Exhibit 4.8
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 10, 2005
Among
AMR HOLDCO, INC.,
EMCARE HOLDCO, INC.
and
THE GUARANTORS NAMED HEREIN
as Issuers,
and
BANC OF AMERICA SECURITIES LLC
and
J.P. Morgan Securities Inc.
as Initial Purchasers
10% Senior Subordinated Notes due 2015
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is dated as of
February 10, 2005, among AMR HOLDCO, INC., a Delaware corporation ("AMR
HOLDCO"), EMCARE HOLDCO, INC., a Delaware corporation ("EMCARE HOLDCO" and
together with AMR HoldCo, the "NOTE ISSUERS"), Emergency Medical Services L.P.
("PARENT"), the subsidiaries of a Note Issuer that are listed on the signature
pages hereto (collectively, and together with Parent and any entity that in the
future executes a supplemental indenture pursuant to which such entity agrees to
guarantee the Notes (as hereinafter defined), the "GUARANTORS" and, together
with the Note Issuers, the "ISSUERS"), and BANC OF AMERICA SECURITIES LLC and
J.P. Morgan Securities Inc., as initial purchasers (the "INITIAL PURCHASERS").
This Agreement is entered into in connection with the Purchase
Agreement by and among the Note Issuers, the Guarantors and the Initial
Purchasers, dated January 27, 2005 (the "PURCHASE AGREEMENT"), which provides
for, among other things, the sale by the Note Issuers to the Initial Purchasers
of $250,000,000 aggregate principal amount of the Issuers' 10% Senior
Subordinated Notes due 2015 (the "NOTES") guaranteed by the Guarantors (the
"GUARANTEES"). The Notes and the Guarantees are collectively referred to herein
as the "SECURITIES". In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuers have agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and any
subsequent holder or holders of the Securities. The execution and delivery of
this Agreement is a condition to the Initial Purchasers' obligation to purchase
the Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
ADDITIONAL INTEREST: See Section 4(a) hereto.
ADVICE: See the last paragraph of Section 5 hereto.
AGREEMENT: See the introductory paragraphs hereto.
APPLICABLE PERIOD: See Section 2(b) hereto.
BUSINESS DAY: Any day that is not a Saturday, Sunday or a day on
which banking institutions in New York are authorized or required by law to be
closed.
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EFFECTIVENESS DATE: With respect to (i) the Exchange Offer
Registration Statement, the 300th day after the Issue Date and (ii) any Shelf
Registration Statement, the 30th day after the Filing Date with respect thereto;
provided, however, that if the Effectiveness Date would otherwise fall on a day
that is not a Business Day, then the Effectiveness Date shall be the next
succeeding Business Day.
EFFECTIVENESS PERIOD: See Section 3(a) hereto.
EVENT DATE: See Section 4(b) hereto.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTES: See Section 2(a) hereto.
EXCHANGE OFFER: See Section 2(a) hereto.
EXCHANGE OFFER REGISTRATION STATEMENT: See Section 2(a) hereto.
FILING DATE: (A) With respect to an Exchange Offer Registration
Statement, the 240th day after the Issue Date; and (B) with respect to any Shelf
Registration Statement (which may be applicable notwithstanding the consummation
of the Exchange Offer), the 30th day after the delivery of a Shelf Notice as
required pursuant to Section 2(c) hereof (or, if later, the 300th day after the
Issue Date); provided, however, that if the Filing Date would otherwise fall on
a day that is not a Business Day, then the Filing Date shall be the next
succeeding Business Day.
GUARANTEES: See the introductory paragraphs hereto.
GUARANTORS: See the introductory paragraphs hereto.
HOLDER: Any holder of a Registrable Note.
INDENTURE: The Indenture dated as of February 10, 2005, by and
between the Note Issuers, the Guarantors and U.S. Bank Trust National
Association, as Trustee, pursuant to which the Notes are being issued, as
amended or supplemented from time to time in accordance with the terms thereof.
INFORMATION: See Section 5(o) hereto.
INITIAL PURCHASERS: See the introductory paragraphs hereto.
INITIAL SHELF REGISTRATION: See Section 3(a) hereto.
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INSPECTORS: See Section 5(o) hereto.
ISSUE DATE: February 10, 2005, the date of original issuance of the
Notes.
ISSUERS: See the introductory paragraphs hereto.
NASD: See Section 5(s) hereto.
NOTE ISSUERS: See the introductory paragraphs hereto.
NOTES: See the introductory paragraphs hereto.
PARENT: See the introductory paragraphs hereto.
PARTICIPANT: See Section 7(a) hereto.
PARTICIPATING BROKER-DEALER: See Section 2(b) hereto.
PERSON: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
PRIVATE EXCHANGE: See Section 2(b) hereto.
PRIVATE EXCHANGE NOTES: See Section 2(b) hereto.
PROSPECTUS: 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
under the Securities Act and any term sheet filed pursuant to Rule 434 under the
Securities Act), as amended or supplemented by any prospectus supplement, 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: See the introductory paragraphs hereto.
RECORDS: See Section 5(o) hereto.
REGISTRABLE NOTES: Each Note (and the related Guarantees) upon its
original issuance and at all times subsequent thereto, each Exchange Note (and
the related guarantees) as to which Section 2(c)(iii) hereof is applicable upon
original issuance and at all times subsequent thereto and each Private Exchange
Note (and the related guarantees) upon original issuance thereof and at all
times subsequent thereto, until, in each case, the earliest to occur of
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(i) a Registration Statement (other than, with respect to any Exchange Note as
to which Section 2(c)(iii) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and such Note, Exchange Note or such Private
Exchange Note (and the related guarantees), 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
Private Exchange Note (and the related guarantees) that may be resold without
restriction under state and federal securities laws, (iii) such Note, Exchange
Note or Private Exchange Note (and the related guarantees), as the case may be,
ceases to be outstanding for purposes of the Indenture or (iv) such Note,
Exchange Note or Private Exchange Note (and the related guarantees), as the case
may be, may be resold without restriction pursuant to Rule 144(k) (as amended or
replaced) under the Securities Act.
REGISTRATION STATEMENT: Any registration statement of the Issuers
that covers any of the Notes, the Exchange Notes or the Private Exchange Notes
(and the related guarantees, if any) filed with the SEC under the Securities
Act, including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
RULE 144: Rule 144 under the Securities Act.
RULE 144A: Rule 144A under the Securities Act.
RULE 405: Rule 405 under the Securities Act.
RULE 415: Rule 415 under the Securities Act.
RULE 424: Rule 424 under the Securities Act.
SEC: The United States Securities and Exchange Commission or any
successor agency thereto.
SECURITIES: See the introductory paragraphs hereto.
SECURITIES ACT: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(c) hereto.
SHELF REGISTRATION: See Section 3(b) hereto.
SHELF REGISTRATION STATEMENT: Any Registration Statement relating to
a Shelf Registration.
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SUBSEQUENT SHELF REGISTRATION: See Section 3(b) hereto.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and the trustee (if any)
under any indenture governing the Exchange Notes and Private Exchange Notes (and
the related guarantees).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration
in which Registrable Notes are sold to an underwriter for reoffering to the
public.
Except as otherwise specifically provided, all references in this
Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "REGULATORY
REQUIREMENTS") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; provided that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. EXCHANGE OFFER.
(a) Unless the Exchange Offer would violate applicable law or any
applicable interpretation of the staff of the SEC, the Issuers shall file with
the SEC, no later than the Filing Date, a Registration Statement (the "EXCHANGE
OFFER REGISTRATION STATEMENT") 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 debt securities of
the Note Issuers (the "EXCHANGE NOTES") guaranteed by the Guarantors that are
identical in all material respects to the Securities, except that (i) the
Exchange Notes shall contain no restrictive legend thereon and (ii) interest
thereon shall accrue from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from the Issue Date, and which are
entitled to the benefits of the Indenture or a trust indenture which is
identical in all material respects to the Indenture (other than such changes to
the Indenture or any such other trust indenture as are necessary to comply with
any requirements of the SEC to effect or maintain the qualification thereof
under the TIA) and which, in either case, has been qualified under the TIA. The
Exchange Offer shall comply with all applicable tender offer rules and
regulations under the Exchange Act and other applicable federal and state
securities laws. The Issuers shall use their commercially reasonable efforts to
(x) cause the Exchange Offer Registration Statement to be declared effective
under the Securities Act on or before the Effectiveness Date; (y) keep the
Exchange Offer open for at least 20 Business Days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed to
Holders; and (z) consummate the Exchange Offer on or prior to the 30th Business
Day following the effectiveness of the Exchange Offer Registration Statement.
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Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates in the Exchange Offer will be required to
represent to the Issuers in writing that: (i) any Exchange Notes acquired in
exchange for Registrable Notes tendered are being acquired in the ordinary
course of business of the Person receiving such Exchange Notes, whether or not
such recipient is such Holder itself; (ii) at the time of the commencement or
consummation of the Exchange Offer neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder has an arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes in violation of the provisions of the
Securities Act; (iii) neither the Holder nor, to the actual knowledge of such
Holder, any other Person receiving Exchange Notes from such Holder is an
"affiliate" (as defined in Rule 405) of a Note Issuer or, if it is an affiliate
of a Note Issuer, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable and will provide
information to be included in the Shelf Registration Statement in accordance
with Section 5 hereof in order to have their Notes included in the Shelf
Registration Statement and benefit from the provisions regarding Additional
Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder is engaging in or intends to engage in a distribution of the Exchange
Notes; (v) if such Holder is a Participating Broker-Dealer, such Holder has
acquired the Registrable Notes as a result of market-making activities or other
trading activities and that it will comply with the applicable provisions of the
Securities Act (including, without limitation, the prospectus delivery
requirements thereunder) and (vi) any additional representations that in the
opinion of counsel to the Issuers are necessary under the existing rules and
regulations (or interpretation thereof) or other Regulatory Requirements of the
SEC in order for the Exchange Offer Registration Statement to become effective.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply solely with
respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as
to which Section 2(c)(iii) is applicable and Exchange Notes held by
Participating Broker-Dealers, and the Issuers shall have no further obligation
to register Registrable Notes (other than Private Exchange Notes and Exchange
Notes as to which clause 2(c)(iii) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
(b) The Issuers shall indicate in a "Plan of Distribution" section
contained in the Prospectus forming a part of the Exchange Offer Registration
Statement that any broker-dealer that is the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "PARTICIPATING BROKER-DEALER") who holds
Notes that are Registrable Notes and that were acquired for its own account as a
result of market-making activities or other trading activities (other than
Registra-
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ble Notes acquired directly from the Issuers), may exchange such Notes pursuant
to the Exchange Offer; provided, however, such Participating Broker-Dealer may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must, therefore, deliver a prospectus meeting the requirements of the Securities
Act in connection with any resales of the Exchange Notes received by such
Participating Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Participating Broker-Dealer
of the Prospectus contained in the Exchange Offer Registration Statement. Such
"Plan of Distribution" section shall also contain all other information with
respect to such resales by Participating Broker-Dealers that the SEC may require
in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Participating Broker-Dealer or disclose
the amount of Notes held by any such Participating Broker-Dealer except to the
extent required by the SEC as a result of a change in policy after the date of
this Agreement.
The Issuers shall use their commercially reasonable efforts to keep
the Exchange Offer Registration Statement effective and to amend and supplement
the Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as is necessary to
comply with applicable law in connection with any resale of the Exchange Notes;
provided, however, that such period shall not be required to exceed 90 days or
such longer period if extended pursuant to the last paragraph of Section 5
hereof (the "APPLICABLE PERIOD").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them that have the status of an unsold
allotment in the initial distribution, the Issuers upon the request of the
Initial Purchasers shall simultaneously with the delivery of the Exchange Notes
issue and deliver to the Initial Purchasers, in exchange (the "PRIVATE
EXCHANGE") for such Notes held by any such Holder, a like principal amount of
notes (the "PRIVATE EXCHANGE NOTES") of the Issuers, guaranteed by the
Guarantors that are identical in all material respects to the Exchange Notes
except for the placement of a restrictive legend on such Private Exchange Notes.
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.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record 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;
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(2) use their commercially reasonable efforts to keep the Exchange
Offer open for not less than 20 Business Days after the date that notice
of the Exchange Offer is mailed to Holders (or longer if required by
applicable law);
(3) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Securities at any time prior
to 5:00 p.m., New York time, on the last Business Day on which the
Exchange Offer remains open; and
(5) 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 Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and
not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Securities, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Securities of such Holder so
accepted for exchange; provided that, in the case of any Securities held
in global form by a depositary, authentication and delivery to such
depositary of one or more replacement Securities in global form in an
equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and
delivery requirement.
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 SEC; (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 Issuers 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 Issuers; and
(iii) all governmental approvals shall have been obtained, which approvals the
Issuers deem 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 and
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which, in either case, has been qualified under the TIA or is exempt from such
qualification and shall provide that the Exchange Notes shall not 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 Securities shall vote and consent together on all matters as one class and
that none of the Exchange Notes, the Private Exchange Notes or the Securities
will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Issuers are not permitted to effect
the Exchange Offer, (ii) the Initial Purchasers or any holder of Private
Exchange Notes so requests in writing to the Note Issuers at any time prior to
the 20th day following the consummation of the Exchange Offer, or (iii) in the
case of any Holder that 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 the Issuers within the meaning of
the Securities Act) and so notifies the Note Issuers within 30 days after such
Holder first becomes aware of such restrictions, in the case of each of clauses
(i) to and including (iii) of this sentence, then the Issuers shall promptly
deliver to the Holders and the Trustee written notice thereof (the "SHELF
NOTICE") and shall file a Shelf Registration pursuant to Section 3 hereof.
3. SHELF REGISTRATION.
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) SHELF REGISTRATION. The Issuers shall as promptly as practicable
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable Notes (the
"INITIAL SHELF REGISTRATION"). The Issuers shall use their commercially
reasonable efforts to file with the SEC the Initial Shelf Registration on or
prior to the applicable Filing Date. The Initial Shelf Registration shall be on
Form S-3 or another appropriate form permitting registration of such Registrable
Notes for resale by Holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings). The Issuers
shall not permit any securities other than the Registrable Notes and the
Guarantees to be included in the Initial Shelf Registration or any Subsequent
Shelf Registration (as defined below).
The Issuers shall use their commercially reasonable efforts to cause
the Shelf Registration to be declared effective under the Securities Act on or
prior to the Effectiveness Date and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date that is two years
from the Issue Date or such shorter period ending when all Registrable Notes
covered by the Initial Shelf Registration have been sold or cease to be
outstanding in the manner set forth and as contemplated in the Initial Shelf
Registration or, if applicable, a Subsequent Shelf Registration (the
"EFFECTIVENESS PERIOD"); provided, however, that the Effectiveness Period in
respect of the Initial Shelf Registration shall be extended to
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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 shall be subject to reduction to the extent that the
applicable provisions of Rule 144(k) are amended or revised to reduce the two
year holding period set forth therein.
(b) WITHDRAWAL OF STOP ORDERS; SUBSEQUENT SHELF REGISTRATIONS. If
the Initial Shelf Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period (other than
because of the sale of all of the Notes registered thereunder), the Issuers
shall use their commercially reasonable efforts to obtain the prompt withdrawal
of any order suspending the effectiveness thereof, and in any event shall within
30 days of such cessation of effectiveness amend such Shelf Registration
Statement in a manner to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes covered by and not
sold under the Initial Shelf Registration or an earlier Subsequent Shelf
Registration (each, a "SUBSEQUENT SHELF REGISTRATION"). If a Subsequent Shelf
Registration is filed, the Issuers shall use their commercially reasonable
efforts to cause the Subsequent Shelf Registration to be declared effective
under the Securities Act as soon as practicable after such filing and to keep
such subsequent Shelf Registration continuously effective for a period equal to
the number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf Registration
was previously continuously effective. As used herein the term "SHELF
REGISTRATION" means the Initial Shelf Registration and any Subsequent Shelf
Registration.
(c) SUPPLEMENTS AND AMENDMENTS. The Issuers shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes (or their counsel) covered by such Registration Statement with
respect to the information included therein with respect to one or more of such
Holders, or by any underwriter of such Registrable Notes with respect to the
information included therein with respect to such underwriter.
(d) HOLDER TO PROVIDE INFORMATION. No Holder of Registrable Notes
may include any of its Registrable Notes in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes to the Issuers
in writing, no later than the earlier of (i) 10 Business Days after receipt of a
request therefor or (ii) five Business Days prior to the effectiveness of the
Shelf Registration Statement, in each case such information as the Issuers may
reasonably request for use in connection with any Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein, including, without
limitation, a completed notice and questionnaire in the form of Annex I hereto.
Each Holder as to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Issuers all
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information required to be disclosed in order to make the information previously
furnished to the Issuers by such Holder not materially misleading.
4. ADDITIONAL INTEREST.
(a) The Issuers and the Initial Purchasers agree that the Holders
will suffer damages if the Issuers fail to fulfill their obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Issuers agree to pay,
jointly and severally, as liquidated damages, additional interest on the
Registrable Notes ("ADDITIONAL INTEREST") under the circumstances and to the
extent set forth below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the Filing Date
applicable thereto or (B) notwithstanding that the Issuers have
consummated or will consummate the Exchange Offer, the Issuers are
required to file a Shelf Registration and such Shelf Registration is not
filed on or prior to the Filing Date applicable thereto, then, commencing
on the day after any such Filing Date, Additional Interest shall accrue on
the principal amount of the Registrable Notes at a rate of $0.05 per week
per $1,000 principal amount of Registrable Notes for the first 90 days
immediately following such applicable Filing Date, and such Additional
Interest rate shall increase by an additional $0.05 per week per $1,000
principal amount of Registrable Notes at the beginning of each subsequent
90-day period; or
(ii) if (A) neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration is declared effective by the SEC on or
prior to the Effectiveness Date applicable thereto or (B) notwithstanding
that the Issuers have consummated or will consummate the Exchange Offer,
the Issuers are required to file a Shelf Registration and such Shelf
Registration is not declared effective by the SEC on or prior to the
Effectiveness Date applicable to such Shelf Registration, then, commencing
on the day after such Effectiveness Date, Additional Interest shall accrue
on the principal amount of the Registrable Notes at a rate of $0.05 per
week per $1,000 principal amount of Registrable Notes for the first 90
days immediately following the day after such Effectiveness Date, and such
Additional Interest rate shall increase by an additional $0.05 per week
per $1,000 principal amount of Registrable Notes at the beginning of each
subsequent 90-day period; or
(iii) if (A) the Issuers have not exchanged Exchange Notes for all
Notes validly tendered in accordance with the terms of the Exchange Offer
on or prior to the 30th Business Day after the effectiveness of the
Exchange Offer Registration Statement or (B) if applicable, a Shelf
Registration has been declared effective and such Shelf Registration
ceases to be effective at any time during the Effectiveness Period, then
Additional Interest shall accrue on the principal amount of the
Registrable Notes
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at a rate of $0.05 per week per $1,000 principal amount of Registrable
Notes for the first 90 days commencing on the (x) the day following the
30th Business Day after the effectiveness of the Exchange Offer
Registration Statement, in the case of (A) above, or (y) the day such
Shelf Registration ceases to be effective in the case of (B) above, and
such Additional Interest rate shall increase by an additional $0.05 per
week per $1,000 principal amount of Registrable Notes at the beginning of
each such subsequent 90-day period;
provided, however, that (1) Additional Interest on the Registrable Notes may not
accrue under more than one of the foregoing clauses (i)-(iii) at any one time
and at no time shall the aggregate amount of Additional Interest accruing exceed
in the aggregate $0.30 per week per $1,000 principal amount of Registrable
Notes; provided, further, however, that (1) upon the filing of the applicable
Exchange Offer Registration Statement or the applicable Shelf Registration as
required hereunder (in the case of clause (i) of this Section 4), (2) upon the
effectiveness of the Exchange Offer Registration Statement or the applicable
Shelf Registration Statement as required hereunder (in the case of clause (ii)
of this Section 4), or (3) upon the exchange of the Exchange Notes for all Notes
tendered (in the case of clause (iii)(A) of this Section 4), or upon the
effectiveness of the applicable Shelf Registration Statement which had ceased to
remain effective (in the case of (iii)(B) of this Section 4), Additional
Interest on the Registrable Notes in respect of which such events relate as a
result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue. A Holder will not be entitled to Additional Interest on
account of a registration default that results solely from such Holder's failure
to provide to the Issuers, within the timeframe specified in Section 3(d)
hereof, all information to be included in the Shelf Registration Statement in
accordance with Section 5 hereof.
(b) The Issuers shall notify the Trustee within three Business Days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "EVENT DATE"). Any amounts of
Additional Interest due pursuant to clause (a) of this Section 4 will be payable
in cash semiannually on each February 15 and August 15 (to the holders of record
on February 1 and August 1 immediately preceding such dates), commencing with
the first such date occurring after any such Additional Interest commences to
accrue. The amount of Additional Interest will be determined based on a year
made up of 360 days consisting of twelve 30-day months. No Additional Interest
shall accrue with respect to Notes that are not Registrable Notes.
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,
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and pursuant thereto and in connection with any Registration Statement filed by
the Issuers hereunder, each of the Issuers shall:
(a) Prepare and file with the SEC prior to the applicable Filing
Date a Registration Statement or Registration Statements as prescribed by
Section 2 or 3 hereof, and use its commercially reasonable 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 from whom any Issuer has received written notice
that it will be a Participating Broker-Dealer in the Exchange Offer,
before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Issuers shall furnish to and afford the
Holders of the Registrable Notes covered by such Registration Statement
(with respect to a Registration Statement filed pursuant to Section 3
hereof) or each such Participating Broker-Dealer (with respect to any such
Registration Statement), as the case may be, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies
of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed (in each case at least three Business Days prior to such filing).
The Issuers 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, their counsel, or the managing underwriters, if
any, shall reasonably object on a in writing within such three Business
Day period.
(b) Prepare and file with the SEC 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, the Applicable Period or until consummation of the Exchange Offer,
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; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it 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
Broker-Dealer covered by any such Prospectus. Other than during any
Blackout Period, the Issuers shall be deemed not to have used their
commercially reasonable efforts to keep a Registration Statement effective
if any Issuer voluntarily takes any action that would result in selling
Holders of the Registrable Notes covered thereby or Participating
Broker-Dealers seeking to sell Exchange Notes not being able to sell such
Registrable Notes or such Exchange Notes
-14-
during that period unless such action is required by applicable law or
permitted by this Agreement. As used herein "BLACKOUT PERIOD" shall mean
that period during which the Issuers are permitted to suspend the use of
the prospectus that is part of the Shelf Registration Statement under
certain circumstances relating to pending corporate developments, public
filings with the SEC and similar events for a period not to exceed 30 days
in any three-month period and not to exceed an aggregate of 90 days in any
12-month period. The Issuers may establish regular suspension periods
corresponding to their fiscal quarters.
(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 any Issuer has received written notice that it will be a
Participating Broker-Dealer in the Exchange Offer, notify the selling
Holders of Registrable Notes (with respect to a Registration Statement
filed pursuant to Section 3 hereof), or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the
case may be, their counsel and the managing underwriters, if any, promptly
(but in any event within two Business Days), and 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 Issuers, 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 SEC 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) 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 any underwriting agreement) contemplated by
Section 5(n) hereof cease to be true and correct, (iv) of the receipt by
any Issuer 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 to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event, the existence of any condition or any information
becoming known 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
-15-
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
(vi) of the Issuers' determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its commercially reasonable 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 or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any
such order is issued, to use its commercially reasonable efforts to obtain
the withdrawal of any such order at the earliest practicable moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested during the Effectiveness Period by the managing underwriter or
underwriters (if any), the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold in connection with an
underwritten offering or any Participating Broker-Dealer, (i) as promptly
as practicable incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters (if
any), such Holders, any Participating Broker-Dealer or counsel for any of
them reasonably request to be included therein, (ii) make all required
filings of such prospectus supplement or such post-effective amendment
with the SEC as soon as practicable after the Note Issuers have received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (iii) supplement or make
amendments to such Registration Statement.
(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 (with respect to a Registration Statement
filed pursuant to Section 3 hereof) and to each such Participating
Broker-Dealer who so requests (with respect to any such Registration
Statement) and to their respective counsel and each managing underwriter,
if any, at the sole expense of the Issuers, one conformed copy of the
Registration Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and sched-
-16-
ules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(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 (with respect to a Registration Statement
filed pursuant to Section 3 hereof), or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the
case may be, their respective counsel, and the underwriters, if any, at
the sole expense of the Issuers, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any documents incorporated by
reference therein 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 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 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 its commercially reasonable
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 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 request in writing; provided, however, that where Exchange
Notes held by Participating Broker-Dealers or Registrable Notes are
offered other than through an underwritten offering, the Issuers agree to
cause their 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 and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Exchange Notes held by Participating Broker-Dealers or the 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
-17-
to general service of process in any such jurisdiction where it is not
then so subject or (C) subject itself to taxation in excess of a nominal
dollar amount 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 denominations (subject to applicable
requirements contained in the Indenture) and registered in such names as
the managing underwriter or underwriters, if any, or Holders may request.
(j) Use its commercially reasonable efforts to cause the Registrable
Notes covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Notes, except as may be required solely as a consequence of the nature of
such selling Holder's business, in which case the Issuers will cooperate
in all respects with the selling Holder in its efforts to receive such
registration or approval.
(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 paragraph 5(c)(v) or 5(c)(vi) hereof, as
promptly as practicable prepare and (subject to Section 5(a) hereof) file
with the SEC, at the sole expense of the Issuers, 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 (with respect to a Registration Statement filed
pursuant to Section 3 hereof) or to the purchasers of the Exchange Notes
to whom such Prospectus will be delivered by a Participating Broker-Dealer
(with respect to any such Registration Statement), 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) Use its commercially reasonable efforts to cause the Registrable
Notes covered by a Registration Statement or the Exchange Notes, as the
case may be, to be rated with the appropriate rating agencies (unless such
Notes are already so rated), if
-18-
so requested by the Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement or the Exchange
Notes, as the case may be, or the managing underwriter or underwriters, if
any.
(m) 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.
(n) 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 Securities, and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order
to expedite or facilitate the registration or 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 Issuers (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, as are customarily made by issuers to underwriters
in underwritten offerings of debt securities similar to the Securities,
and confirm the same in writing if and when requested; (ii) obtain the
written opinions of counsel to the Issuers, 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 reasonably requested in
underwritten offerings; (iii) obtain "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 Issuers (and, if necessary, any other independent
certified public accountants of the Issuers, or of any business acquired
by the Issuers, for which financial statements and financial data are, or
are required to be, included or incorporated by reference in the
Registration Statement), addressed 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 of debt securities similar to the Securities; and
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the sellers
and underwriters, if any, than those set forth in Section 7 hereof (or
such other provisions and procedures reasonably acceptable to Holders of a
majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement and the managing underwriter or underwriters
or agents, if any) with respect to all parties to be indemnified pursuant
thereto. The above shall be done at each closing under such underwriting
agreement, or as, and to the extent, required thereunder.
-19-
(o) 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 Initial Purchaser, any selling Holder of such
Registrable Notes being sold (with respect to a Registration Statement
filed pursuant to Section 3 hereof), 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 (with respect to any such Registration
Statement), as the case may be, or underwriter (any such Initial
Purchaser, Holders, Participating Broker-Dealers, underwriters, attorneys,
accountants or agents, collectively, the "INSPECTORS"), upon written
request, at the offices where normally kept, during reasonable business
hours, all pertinent financial and other records, pertinent corporate
documents and instruments of the Issuers (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 Issuers and any of their respective subsidiaries, if any,
to supply all information ("INFORMATION") reasonably requested by any such
Inspector in connection with such due diligence responsibilities. Each
Inspector shall agree in writing that it will keep the Records and
Information confidential and that it will not disclose any of the Records
or Information that any Issuer determines, in good faith, to be
confidential and notifies the Inspectors in writing are confidential
unless (i) the disclosure of such Records or Information is necessary to
avoid or correct a material 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, (iii) disclosure of such Records or Information is necessary
or advisable, in the opinion of counsel for any Inspector, in connection
with any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out of,
based upon, relating to, or involving this Agreement or the Purchase
Agreement, or any transactions contemplated hereby or thereby or arising
hereunder or thereunder, or (iv) the information in such Records or
Information has been made generally available to the public other than
through disclosure by an Inspector or an "affiliate" (as defined in Rule
405 under the Securities Act) thereof; provided, however, that prior
notice shall be provided as soon as practicable to any Issuer of the
potential disclosure of any information by such Inspector pursuant to
clause (i) or (ii) of this sentence to permit the Issuers to undertake
appropriate action to prevent disclosure of such Records or Information at
the Issuers' expense.
(p) 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(a) hereof, as the case may be, to be
qualified under the TIA not later than
-20-
the effective date of the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Registrable Notes, to
effect such changes (if any) 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 its commercially reasonable efforts to cause such trustee
to execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to enable
such indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders with regard to any
applicable Registration Statement, a consolidated earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
as soon as practicable after the end of any 12-month period (i) commencing
at the end of any fiscal quarter in which Registrable 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 Parent, after the effective
date of a Registration Statement, which statements shall cover said
12-month periods.
(r) Upon consummation of the Exchange Offer or a Private Exchange,
or if so requested by the Trustee, obtain an opinion of counsel to the
Issuers, 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, the related guarantee and the related indenture constitute legal,
valid and binding obligations of the Issuers, enforceable against the
Issuers in accordance with their respective terms, subject to customary
exceptions and qualifications. If the Exchange Offer or a Private Exchange
is to be consummated, upon delivery of the Registrable Notes by Holders to
the Note Issuers (or to such other Person as directed by the Note
Issuers), in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be, the Issuers shall mark, or cause to be marked,
on such Registrable Notes that such Registrable Notes are being canceled
in exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be; in no event shall such Registrable Notes be marked as paid or
otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
-21-
(t) Use its commercially reasonable efforts to take all other steps
necessary to effect the registration of the Exchange Notes and/or
Registrable Notes covered by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Issuers such information
regarding such seller and the distribution of such Registrable Notes as the
Issuers may, from time to time, reasonably request. The Issuers 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. Each seller as to which any Shelf Registration is being effected agrees
to furnish promptly to the Issuers all information required to be disclosed in
order to make the information previously furnished to the Issuers 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 Note Issuers, 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 Note Issuers, 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
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 its acquisition of such Registrable Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, that,
upon actual receipt of any notice from the Note Issuers (i) of the happening of
any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or
5(c)(vi) hereof, such Holder will forthwith discontinue disposition of such
Registrable Notes covered by such Registration Statement or Prospectus or
Exchange Notes to be sold by such Holder or Participating Broker-Dealer, as the
case may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of any supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "ADVICE") by the Issuers that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event that the Issuers shall give any
such notice, each of the Applicable Period and the Effectiveness Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Notes covered by such Registration Statement or Exchange Notes to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
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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, which shall be paid by the applicable Holder) shall be borne by the
Issuers, whether or not the Exchange Offer Registration Statement or any Shelf
Registration Statement is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (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 the Exchange Notes, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Notes or 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, by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement or in respect of
Registrable Notes or Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Issuers and, in the case of a Shelf Registration, 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) fees and
disbursements of all independent certified public accountants referred to in
Section 5(o)(iii) hereof (including, without limitation, the expenses of any
"cold comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Issuers desire such insurance, (vii)
fees and expenses of all other Persons retained by the Issuers, (viii) internal
expenses of the Issuers (including, without limitation, all salaries and
expenses of officers and employees of the Issuers performing legal or accounting
duties), (ix) the expense of any annual audit, (x) any fees and expenses
incurred in connection with the listing of the securities 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
processing and distributing all Registration Statements, underwriting
agreements, indentures and any other documents necessary to comply with this
Agreement.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) Each of the Issuers agree, jointly and severally, to indemnify
and hold harmless each Holder of Registrable Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, and each
Person, if any, who controls such Person
-23-
or its affiliates within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (each, a "PARTICIPANT") against any losses, claims, damages or
liabilities to which any Participant may become subject under the Act, the
Exchange Act or otherwise, insofar as any such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement (or any amendment thereto) or
Prospectus (as amended or supplemented if any of the Issuers shall have
furnished any amendments or supplements thereto); or
(ii) the omission or alleged omission to state, in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Issuers shall have furnished any amendments or
supplements thereto) or any other document or any amendment or supplement
thereto, 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 will reimburse, as incurred, the Participant for any reasonable legal or
other expenses incurred by the Participant in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, the Issuers
will not be liable in any such case (i) to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any amendment or supplement thereto in reliance upon and
in conformity with information relating to any Participant furnished to the
Issuers by such Participant specifically for use therein, (ii) if such loss,
claim, damage or liability arises as a result of use of a Shelf Registration
Statement or the related Prospectus during a period when such use has been
suspended pursuant to Section 5(c), provided that the Note Issuers have complied
with their obligations in Section 5(c) and (iii) if such Participant sold to the
person asserting the claim the Registrable Notes or Exchange Notes that are the
subject of such claim and such untrue statement or alleged untrue statement or
omission or alleged omission was contained or made in any preliminary prospectus
and corrected in the Prospectus or any amendment or supplement thereto and the
Prospectus does not contain any other untrue statement or omission of a material
fact that was the subject matter of the related proceeding and it is established
by the Issuers in the related proceeding that such Participant failed to deliver
or provide a copy of the Prospectus (as amended or supplemented) to such Person
with or prior to the confirmation of the sale of such Registrable Notes or
Exchange Notes sold to such Person if required by applicable law, unless such
failure to deliver or provide a copy of the Prospectus (as amended or
supplemented) was a result of noncompliance with the Issuers with Section 7 of
this Agreement. The indemnity provided
-24-
for in this Section 7 will be in addition to any liability that the Issuers may
otherwise have to the indemnified parties. The Issuers shall not be liable under
this Section 7 for any settlement of any claim or action effected without its
prior written consent, which shall not be unreasonably withheld.
(b) Each Participant, severally and not jointly, agrees to indemnify
and hold harmless the Issuers, their directors, their officers and each Person,
if any, who controls the Issuers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Issuers or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement or
Prospectus, any amendment or supplement thereto, or (ii) the omission or the
alleged omission to state therein a material fact necessary to make the
statements therein, in the case of the Prospectus, in light of the circumstances
which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information concerning such Participant, furnished to the Issuers by the
Participant, specifically for use therein; and subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses incurred by the Issuers or any such director, officer or
controlling person in connection with investigating or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. The indemnity provided for in
this Section 7 will be in addition to any liability that the Participants may
otherwise have to the indemnified parties. The Participants shall not be liable
under this Section 7 for any settlement of any claim or action effected without
their consent, which shall not be unreasonably withheld. The Issuers shall not,
without the prior written consent of such Participant, effect any settlement or
compromise of any pending or threatened proceeding in respect of which any
Participant is or could have been a party, or indemnity could have been sought
hereunder by any Participant, unless such settlement (A) includes an
unconditional written release of the Participants, in form and substance
reasonably satisfactory to the Participants, from all liability on claims that
are the subject matter of such proceeding and (B) does not include any statement
as to an admission of fault, culpability or failure to act by or on behalf of
any Participant.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 7, 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 of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and
-25-
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 paragraphs (a) and (b) above. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that 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 defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have been advised by counsel that there may be
one or more legal defenses available to it and/or other indemnified parties that
are different from or additional to those available to the indemnifying party,
or (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after receipt by the indemnifying party of notice of the
institution of such action, then, in each such case, the indemnifying party
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by Participants who sold a
majority in interest of the Registrable Notes and Exchange Notes sold by all
such Participants in the case of paragraph (a) of this Section 7 or the Issuers
in the case of paragraph (b) of this Section 7, representing the indemnified
parties under such paragraph (a) or paragraph (b), as the case may be, who are
parties to such action or actions) or (ii) the indemnifying party has authorized
in writing the employment of counsel for the indemnified party at the expense of
the indemnifying party. All fees and expenses reimbursed pursuant to this
paragraph (c) shall be reimbursed as they are incurred. After such notice from
the indemnifying party to such indemnified party, the indemnifying party will
not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the prior written consent of the
indemnifying party (which consent shall not be unreasonably withheld), unless
such indemnified party waived in writing its rights under this Section 7, in
which case the indemnified party may effect such a settlement without such
consent.
-26-
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 7 is unavailable to, or insufficient
to hold harmless, an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof), each indemnifying party, in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Notes or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof). The relative benefits received by the Issuers on the one hand and such
Participant on the other shall be deemed to be in the same proportion as the
total proceeds from the offering (before deducting expenses) of the Notes
received by the Issuers bear to the total net profit received by such
Participant in connection with the sale of the 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
on the one hand, or the Participants on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The parties agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation or by any other method of allocation that does not take
into account the equitable considerations referred to in the first sentence of
this paragraph (d). Notwithstanding any other provision of this paragraph (d),
no Participant shall be obligated to make contributions hereunder that in the
aggregate exceed the total net profit received in connection with the sale of
the Notes, less the aggregate amount of any damages that such Participant has
otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact, and
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls a Participant within the meaning of Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Participants, and each director of any Issuer, each officer
of any Issuer and each person, if any, who controls any Issuer within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have
the same rights to contribution as the Issuers.
-27-
8. RULES 144 AND 144A.
For so long as the Registrable Notes remain outstanding, each of the
Issuers covenants and agrees that it will, upon the request of any Holder or
beneficial owner of Registrable Notes, use commercially reasonable efforts to
make available such information necessary to permit sales pursuant to Rule 144A.
Each of the Issuers further covenants and agrees, for so long as any Registrable
Notes remain outstanding that it will use commercially reasonable efforts to
take such further action as any Holder of Registrable Notes may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Notes without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144(k) under the Securities Act
and Rule 144A.
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 and shall be reasonably acceptable to the
Issuers.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees 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)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Issuers have not, as of the date
hereof, and the Issuers 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 in any way conflict with and are not inconsistent with
the rights granted to the holders of the Issuers' other issued and outstanding
securities under any such agreements. The Issuers 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.
(b) ADJUSTMENTS AFFECTING REGISTRABLE NOTES. The Issuers 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.
-28-
(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, otherwise than with the prior written
consent of (I) the Note 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 without the prior written
consent of 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 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 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 facsimile:
(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, with a copy in like manner to the Initial
Purchasers as follows:
Banc of America Securities LLC
9 West 57th Street
22nd Floor
New York, NY 10019
Facsimile: (646) 313-4802
Attention: Stuart Dean
with a copy to:
Cahill Gordon & Reindel LLP
80 Pine Street
New York, NY 10005
Facsimile: (212) 269-5420
Attention: Gary Brooks
-29-
(ii) if to the Initial Purchasers, at the address(es) specified and
with a copy as specified in Section 10(d)(i);
(iii) if to the Issuers, at the address as follows:
AMR HoldCo, Inc.
EmCare HoldCo, Inc.
6200 S. Syracuse Way, Suite 200
Greenwood Village, CO 80111
Facsimile: (303) 495-1200
Attention: General Counsel
with a copy to:
Kaye Scholer LLP
425 Park Avenue
New York, NY 10022
Facsimile: (212) 836-8689
Attention: Joel I. Greenberg
Lynn Toby Fisher
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; one Business Day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
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 such Indenture.
(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
hereto, the Holders and the Participating Broker-Dealers; provided, however,
that nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture.
(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.
-30-
(h) 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 ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER
LAW.
(i) 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 and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially 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.
(j) SECURITIES HELD BY THE ISSUERS OR THEIR AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuers or their affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(k) THIRD-PARTY BENEFICIARIES. Holders of Registrable Notes and
Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
(l) 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 Initial Purchasers on
the one hand and the Issuers 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.
[Signature pages follow.]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMR HOLDCO, INC.
By: /s/ William A. Sanger
--------------------------------
Name: William A. Sanger
Title: Chief Executive Officer
EMCARE HOLDCO, INC.
By: /s/ William A. Sanger
--------------------------------
Name: William A. Sanger
Title: Chief Executive Officer
EMERGENCY MEDICAL SERVICES L.P.
By: Emergency Medical Services
Corporation, its general partner
By: /s/ William A. Sanger
--------------------------------
Name: William A. Sanger
Title: Chairman and Chief Executive
Officer
AMERICAN MEDICAL RESPONSE, INC.
HANK'S ACQUISITION CORP.
FOUNTAIN AMBULANCE SERVICE, INC.
MEDLIFE EMERGENCY MEDICAL SERVICE, INC.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC.
AMERICAN MEDICAL RESPONSE WEST
METROPOLITAN AMBULANCE SERVICE
AMERICAN MEDICAL RESPONSE OF INLAND EMPIRE
DESERT VALLEY MEDICAL TRANSPORT, INC.
SPRINGS AMBULANCE SERVICE, INC.
AMERICAN MEDICAL RESPONSE OF COLORADO, INC.
INTERNATIONAL LIFE SUPPORT, INC.
MEDEVAC MIDAMERICA, INC.
MEDEVAC MEDICAL RESPONSE, INC.
AMERICAN MEDICAL RESPONSE OF OKLAHOMA, INC.
AMERICAN MEDICAL RESPONSE OF TEXAS, INC.
KUTZ AMBULANCE SERVICE, INC.
AMERICAN MEDICAL RESPONSE HOLDINGS, INC.
AMERICAN MEDICAL RESPONSE MANAGEMENT, INC.
A1 LEASING, INC.
FLORIDA EMERGENCY PARTNERS, INC.
MOBILE MEDIC AMBULANCE SERVICE, INC.
METRO AMBULANCE SERVICE, INC.
METRO AMBULANCE SERVICE (RURAL), INC.
MEDIC ONE AMBULANCE SERVICES, INC.
AMERICAN MEDICAL RESPONSE OF SOUTH CAROLINA,
INC.
AMERICAN MEDICAL RESPONSE OF NORTH CAROLINA,
INC.
AMERICAN MEDICAL RESPONSE OF GEORGIA, INC.
TROUP COUNTY EMERGENCY MEDICAL SERVICES,
INC.
RANDLE EASTERN AMBULANCE SERVICE, INC.
MEDI-CAR SYSTEMS, INC.
MEDI-CAR AMBULANCE SERVICE, INC.
AMERICAN MEDICAL RESPONSE OF TENNESSEE, INC.
PHYSICIANS & SURGEONS AMBULANCE SERVICE,
INC.
AMERICAN MEDICAL RESPONSE OF ILLINOIS, INC.
MIDWEST AMBULANCE MANAGEMENT COMPANY
PARAMED, INC.
MERCY AMBULANCE OF EVANSVILLE, INC.
TIDEWATER AMBULANCE SERVICE, INC.
AMERICAN MEDICAL RESPONSE OF CONNECTICUT,
INCORPORATED
AMERICAN MEDICAL RESPONSE OF
MASSACHUSETTS, INC.
AMERICAN MEDICAL RESPONSE MID-ATLANTIC, INC.
AMBULANCE ACQUISITION, INC.
METRO AMBULANCE SERVICES, INC.
BROWARD AMBULANCE, INC.
ATLANTIC AMBULANCE SERVICES ACQUISITION,
INC.
ATLANTIC/KEY WEST AMBULANCE, INC.
ATLANTIC/PALM BEACH AMBULANCE, INC.
SEMINOLE COUNTY AMBULANCE, INC.
LIFEFLEET SOUTHEAST, INC.
AMERICAN MEDICAL PATHWAYS, INC.
ADAM TRANSPORTATION SERVICE, INC.
ASSOCIATED AMBULANCE SERVICE, INC.
PARK AMBULANCE SERVICE INC.
FIVE COUNTIES AMBULANCE SERVICE, INC.
SUNRISE HANDICAP TRANSPORT CORP.
STAT HEALTHCARE, INC.
LAIDLAW MEDICAL TRANSPORTATION, INC.
MERCY, INC.
AMERICAN INVESTMENT ENTERPRISES, INC.
LIFECARE AMBULANCE SERVICE, INC.
TEK, INC.
MERCY LIFE CARE
HEMET VALLEY AMBULANCE SERVICE, INC.
AMERICAN MEDICAL RESPONSE OF SOUTHERN
CALIFORNIA
MEDIC ONE OF COBB, INC.
PUCKETT AMBULANCE SERVICE, INC.
AMERICAN MEDICAL RESPONSE DELAWARE VALLEY,
LLC
By: American Medical Response Mid-Atlantic,
Inc., its sole member
REGIONAL EMERGENCY SERVICES, LP
By: Florida Emergency Partners, Inc., its
general partner
PROVIDACARE, L.L.C.
By: American Medical Pathways, Inc., its
sole member
By: /s/ Randel G. Owen
----------------------------------------
Name: Randel G. Owen
Title: Vice President
EMCARE HOLDINGS INC.
EMCARE, INC.
EMCARE OF ALABAMA, INC.
EMCARE CONTRACT OF ARKANSAS, INC.
EMCARE OF ARIZONA, INC.
EMCARE OF CALIFORNIA, INC.
EMCARE OF COLORADO, INC.
EMCARE OF CONNECTICUT, INC.
EMCARE OF FLORIDA, INC.
EMCARE OF GEORGIA, INC.
EMCARE OF HAWAII, INC.
EMCARE OF INDIANA, INC.
EMCARE OF IOWA, INC.
EMCARE OF KENTUCKY, INC.
EMCARE OF LOUISIANA, INC.
EMCARE OF MAINE, INC.
EMCARE OF MICHIGAN, INC.
EMCARE OF MINNESOTA, INC.
EMCARE OF MISSISSIPPI, INC.
EMCARE OF MISSOURI, INC.
EMCARE OF NEVADA, INC.
EMCARE OF NEW HAMPSHIRE, INC.
EMCARE OF NEW JERSEY, INC.
EMCARE OF NEW MEXICO, INC.
EMCARE OF NEW YORK, INC.
EMCARE OF NORTH CAROLINA, INC.
EMCARE OF NORTH DAKOTA, INC.
EMCARE OF OHIO, INC.
EMCARE OF OKLAHOMA, INC.
EMCARE OF OREGON, INC.
EMCARE OF PENNSYLVANIA, INC.
EMCARE OF RHODE ISLAND, INC.
EMCARE OF SOUTH CAROLINA, INC.
EMCARE OF TENNESSEE, INC.
EMCARE OF TEXAS, INC.
EMCARE OF VERMONT, INC.
EMCARE OF VIRGINIA, INC.
EMCARE OF WASHINGTON, INC.
EMCARE OF WEST VIRGINIA, INC.
EMCARE OF WISCONSIN, INC.
EMCARE PHYSICIAN PROVIDERS, INC.,
EMCARE PHYSICIAN SERVICES, INC.
EMCARE SERVICES OF ILLINOIS, INC.
EMCARE SERVICES OF MASSACHUSETTS, INC.
EMCARE ANESTHESIA SERVICES, INC.
ECEP, INC.
COORDINATED HEALTH SERVICES, INC.
EM-CODE REIMBURSEMENT SOLUTIONS, INC.
EMERGENCY MEDICINE EDUCATION SYSTEMS, INC.
EMERGENCY SPECIALISTS OF ARKANSAS, INC. II
FIRST MEDICAL/EMCARE, INC.
HEALTHCARE ADMINISTRATIVE SERVICES, INC.
OLD STAT, INC.
REIMBURSEMENT TECHNOLOGIES, INC.
STAT PHYSICIANS, INC.
THE GOULD GROUP, INC.
TIFTON MANAGEMENT SERVICES, INC.
TUCKER EMERGENCY SERVICES, INC.
HELIX PHYSICIANS MANAGEMENT, INC.
NORMAN BRUCE JETTON, INC.
PACIFIC EMERGENCY SPECIALISTS MANAGEMENT, INC.
AMERICAN EMERGENCY PHYSICIANS MANAGEMENT, INC.
PHYSICIAN ACCOUNT MANAGEMENT, INC.
PROVIDER ACCOUNT MANAGEMENT, INC.
CHARLES T. MITCHELL, INC.
EMCARE OF MARYLAND LLC
By: EmCare Holdings Inc. and EmCare, Inc.,
its members
EMS MANAGEMENT LLC
By: AMR HoldCo, Inc. and EmCare HoldCo, Inc.,
its members
By: /s/ William A. Sanger
------------------------------------------
Name: William A. Sanger
Title: Chief Executive Officer
AMR BROCKTON, L.L.C.
By: American Medical Response of Massachusetts,
Inc., its sole member
By: /s/ Randel G. Owen
-----------------------------------------
Name: Randel G. Owen
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
BANC OF AMERICA SECURITIES LLC
By: /s/ Douglas M. Ingram
------------------------------------
Name: Douglas M. Ingram
Title: Principal
J.P. MORGAN SECURITIES INC.
By: /s/ Graham Conran
------------------------------------
Name: Graham Conran
Title: Vice President
ANNEX I
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of 10% Senior Subordinated Notes due
2015 (the "Registrable Securities") of AMR HoldCo, Inc. and EmCare HoldCo, Inc.
(collectively the "Issuers"), understands that the Issuers have filed or intend
to file with the Securities and Exchange Commission (the "SEC") a registration
statement on Form S-3 (the "Shelf Registration Statement") for the registration
and resale under Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act"), of the Registrable Securities in accordance with the terms of
the Registration Rights Agreement (the "Registration Rights Agreement") dated
February 10, 2005 between the Issuers, the guarantors party thereto and the
initial purchasers of the Registrable Securities named therein. The information
in this notice includes a summary of certain of the provisions of the
Registration Rights Agreement, which the undersigned beneficial holder should
review. A copy of the Registration Rights Agreement is available from the
Issuers upon request at the address set forth below. All capitalized terms used
but not otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions as described
below). Beneficial owners that do not complete this Notice and Questionnaire and
deliver it to the Issuers as provided below will not be named as selling
securityholders in the prospectus and therefore will not be permitted to sell
any Registrable Securities pursuant to the Shelf Registration Statement.
Beneficial owners must complete and deliver this Notice and Questionnaire no
later than the earlier of (i) 10 Business Days after receipt of a request
therefor or (ii) five business days prior to the effectiveness of the Shelf
Registration Statement in order for such beneficial owners to be named as
selling securityholders in the related prospectus at the time of its
effectiveness. Upon receipt of a completed Notice and Questionnaire from a
beneficial owner following the effectiveness of the Shelf Registration
Statement, together with such other information as the Issuers may reasonably
request, the Issuers will, as promptly as practicable but in any event within
five business days of such receipt, file such amendments to the Shelf
Registration Statement or supplements to the related prospectus as are necessary
to permit such holder to deliver such prospectus to purchasers of Registrable
Securities.
Certain legal consequences arise from being named as selling
securityholders in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Issuers of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has agreed
to indemnify and hold harmless the initial purchasers and each person, if any,
who controls the initial purchasers within the meaning of either Section 15 of
the Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the Issuers, and each person, if any, who
controls the Issuers within the meaning of either such section, against any and
all loss, liability, claim, damage and expense arising in connection with
statements concerning the undersigned made in the Shelf Registration Statement
or the related prospectus in reliance upon the information provided in this
Notice and Questionnaire.
The undersigned hereby provides the following information to the Issuers
and represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
_______________________________________________
(b) Full Legal Name of Registered Holder (if not the same as (a) above)
through which Registrable Securities listed in (3) below are held:
_______________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) through which Registrable Securities listed in
(3) below are held:
_______________________________________________
2. Address for Notices to Selling Securityholder:
_______________________________________________
_______________________________________________
_______________________________________________
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_______________________________________________
Telephone: ____________________________________
Fax: __________________________________________
Contact Person: _______________________________
3. Beneficial Ownership of Registrable Securities:
(a) Type and principal amount of Registrable Securities beneficially
owned:
_______________________________________________
(b) CUSIP No(s). of such Registrable Securities beneficially owned:
_______________________________________________
4. Beneficial Ownership of the Issuers Securities Owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is
not the beneficial or registered owner of any securities of the
Issuers' other than the Registrable Securities listed above in Item
(3).
(a) Type and amount of other securities beneficially owned by the
Selling Securityholder:
_______________________________________________
_______________________________________________
_______________________________________________
(b) CUSIP No(s). of such other securities beneficially owned:
_______________________________________________
_______________________________________________
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5. Relationship with the Issuers:
Except as set forth below, neither the undersigned nor any of
its affiliates, directors or principal equity holders (5% or more)
has held any position or office or has had any other material
relationship with the Issuers (or their predecessors or affiliates)
during the past three years.
State any exceptions here:
_______________________________________________
_______________________________________________
_______________________________________________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its
donees or pledgees) intends to distribute the Registrable Securities
listed above in Item (3) pursuant to the Shelf Registration
Statement only as follows (if at all): Such Registrable Securities
may be sold from time to time directly by the undersigned or
alternatively through underwriters or broker-dealers or agents. If
the Registrable Securities are sold through underwriters or
broker-dealers, the Selling Securityholder will be responsible for
underwriting discounts or commissions or agent's commissions. Such
Registrable Securities may be sold in one or more transactions at
fixed prices, at prevailing market prices at the time of sale, at
varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may
involve block transactions) (i) on any national securities exchange
or quotation service on which the Registrable Securities may be
listed or quoted at the time of sale, (ii) in the over-the-counter
market, (iii) in transactions otherwise than on such exchanges or
services or in the over-the-counter market, or (iv) through the
writing of options. In connection with sales of the Registrable
Securities or otherwise, the undersigned may enter into hedging
transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities, short and deliver Registrable
Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
_______________________________________________
_______________________________________________
_______________________________________________
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Note: In no event may such method(s) of distribution take the form
of an underwritten offering of the Registrable Securities without
the prior agreement of the Issuers and an undertaking by the Selling
Securityholder to pay certain expenses related to such offering.
The undersigned acknowledges that it understands its obligation to comply
with the provisions of the Exchange Act and the rules thereunder relating to
stock manipulation, particularly Regulation M thereunder (or any successor rules
or regulations), in connection with any offering of Registrable Securities
pursuant to the Shelf Registration Statement. The undersigned agrees that
neither it nor any person acting on its behalf will engage in any transaction in
violation of such provision.
The Selling Securityholder hereby acknowledges that there may be "black
out" periods during which Registrable Securities may not be sold pursuant to the
Shelf Registration Statement, as set forth in the Registration Rights Agreement.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons set
forth therein.
Pursuant to the Registration Rights Agreement, the Issuers have agreed
under certain circumstances to indemnify the Selling Securityholders against
certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Issuers of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices to the Issuers
hereunder and pursuant to the Registration Rights Agreement shall be made in
writing at the address set forth below. All notices to the undersigned pursuant
to the Registration Rights Agreement shall be made in writing at the address set
forth in paragraph 2, or any other address given to the Issuers by notice from
the undersigned.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above or
provided by the undersigned as contemplated by the immediately preceding
paragraph and the inclusion of such information in the Shelf Registration
Statement and the related prospectus. The undersigned understands that such
information will be relied upon by the Issuers in connection with the
preparation or amendment of the Shelf Registration Statement and the related
prospectus.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Beneficial Owner
By: _________________________________
Name: _______________________________
Title: ______________________________
Dated: __________________
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO AMR
HOLDCO, INC. AND EMCARE HOLDCO, INC. AT:
6200 South Syracuse Way, Suite 200
Greenwood Village, Colorado 80111
Attention: General Counsel
With a copy to:
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022
Attn: Lynn Toby Fisher
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