrable Notes covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Notes or Exchange Notes
as to which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable Notes
or Exchange Notes as the Company may, from time to time, reasonably request. The
Company may exclude from such registration the Registrable Notes of any seller
so long as such seller fails to furnish such information within a reasonable
time after receiving such request and in the event of such an exclusion, the
Issuers shall have no further obligation under this Agreement (including,
without limitation, the obligations under Section 4) with respect to such seller
or any subsequent Holder of such Registrable Notes. Each seller as to which any
Shelf Registration is being effected agrees to furnish promptly to the Company
all information required to be disclosed in order to make any information
previously furnished to the Company by such seller not materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the applicable Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes that, upon
actual receipt of any notice from the Company (x) of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v)
hereof, or (y) that the Board of Directors of the Company (the "Board of
Directors") has resolved that the Company has a bona fide business purpose for
doing so, then the Company may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration, in all cases, for a period (a
"Delay Period") expiring upon the earlier to occur of (i) in the case of the
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the
date on which such business purpose ceases to interfere with the Company's
obligations to file or maintain the effectiveness of any such Registration
Statement pursuant to this Agreement or (B) 60 days after the Company notifies
the Holders of such good faith determination. There shall not be more than 60
days of
18
Delay Periods during any 12-month period. Each of the Effectiveness Period and
the Applicable Period, if applicable, shall be extended by the number of days
during any Delay Period. Any Delay Period will not alter the obligations of the
Company to pay Additional Interest under the circumstances set forth in Section
4 hereof.
In the event of any Delay Period pursuant to clause (y) of the preceding
paragraph, notice shall be given as soon as practicable after the Board of
Directors makes such a determination of the need for a Delay Period and shall
state, to the extent practicable, an estimate of the duration of such Delay
Period and shall advise the recipient thereof of the agreement of such Holder
provided in the next succeeding sentence. Each Holder and each Participating
Broker-Dealer, by his or its acceptance of any Registrable Note or Exchange
Note, agrees that during any Delay Period, each Holder or each Participating
Broker-Dealer, as the case may be, will discontinue disposition of such Notes or
Exchange Notes covered by such Registration Statement or Prospectus to be sold
by such Holder or Participating Broker-Dealer, as the case may be.
Section 6. Registration Expenses
All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuers (other than any underwriting discounts or
commissions) shall be borne by the Issuers, whether or not the Exchange Offer
Registration Statement or the Shelf Registration is filed or becomes effective
or the Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of an Exchange Offer, or (y) as provided in Section 5(h) hereof, in the
case of a Shelf Registration or in the case of Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or in respect of Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, as the
case may be, (iii) reasonable messenger, telephone and delivery expenses, (iv)
reasonable fees and disbursements of counsel for the Company and reasonable fees
and disbursements of one special counsel for all of the sellers of Registrable
Notes (exclusive of any counsel retained pursuant to Section 7 hereof), (v)
reasonable fees and disbursements of all independent certified public
accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Company desires such insurance, (vii) reasonable fees and
expenses of all other Persons retained by any of the Issuers, (viii) internal
expenses of the Issuers (including, without limitation, all salaries and
expenses of officers and employees of the Company performing legal or accounting
duties), (ix) the expense of any annual audit, (x) the fees and expenses
incurred in connection with the listing of the Notes, Exchange Notes or Private
Exchange Notes to be registered on any securities exchange, and the obtaining of
a rating of the securities, in each case, if applicable, and (xi) the expenses
relating to printing, word
19
processing and distributing all Registration Statements, underwriting
agreements, indentures and any other documents necessary in order to comply with
this Agreement. Notwithstanding the foregoing or anything in this Agreement to
the contrary, each Holder shall pay all underwriting discounts and commissions
of any underwriters with respect to any Registrable Notes sold by or on behalf
of it.
Section 7. Indemnification
(a) Each Issuer, jointly and severally, agrees to indemnify and hold
harmless each Holder of Registrable Notes and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period, each Person, if any, who
controls any such Person within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, the agents, employees, officers and
directors of each Holder and each such Participating Broker-Dealer and the
agents, employees, officers and directors of any such controlling Person (each,
a "Participant") from and against any and all losses, liabilities, claims,
damages and expenses (including, but not limited to, reasonable attorneys' fees
and any and all reasonable out-of-pocket expenses actually incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all reasonable amounts paid in
settlement of any claim or litigation (in the manner set forth in clause (c)
below)) (collectively, "Losses") to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise insofar as such Losses
(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 any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by, arising out of or based
upon any 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 the light of the circumstances under which they were made,
not misleading, provided that (i) the foregoing indemnity shall not be available
to any Participant insofar as such Losses are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to such Participant furnished to the
Company in writing by or on behalf of such Participant expressly for use
therein, and (ii) that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Participant from whom the
Person asserting such Losses purchased Registrable Notes if (x) it is
established in the proceeding related to such Losses that such Participant
failed to send or give a copy of the Prospectus (as amended or supplemented if
such amendment or supplement was furnished to such Participant prior to the
written confirmation of such sale) to such Person with or prior to the written
confirmation of such sale, if required by applicable law, and (y) the untrue
statement or omission or alleged untrue statement or omission was completely
corrected in the Prospectus (as amended or supplemented if amended or
supplemented as aforesaid) provided, however, that this subsection (y) shall not
affect any Participant's rights under the indemnity agreement contained in this
Section 7(a) with respect to any Losses arising out of or based upon any other
untrue statement or omission or alleged untrue statement or omission that was
the subject matter of the proceeding related to such Losses. This indemnity
agreement will be in addition to any liability that the Issuers may otherwise
have, including, but not limited to, liability under this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify and
hold harmless each Issuer, each Person, if any, who controls any Issuer within
the meaning of Section 15 of the
20
Securities Act or Section 20(a) of the Exchange Act, and each of their
respective agents, employees, officers and directors and the agents, employees,
officers and directors of any such controlling Person from and against any
Losses to which they or any of them may become subject under the Securities Act,
the Exchange Act or otherwise insofar as such Losses (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 any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by, arising out of or based upon any 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 the
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that any such Loss arises out of or
is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
relating to such Participant furnished in writing to the Company by or on behalf
of such Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under subsection 7(a) or
7(b) above of notice of the commencement of any action, suit or proceeding
(collectively, an "action"), such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in writing of the
commencement of such action (but the failure so to notify an indemnifying party
shall not relieve such indemnifying party from any liability that it may have
under this Section 7 except to the extent that it has been prejudiced in any
material respect by such failure). In case any such action is brought against
any indemnified party, and it notifies an indemnifying party of the commencement
of such action, the indemnifying party will be entitled to participate in such
action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense of such action with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, after consultation
with counsel, that there may be defenses available to it or them that are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses of counsel
shall be borne by the indemnifying parties. In no event shall the indemnifying
party be liable for the reasonable fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all indemnified
parties in connection with any one action or separate but substantially similar
or related actions arising in the same jurisdiction out of the same general
allegations or circumstances. Any such separate firm for the Participants shall
be designated in writing by Participants who sold a majority in interest of
Registrable Notes sold by all such Participants and shall be reasonably accept-
21
able to the Company and any such separate firm for the Issuers, their
affiliates, officers, directors, representatives, employees and agents and such
control Person of such Issuers shall be designated in writing by such Issuers
and shall be reasonably acceptable to the Holders. An indemnifying party shall
not be liable for any settlement of any claim or action effected without its
written consent, which consent may not be unreasonably withheld. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying party, or is insufficient to hold harmless a
party indemnified under this Section 7, each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchasers or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation 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 each indemnified party, on
the one hand, and each indemnifying 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. The relative benefits received by the
Issuers, on the one hand, and each Participant, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the sale of
the Notes to the Initial Purchasers (net of discounts and commissions but before
deducting expenses) received by the Issuers are to (y) the total net profit
received by such Participant in connection with the sale of the Registrable
Notes. 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 Issuers or such Participant and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or alleged statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) 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. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this
22
Section 7, notify such party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any obligation it or they
may have under this Section 7 or otherwise, except to the extent that it has
been prejudiced in any material respect by such failure; provided, however, that
no additional notice shall be required with respect to any action for which
notice has been given under this Section 7 for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any action or claim settled without its
written consent, provided, however, that such written consent was not
unreasonably withheld.
Section 8. Rules 144 and 144A
The Issuers covenant that they will use their commercially reasonable best
efforts to file the reports required, if any, to be filed by them under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission thereunder in a timely manner in accordance with the requirements of
the Securities Act and the Exchange Act and, if at any time the Issuers are not
required to file such reports, they will, upon the request of any Holder or
beneficial owner of Registrable Notes, make available such information as
required by, and so long as necessary to permit sales of the Registrable
Securities pursuant to Rule 144A and Rule 144(k) under the Securities Act or any
similar rule or regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations
If any of the Registrable Notes 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 manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Notes
included in such offering subject to the consent of the Company (which will not
be unreasonably withheld or delayed).
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, and shall not, after the date of this Agreement, enter into any
agreement with respect to any of their securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuers' other
issued and outstanding securities under any such agreements. The Issuers have
not entered and will not enter into any agreement with respect to any of their
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
23
(b) Adjustments Affecting Registrable Notes. The Company shall not,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(c) 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 pursuant to a written agreement
duly signed and delivered by (I) the Company (on behalf of all Issuers) and
(II)(A) the Holders of not less than a majority in aggregate principal amount of
the then outstanding Registrable Notes and (B) in circumstances that would
adversely affect the Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount of
the Exchange Notes held by all Participating Broker-Dealers; provided, however,
that Section 7 and this Section 10(c) may not be amended, modified or
supplemented except pursuant to a written agreement duly signed and delivered by
the Company and each Holder and each Participating Broker-Dealer (including any
Person who was a Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification, waiver or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
(ii) if to the Company, at the address as follows:
US Oncology, Inc.
16825 Northchase Drive
Houston, Texas 77060
Telephone: (832) 601-8766
Fax: (832) 601-6600
Attention: Chief Executive Officer
(iii) if to the Initial Purchasers, at the address as follows:
24
UBS Warburg LLC
299 Park Avenue
New York, New York 10171
Telephone: (212) 821-3000
Fax number: (212) 821-6890
Attention: Syndicate Department
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in the Indenture.
(e) Guarantors. So long as any Registrable Notes remain outstanding, the
Issuers shall cause each Person that becomes a guarantor of the Notes under the
Indenture to execute and deliver a counterpart to this Agreement which subjects
such Person to the provisions of this Agreement as a Guarantor. Each of the
Guarantors agrees to join the Company in all of its undertakings hereunder to
effect the Exchange Offer for the Exchange Notes and the filing of any Shelf
Registration Statement required hereunder.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign holds
Registrable Notes.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
(j) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect
25
and shall in no way be affected, impaired or invalidated, and the parties hereto
shall use their reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(k) Securities Held by the Company or Its Affiliates. Whenever the consent
or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or any of its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be deemed outstanding and shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(l) Third-Party Beneficiaries. Holders and beneficial owners of Registrable
Notes and Participating Broker-Dealers are intended third-party beneficiaries of
this Agreement, and this Agreement may be enforced by such Persons. No other
Person is intended to be, or shall be construed as, a third-party beneficiary of
this Agreement.
(m) Attorneys' Fees. As between the parties to this Agreement, in any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its reasonable costs and expenses and any other available remedy.
(n) Entire Agreement. This Agreement, together with the Purchase Agreement
and the Indenture, is intended by the parties as a final and exclusive statement
of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Company on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
26
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
US ONCOLOGY, INC.
By:
------------------------------
Name:
Title:
EACH OF THE CORPORATE GUARANTORS LISTED ON
SCHEDULE I OF THE PURCHASE AGREEMENT
By:
------------------------------
Name:
Title:
EACH OF THE OTHER GUARANTORS LISTED ON
SCHEDULE I OF THE PURCHASE AGREEMENT
By: Its respective Managing Member or
Sole Manager, as the case may be
By:
------------------------------
Name:
Title:
27
UBS WARBURG LLC
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
DEUTSCHE BANC ALEX. BROWN INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
FIRST UNION SECURITIES, INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title: