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EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of August 15, 2002 (the
"Agreement") is entered into by and among MedQuest, Inc., a Delaware corporation
(the "Company"), the guarantors listed in Schedule 1 hereto (the "Guarantors"),
and J.P. Morgan Securities Inc. ("JPMorgan"), UBS Warburg LLC and Wachovia
Securities, Inc. (the "Initial Purchasers").
The Company, the Guarantors and the Initial Purchasers are parties to the
Purchase Agreement dated August 8, 2002 (the "Purchase Agreement"), which
provides for the sale by the Company to the Initial Purchasers of $180,000,000
aggregate principal amount of the Company's 11 7/8% Senior Subordinated Notes
due 2012 (the "Securities"), which will be guaranteed on an unsecured senior
subordinated basis by each of the Guarantors. As an inducement to the Initial
Purchasers to enter into the Purchase Agreement, the Company and the Guarantors
have agreed to provide to the Initial Purchasers, the Market-Maker (as defined
herein) and their direct and indirect transferees the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
"Business Day" shall mean any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and
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supplements to such registration statement, in each case, including the
Prospectus contained therein, all exhibits thereto and any document incorporated
by reference therein.
"Exchange Securities" shall mean senior subordinated notes issued by the
Company and guaranteed by the Guarantors under the Indenture containing terms
identical to the Securities (except that the Exchange Securities will not be
subject to restrictions on transfer or to any increase in annual interest rate
for failure to comply with this Agreement) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.
"Guarantors" shall have the meaning set forth in the preamble and shall
also include any Guarantor's successors.
"Holders" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; PROVIDED that for purposes of Sections 4 and 6 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers; and PROVIDED,
FURTHER, that for purposes of Section 6 of this Agreement, the term Holders
shall include the Market-Maker.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Indenture" shall mean the Indenture relating to the Securities dated as
of August 15, 2002 among the Company, the Guarantors and Wachovia Bank, National
Association, as trustee, and as the same may be amended from time to time in
accordance with the terms thereof.
"JPMorgan" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; PROVIDED that whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities owned directly or
indirectly by the Company or any of its affiliates shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage or amount.
"Market-Maker" shall have the meaning set forth in Section 5(a).
"Market-Making Registration Statement" shall have the meaning set forth
in Section 5(a)(i).
"Order" shall mean any judgment, writ, decree, declaration, injunction,
order, stipulation, compliance agreement or settlement agreement issued or
imposed by, or entered into with, a governmental entity or arbitrator.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
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"Prospectus" shall mean the prospectus included in a Registration
Statement, including (i) any preliminary prospectus, (ii) any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus and (iii) except where the
context otherwise requires, any prospectus (or amendment or supplement thereto)
filed with the SEC pursuant to Section 5 hereof, and in each case including any
document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; PROVIDED that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged for Exchange Securities
or disposed of pursuant to such Registration Statement, (ii) when such
Securities are eligible to be sold pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the Securities Act or (iii)
when such Securities cease to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation (i) all SEC and any National Association
of Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any
Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Company and the
Guarantors and, in the case of a Shelf Registration Statement, the fees and
disbursements of one counsel for the Holders (which counsel shall be selected by
the Majority Holders and which counsel may also be counsel for the Initial
Purchasers), (viii) the reasonable fees and disbursements of counsel for the
Market-Maker (other than in-house counsel for the Market-Maker) and (ix) the
fees and disbursements of the independent public accountants of the Company and
the Guarantors, including the expenses of any special audits or "comfort"
letters required by or incident to the performance of and compliance with this
Agreement; provided that Registration Expenses shall exclude fees and expenses
of counsel to the Underwriters (other than fees and expenses set forth in clause
(ii) above) and fees and expenses of the Holders, including underwriting or
broker-dealer discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities by a Holder (other than fees
and expenses set forth in clause (vii) above).
"Registration Statement" shall mean any registration statement of the
Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, including,
without limitation, the Market-Making Registration
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Statement, and all amendments and supplements to any such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and any document incorporated
by reference therein.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Additional Interest Date" shall have the meaning set forth in
Section 2(d) hereof.
"Shelf Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantors that covers all the Registrable
Securities (but no other securities unless approved by the Holders whose
Registrable Securities are to be covered by such Shelf Registration Statement)
on an appropriate form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Shelf Request" shall have the meaning set forth in Section 2(b) hereof.
"Staff" shall mean the staff of the SEC.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under the
Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold by the Holders to an Underwriter for reoffering to the
public.
2. REGISTRATION UNDER THE SECURITIES ACT. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the Staff, the
Company and the Guarantors shall use their reasonable best efforts to (i) cause
to be filed an Exchange Offer Registration Statement covering an offer to the
Holders to exchange all the Registrable Securities for Exchange Securities and
(ii) have such Registration Statement remain effective until 180 days after the
closing of the Exchange Offer (the "Applicable Period"). The Company and the
Guarantors shall commence the Exchange Offer promptly after the Exchange Offer
Registration Statement is declared effective by the SEC and use their reasonable
best efforts to complete the Exchange Offer not later than 60 days after such
effective date.
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The Company and the Guarantors shall commence the Exchange Offer by
mailing the related Prospectus, appropriate letters of transmittal and other
accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly tendered and not
properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 20 Business Days from the date such notice is mailed)
(the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest but will not retain any
rights under this Agreement;
(iv) that any Holder electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner specified
in the notice, prior to the close of business on the last Exchange Date;
and
(v) that any Holder will be entitled to withdraw its
election, not later than the close of business on the last Exchange Date,
by sending to the institution and at the address (located in the Borough
of Manhattan, The City of New York) specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for
exchange and a statement that such Holder is withdrawing its election to
have such Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Company and the Guarantors in writing in the
applicable letter of transmittal that (i) any Exchange Securities to be received
by it will be acquired in the ordinary course of its business, (ii) at the time
of the commencement of the Exchange Offer and at the time of the consummation of
the Exchange Offer it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Securities in violation of the provisions of the Securities Act,
(iii) it is not an "affiliate" (within the meaning of Rule 405 under the
Securities Act) of the Company or any Guarantor and (iv) if such Holder is a
broker-dealer that will receive Exchange Securities for its own account in
exchange for Registrable Securities, such Holder acquired the Registrable
Securities as a result of market-making or other trading activities, and such
Holder will deliver a Prospectus in connection with any resale of such Exchange
Securities.
As soon as practicable after the last Exchange Date, the Company and the
Guarantors shall:
(i) accept for exchange Registrable Securities or portions
thereof validly tendered and not properly withdrawn pursuant to the
Exchange Offer; and
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(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted
for exchange by the Company and issue, and cause the Trustee to promptly
authenticate and deliver to each Holder, Exchange Securities equal in
principal amount to the principal amount of the Registrable Securities
surrendered by such Holder, provided that, in the case of any Registrable
Securities held in global form by a depositary, the delivery to such
depositary of one or more authenticated Exchange Securities in global
form in an equivalent principal amount for the account of such Holders or
a nominee thereof in accordance with the Indenture shall satisfy such
authentication and delivery requirements.
The Company and the Guarantors shall use their reasonable best efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than (i) that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff, (ii) that no action or proceeding shall have been instituted or
threatened in any court or by any governmental agency with respect to the
Exchange Offer which, in the Company's judgment, would reasonably be expected to
impair its ability to proceed with the Exchange Offer and (iii) any such other
conditions as shall be agreed upon by the Company and the Initial Purchasers.
(b) In the event that (i) the Company and the Guarantors determine
that the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be completed as soon as practicable after the last Exchange
Date because it would violate any applicable law or applicable interpretations
of the Staff, (ii) the Exchange Offer is not for any other reason completed by
March 28, 2003, or (iii) upon the receipt of a written request (a "Shelf
Request") from any Initial Purchaser that it holds Registrable Securities that
are ineligible to be exchanged in the Exchange Offer, then the Company and the
Guarantors shall use their reasonable best efforts to cause to be filed as soon
as practicable after such determination, date or request, as the case may be, a
Shelf Registration Statement providing for the sale of all the Registrable
Securities by the Holders thereof and to have such Shelf Registration Statement
declared effective by the SEC. In the event the Initial Purchasers hold an
unsold allotment of the Securities on the 180th day after the date of this
Agreement, J.P. Morgan Securities Inc. or the relevant Initial Purchaser shall
notify the Company of such unsold allotment.
In the event that the Company and the Guarantors are required to file a
Shelf Registration Statement pursuant to clause (iii) of the preceding sentence,
the Company and the Guarantors shall use their reasonable best efforts to file
and have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer.
The Company and the Guarantors agree to use their reasonable best efforts
to keep the Shelf Registration Statement continuously effective until the
expiration of the earlier of (i) the period referred to in Rule 144(k) (or any
similar rule then in force but not Rule 144A) under the Securities Act with
respect to the Registrable Securities or (ii) such shorter period that will
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terminate when all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement (in any
such case, the "Shelf Effectiveness Period"). The Company and the Guarantors
further agree to supplement or amend the Shelf Registration Statement and the
related Prospectus if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder of Registrable Securities with respect to information relating to such
Holder, and to use their reasonable best efforts to cause any such amendment to
become effective and such Shelf Registration Statement and Prospectus to become
usable as soon as thereafter practicable. The Company and the Guarantors agree
to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) and
Section 2(b) hereof. Each Holder shall pay all underwriting or broker-dealer
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Exchange
Offer Registration Statement if the Holder instructs the Company to register the
Exchange Securities in the name of a person other than such Holder.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC.
In the event that either the Exchange Offer is not completed or the Shelf
Registration Statement, if required pursuant to Section 2(b)(i) or Section
2(b)(ii) hereof, is not declared effective on or prior to March 28, 2003, the
interest rate on the Registrable Securities will be increased by 1.00% per annum
payable commencing from March 29, 2003 to and until the date the Exchange Offer
is completed or the Shelf Registration Statement, if required hereby, is
declared effective by the SEC or the Securities become freely tradable under the
Securities Act. In the event the Company receives a Shelf Request pursuant to
Section 2(b)(iii), and the Shelf Registration Statement required to be filed
thereby is not declared effective by the later of (x) February 26, 2003 or (y)
90 days after the delivery of such Shelf Request (such later date being
hereinafter referred to as the "Shelf Additional Interest Date"), then interest
rate on the Registrable Securities will be increased by 1.00% per annum payable
commencing from one day after the Shelf Additional Interest Date until the Shelf
Registration Statement is declared effective.
Notwithstanding the foregoing, the Company and the Guarantors may,
pending the announcement of a potential acquisition, divestiture of assets or
other material corporate transaction, issue a notice that the Shelf Registration
Statement is no longer effective or the Prospectus contained therein is no
longer usable for offers and sales of Registrable Securities and may issue any
notice suspending use of the Shelf Registration Statement or the Prospectus
contained therein and in the event that the aggregate number of days in any
consecutive 360-day period for which all such notices are issued and effective
exceed 45 days in the aggregate, then
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the interest rate on the Registrable Securities will be increased by 1.00% per
annum commencing on the 46th day in such 12-month period. The Company and the
Guarantors may give any such notice only twice during any 365-day period and any
such suspensions shall not exceed 30 days for each suspension and there shall
not be more than two suspensions in effect during any 365-day period. The
provisions of the foregoing sentence shall also be applicable to the Exchange
Offer Registration Statement during the Applicable Period, PROVIDED that the
Applicable Period shall be extended for the number of days that the use of the
Exchange Offer Registration Statement is suspended. If the Shelf Registration
Statement has been declared effective and thereafter either ceases to be
effective or the Prospectus contained therein ceases to be usable at any time
during the Shelf Effectiveness Period, and such failure to remain effective or
usable exists for more than 45 days (whether or not consecutive) in any 12-month
period, then the interest rate on the Registrable Securities will be increased
by 1.00% per annum commencing on the 46th day in such 12-month period and ending
on such date that the Shelf Registration Statement has again been declared
effective or the Prospectus again becomes usable.
Notwithstanding anything to the contrary in this Section 2(d), neither
the Company nor any of the Guarantors shall be required to pay an increased
interest rate on the Registrable Securities to a Holder of Registrable
Securities during the period such Holder failed to comply with its obligations
to make the representations set forth in the third paragraph of Section 2(a) in
connection with any Exchange Offer or, in the case of a Shelf Registration
Statement failed to provide the information required to be provided by it, if
any, pursuant to Section 3(b), and the obligations to pay the increased rate of
interest shall resume upon the curing of such Holder's default.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company and the Guarantors acknowledge that any failure by
the Company or the Guarantors to comply with their obligations under Section
2(a) and Section 2(b) hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company's and
the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Notwithstanding anything to the contrary in this Section 2(e), any Holder that
failed to comply with its obligations to make the representations set forth in
the third paragraph of Section 2(a) in connection with any Exchange Offer or, in
the case of a Shelf Registration Statement failed to provide the information
requested to be provided by it, if any, pursuant to Section 3(b), shall not be
entitled to the relief described in this Section 2(e) unless such failure is
cured or the Company and the Guarantors' failure to comply was not caused by
such Holder's default.
3. REGISTRATION PROCEDURES. (a) In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantors
shall:
(i) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and the Guarantors, (y) shall, in the case of a Shelf Registration,
be available for the sale of the Registrable Securities by the selling Holders
thereof in accordance with Section 2(b) and (z) shall comply as to form in all
material respects with the requirements of the applicable form and include all
financial
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statements required by the SEC to be filed therewith; and use their reasonable
best efforts to cause such Registration Statement to become effective and remain
effective for the applicable period in accordance with Section 2 hereof;
(ii) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance with
Section 2 hereof and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that is
applicable to transactions by brokers or dealers with respect to the Registrable
Securities or Exchange Securities;
(iii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities included within the coverage of the Shelf Registration
Statement, to counsel for the Initial Purchasers, to counsel for such Holders
and to each Underwriter of an Underwritten Offering of Registrable Securities,
if any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto, in order to
facilitate the sale or other disposition of the Registrable Securities
thereunder; and the Company and the Guarantors consent to the use of such
Prospectus and any amendment or supplement thereto in accordance with applicable
law by each of the selling Holders of Registrable Securities and any such
Underwriters in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(iv) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; cooperate
with the Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Holder
to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; PROVIDED that neither the Company nor any
Guarantor shall be required to (1) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (2) file any general consent or subject
itself to service of process in any such jurisdiction or (3) subject itself to
taxation in any such jurisdiction if it is not so subject;
(v) in the case of a Shelf Registration, notify each Holder of
Registrable Securities included within the coverage of the Shelf Registration
Statement, counsel for such Holders and counsel for the Initial Purchasers
promptly and, if requested by any such Holder or counsel, confirm such advice in
writing (1) when a Registration Statement has become effective and when any
post-effective amendment thereto has been filed and becomes effective, (2) of
any request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (3) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any
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proceedings for that purpose, (4) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company or any
Guarantor contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to an offering of such Registrable
Securities cease to be true and correct in all material respects or if the
Company or any Guarantor receives any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (5) of the
happening of any event during the period a Shelf Registration Statement is
effective that makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or that requires the making of
any changes in such Registration Statement or Prospectus in order to make the
statements therein not misleading and (6) of any determination by the Company or
any Guarantor that a post-effective amendment to a Registration Statement would
be appropriate;
(vi) use their reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(vii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities included within the coverage of the Shelf Registration
Statement, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto (without any documents
incorporated therein by reference or exhibits thereto, unless requested in
writing);
(viii) in the case of a Shelf Registration, cooperate with the Holders
of Registrable Securities included within the coverage of such Shelf
Registration to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends and enable such Registrable Securities to be issued in such
denominations and registered in such names (consistent with the provisions of
the Indenture) as the selling Holders may reasonably request in writing at least
one Business Day prior to the closing of any sale of Registrable Securities;
(ix) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(a)(v)(5) hereof, use their reasonable best
efforts to prepare and file with the SEC a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and the Company
and the Guarantors shall notify the Holders of Registrable Securities to suspend
use of the Prospectus as promptly as practicable after the occurrence of such an
event, and such Holders hereby agree (a) to suspend use of the Prospectus until
the Company and the Guarantors have amended or supplemented the Prospectus to
correct such misstatement or omission and (b) to maintain the information
contained in such notice and the existence of such notice confidential unless
and until the information is made publicly available by the Company or the
Guarantors or otherwise (other than by action of the Holders) becomes publicly
available;
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(x) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or of any document that is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, to the Holders of Registrable Securities included within
the coverage of such Shelf Registration and their counsel) and make such of the
representatives of the Company and the Guarantors as shall be reasonably
requested by the Initial Purchasers or their counsel (and, in the case of a
Shelf Registration Statement, the Holders of Registrable Securities included
within the coverage of such Shelf Registration or their counsel) available for
discussion of such document; and the Company and the Guarantors shall not, at
any time after initial filing of a Registration Statement, file any Prospectus,
any amendment of or supplement to a Registration Statement or a Prospectus, or
any document that is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Initial Purchasers and their counsel
(and, in the case of a Shelf Registration Statement, the Holders of Registrable
Securities included within the coverage of such Shelf Registration and their
counsel) shall not have previously been advised and furnished a copy or to which
the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities included within
the coverage of such Shelf Registration or their counsel) shall reasonably
object within a reasonable period of time after receipt of such documents and in
each case after having been afforded the opportunity to diligence such matters
with the Company and the Guarantors;
(xi) obtain a CUSIP number for all Exchange Securities not later than
the effective date of a Registration Statement;
(xii) cause the Indenture to be qualified under the Trust Indenture Act
in connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be; cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be
so qualified in accordance with the terms of the Trust Indenture Act; and
execute, and use their reasonable best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(xiii) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable Securities
included within the coverage of such Shelf Registration (an "Inspector"), any
Underwriter participating in any disposition pursuant to such Shelf Registration
Statement, and attorneys and accountants designated by the Holders and any such
Underwriter, at reasonable times and in a reasonable manner, all pertinent
financial and other records, documents and properties of the Company and the
Guarantors, and cause the respective officers, directors and employees of the
Company and the Guarantors to supply all information reasonably requested by any
such Inspector, Underwriter, attorney or accountant in connection with the
performance of their "due diligence" investigation or marketing efforts with
respect to a Shelf Registration Statement; PROVIDED that if any such information
is identified by the Company or any Guarantor as being confidential or
proprietary and the disclosure of such information is not necessary so that the
Prospectus does 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 not misleading, each Person receiving such information shall
take such actions
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12
as are reasonably necessary to protect the confidentiality of such information
to the extent such action is otherwise not inconsistent with, an impairment of
or in derogation of the rights and interests of any Inspector, Holder or
Underwriter;
(xiv) in the case of a Shelf Registration, use their reasonable best
efforts to cause all Registrable Securities included within the coverage of such
Shelf Registration to be listed on any securities exchange or any automated
quotation system on which similar securities issued or guaranteed by the Company
or any Guarantor are then listed if requested by the Majority Holders, to the
extent such Registrable Securities satisfy applicable listing requirements;
(xv) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, promptly incorporate in a Prospectus
supplement or post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein so that such
Prospectus does 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 not misleading with respect to the information required to be
stated therein with respect to such Holder and make all required filings of such
Prospectus supplement or such post-effective amendment as soon as the Company
has received notification of the matters to be incorporated in such filing; and
(xvi) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority in principal amount of the
Registrable Securities included within the coverage of such Shelf Registration)
in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities with respect
to the business of the Company and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and confirm the same
if and when requested, (ii) in the case of an Underwritten Offering obtain
opinions of counsel to the Company and the Guarantors (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to the
Holders and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Registrable Securities included within the
coverage of such Shelf Registration, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) in the case of an
Underwritten Offering obtain "comfort" letters from the independent certified
public accountants of the Company and the Guarantors (and, if necessary, any
other certified public accountant of any subsidiary of the Company or any
Guarantor, or of any business acquired by the Company or any Guarantor for which
financial statements and financial data are or are required to be included in
the Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities included within the coverage of such Shelf Registration,
such letters to be in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with underwritten
offerings and (iv) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority in principal amount of the Registrable
Securities included within the coverage of such Shelf Registration being sold or
the Underwriters, and which are customarily delivered in underwritten offerings,
to evidence the
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13
continued validity of the representations and warranties of the Company and the
Guarantors made pursuant to clause (i) above and in the case of an Underwritten
Offering to evidence compliance with any customary conditions contained in an
underwriting agreement.
(b) In the case of a Shelf Registration Statement, upon request of the
Company and the Guarantors, each Holder of Registrable Securities included
within the coverage of such Shelf Registration shall be required to furnish to
the Company in writing after receipt of request therefor (within a reasonable
period of time of such request) the information with respect to such Holder
specified in Items 507 and 508 (as applicable) of Regulation S-K under the
Securities Act, and such other information regarding such Holder and the
proposed disposition by such Holder of such Registrable Securities as the
Company and the Guarantors may from time to time reasonably request in writing,
and the Company may exclude from such Shelf Registration Statement the
Registrable Securities of any Holder that fails to furnish such information
within a reasonable period of time of such request until the delivery of such
written information. Each Holder of Registrable Securities included within the
coverage of a Shelf Registration Statement, by its participation in the Shelf
Statement, shall be deemed to agree to furnish the Company and the Guarantors
all information concerning such Holder required to be described in order to make
the information previously furnished by such Holder to the Company and the
Guarantors not materially misleading.
(c) In the case of a Shelf Registration Statement, each Holder of
Registrable Securities included within the coverage of such Shelf Registration
agrees that, upon receipt of any notice from the Company and the Guarantors of
the happening of any event of the kind described in Section 3(a)(v)(3) or
3(a)(v)(5) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Shelf Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(a)(ix) hereof and, if so directed by the Company and
the Guarantors, such Holder will deliver to the Company and the Guarantors all
copies in its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities that is
current at the time of receipt of such notice.
(d) If the Company and the Guarantors shall give any such notice to
suspend the disposition of Registrable Securities pursuant to a Registration
Statement, the Company and the Guarantors shall extend the period during which
the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. The Company and the Guarantors may give any such notice only
twice during any 365-day period and any such suspensions shall not exceed 30
days for each suspension and there shall not be more than two suspensions in
effect during any 365-day period.
(e) The Holders of Registrable Securities included within the coverage of
a Shelf Registration Statement who desire to do so may sell such Registrable
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers (the
"Underwriters") that will administer the offering will be selected by the
Majority Holders of the Registrable Securities included in such offering,
subject to the consent of the Company and the Guarantors (which consent shall
not be unreasonably
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14
withheld or delayed), and such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith.
4. PARTICIPATION OF BROKER-DEALERS IN EXCHANGE OFFER. (a) The Staff
has taken the position that any broker-dealer that receives Exchange Securities
for its own account in the Exchange Offer in exchange for Securities that were
acquired by such broker-dealer as a result of market-making or other trading
activities (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staff's position
that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Exchange Securities for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions
of this Agreement, the Company and the Guarantors agree to amend or supplement
the Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(a)(ix), for a period of up to 180 days
after the last Exchange Date (as such period may be extended pursuant to Section
3(d) of this Agreement), if requested in writing by the Initial Purchasers or by
one or more Participating Broker-Dealers, in order to expedite or facilitate the
disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above. The
Company and the Guarantors further agree that Participating Broker-Dealers shall
be authorized to deliver such Prospectus during such period in connection with
the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Company,
any Guarantor or any Holder with respect to any request that they may make
pursuant to Section 4(b) above.
5. MARKET-MAKING. (a) For so long as any of the Securities or
Exchange Securities are outstanding and JPMorgan (in such capacity, the
"Market-Maker") or any of its affiliates (as defined in the rules and
regulations of the SEC) owns any equity securities of the Company, the
Guarantors or any of their affiliates and proposes to make a market in the
Securities or Exchange Securities as part of its business in the ordinary
course, the following provisions shall apply for the sole benefit of the
Market-Maker:
(i) The Company and the Guarantors shall (A) on the earlier
of the date that the Exchange Offer Registration Statement or the Shelf
Registration Statement is filed with the SEC, file a registration
statement (the "Market-Making Registration Statement") (which may be the
Exchange Offer Registration Statement or the Shelf Registration Statement
if permitted by the rules and regulations of the SEC) and use their best
efforts to cause such Market-Making Registration Statement to be declared
effective by the SEC on or prior to the consummation of the Exchange
Offer or the effective date of the Shelf
<Page>
15
Registration Statement, as applicable; (B) periodically amend such
Market-Making Registration Statement so that the information contained
therein complies with the requirements of Section 10(a) under the
Securities Act; (C) amend the Market-Making Registration Statement or
supplement the related Prospectus when necessary to reflect any material
changes in the information provided therein; and (D) amend the
Market-Making Registration Statement when required to do so in order to
comply with Section 10(a)(3) of the Securities Act; PROVIDED, HOWEVER,
that (1) prior to filing the Market-Making Registration Statement, any
amendment thereto or any supplement to the related Prospectus, the
Company will furnish to the Market-Maker copies of all such documents
proposed to be filed, which documents will be subject to the review of
the Market-Maker and its counsel (which may be in-house counsel), (2) the
Company and the Guarantors will not file the Market-Making Registration
Statement, any amendment thereto or any supplement to the related
Prospectus to which the Market-Maker and its counsel shall reasonably
object unless the Company is advised by counsel that such Market-Making
Registration Statement, amendment or supplement in the form presented to
the Market-Maker is required to be filed and (3) the Company will provide
the Market-Maker and its counsel with copies of the Market-Making
Registration Statement and each amendment and supplement filed.
(ii) The Company shall notify the Market-Maker and, if
requested by the Market-Maker, confirm such advice in writing, (A) when
any post-effective amendment to the Market-Making Registration Statement
or any amendment or supplement to the related Prospectus has been filed,
and, with respect to any post-effective amendment, when the same has
become effective; (B) of any request by the SEC for any post-effective
amendment to the Market-Making Registration Statement, any supplement or
amendment to the related Prospectus or for additional information; (C)
the issuance by the SEC of any stop order suspending the effectiveness of
the Market-Making Registration Statement or the initiation of any
proceedings for that purpose; (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities or Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceedings for such purpose; (E) of the
happening of any event that makes any statement made in the Market-Making
Registration Statement, the related Prospectus or any amendment or
supplement thereto untrue or that requires the making of any changes in
the Market-Making Registration Statement, such Prospectus or any
amendment or supplement thereto, in order to make the statements therein
not misleading; and (F) of any advice from a nationally recognized
statistical rating organization that such organization has placed the
Company under surveillance or review with negative implications or has
determined to downgrade the rating of the Securities or Exchange
Securities or any other debt obligation of the Company whether or not
such downgrade shall have been publicly announced.
(iii) If any event contemplated by Section 5(a)(ii)(B) through
(E) occurs during the period for which the Company and the Guarantors are
required to maintain an effective Market-Making Registration Statement,
the Company and the Guarantors shall promptly prepare and file with the
SEC a post-effective amendment to the Market-Making Registration
Statement or a supplement to the related Prospectus or file any other
required document so that the Prospectus will not include an untrue
statement of a
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16
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(iv) In the event of the issuance of any stop order suspending
the effectiveness of the Market-Making Registration Statement or of any
order suspending the qualification of the Securities or Exchange
Securities for sale in any jurisdiction, the Company and the Guarantors
shall use promptly their reasonable best efforts to obtain its
withdrawal.
(v) The Company shall furnish to the Market-Maker, without
charge, (i) at least one conformed copy of the Market-Making Registration
Statement and any post-effective amendment thereto; and (ii) as many
copies of the related Prospectus and any amendment or supplement thereto
as the Market-Maker may reasonably request.
(vi) The Company and the Guarantors shall consent to the use
of the Prospectus contained in the Market-Making Registration Statement
or any amendment or supplement thereto by the Market-Maker in connection
its market-making activities.
(vii) Notwithstanding the foregoing provisions of this Section
5, the Company and the Guarantors may for valid business reasons,
including, without limitation, a potential acquisition, divestiture of
assets or other material corporate transaction, issue a notice that the
Market-Making Registration Statement is no longer effective or the
Prospectus included therein is no longer usable for offers and sales of
Securities or Exchange Securities and may issue any notice suspending use
of the Market-Making Registration Statement required under applicable
securities laws to be issued; PROVIDED that the use of the Market-Making
Registration Statement shall not be suspended for more than 60 days in
the aggregate in any consecutive 12 month period. The Market-Maker agrees
that upon receipt of any notice from the Company pursuant to this Section
5(a)(vii), it will discontinue use of the Market-Making Registration
Statement until receipt of copies of the supplemented or amended
Prospectus relating thereto or until advised in writing by the Company
that the use of the Market-Making Registration Statement may be resumed.
(b) In connection with the Market-Making Registration Statement, the
Company shall (i) make reasonably available for inspection by a representative
of, and counsel acting for, the Market-Maker all relevant financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries and (ii) use its reasonable best efforts to have its officers,
directors, employees, accountants and counsel supply all relevant information
reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of the Market-Making Registration
Statement, the Company and the Guarantors will use their reasonable best efforts
to register or qualify such Securities or Exchange Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as the Market-Maker
reasonably requests in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the
Securities or Exchange Securities covered by the Market-Making Registration
Statement; PROVIDED that neither the Company nor any Guarantor shall be required
to (i) qualify as a foreign corporation
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17
or other entity or as a dealer in securities in any jurisdiction where it would
not otherwise be required to so qualify, (ii) file any general consent to
subject itself to service of process in any such jurisdiction or (iii) subject
itself to taxation in any such jurisdiction if it is not subject.
(d) The Company represents that the Market-Making Registration
Statement, any post-effective amendments thereto, any amendments or supplements
to the related Prospectus and any documents filed by them under the Exchange Act
will, when they become effective or are filed with the SEC, as the case may be,
conform in all respects to the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the SEC thereunder and will not,
as of the effective date of such Market-Making Registration Statement or
post-effective amendments and as of the filing date of amendments or supplements
to such Prospectus or filings under the Exchange Act, 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 light of the
circumstances under which they were made not misleading; PROVIDED that no
representation or warranty is made as to information contained in or omitted
from the Market-Making Registration Statement or the related Prospectus in
reliance upon and in conformity with written information furnished to the
Company by the Market-Maker specifically for inclusion therein, which
information the parties hereto agree will be limited to the statements
concerning the Market-Making activities of the Market-Maker to be set forth on
the cover page and in the "Plan of Distribution" section of the Prospectus (the
"Market-Maker's Information").
(e) At the time of effectiveness of the Market-Making Registration
Statement (unless it is the same as the time of effectiveness of the Exchange
Offer Registration Statement) and concurrently with each time the Market-Making
Registration Statement or the related Prospectus shall be amended or such
Prospectus shall be supplemented, the Company shall (if requested in writing by
the Market-Maker) furnish the Market-Maker and its counsel with a certificate of
its Chairman of the Board of Directors or Chief Financial Officer to the effect
that:
(i) the Market-Making Registration Statement has been
declared effective;
(ii) in the case of an amendment or supplement, such amendment
has become effective under the Securities Act as of the date and time
specified in such certificate, if applicable; if required, such amendment
or supplement to the Prospectus was filed with the SEC pursuant to the
subparagraph of Rule 424(b) under the Securities Act specified in such
certificate on the date specified therein;
(iii) to the knowledge of such officers, no stop order
suspending the effectiveness of the Market-Making Registration Statement
has been issued and no proceeding for that purpose is pending or
threatened by the SEC; and
(iv) such officers have carefully examined the Market-Making
Registration Statement and the Prospectus (and, in the case of an
amendment or supplement, such amendment or supplement) and as of the date
of such Market-Making Registration Statement, amendment or supplement, as
applicable, the Market-Making Registration Statement and the Prospectus,
as amended or supplemented, if applicable, did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
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18
(f) At the time of effectiveness of the Market-Making Registration
Statement (unless it is the same as the time of effectiveness of the Exchange
Offer Registration Statement) and concurrently with each time the Market-Making
Registration Statement or the related Prospectus shall be amended or such
Prospectus shall be supplemented, the Company shall (if requested in writing by
the Market-Maker) furnish the Market-Maker and its counsel with the written
opinion of counsel for the Company satisfactory to the Market-Maker to the
effect that:
(i) the Market-Making Registration Statement has been
declared effective;
(ii) in the case of an amendment or supplement, such amendment
has become effective under the Securities Act as of the date and time
specified in such opinion, if applicable; if required, such amendment or
supplement to the Prospectus was filed with the SEC pursuant to the
subparagraph of Rule 424(b) under the Securities Act specified in such
opinion on the date specified therein;
(iii) to the knowledge of such counsel, no stop order
suspending the effectiveness of the Market-Making Registration Statement
has been issued and no proceeding for that purpose is pending or
threatened by the SEC; and
(iv) such counsel has reviewed the Market-Making Registration
Statement and the Prospectus (and, in the case of an amendment or
supplement, such amendment or supplement) and participated with officers
of the Company and independent public accountants for the Company in the
preparation of such Market-Making Registration Statement and Prospectus
(and, in the case of an amendment or supplement, such amendment or
supplement) and has no reason to believe that (except for the financial
statements and other financial and statistical data contained therein as
to which no belief is required) as of the date of such Market-Making
Registration Statement, amendment or supplement, as applicable, the
Market-Making Registration Statement and the Prospectus, as amended or
supplemented, if applicable, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(g) At the time of effectiveness of the Market-Making Registration
Statement (unless it is the same as the time of effectiveness of the Exchange
Offer Registration Statement) and concurrently with each time the Market-Making
Registration Statement or the related Prospectus shall be amended or such
Prospectus shall be supplemented to include audited annual financial
information, the Company shall (if requested in writing by the Market-Maker)
furnish the Market-Maker and its counsel with a letter of PricewaterhouseCoopers
LLP (or other independent public accountants for the Company or the Guarantors
of nationally recognized standing) in form satisfactory to the Market-Maker,
addressed to the Market-Maker and dated the date of delivery of such letter, (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the SEC and, (ii) in all other respects, substantially in the form of the
letter delivered to the Initial Purchasers pursuant to Section 5(f) of the
Purchase Agreement, with, in the case of an amendment or supplement to include
audited financial information, such changes as may be necessary to reflect the
amended or supplemented financial information.
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19
(h) The Company and the Guarantors, on the one hand, and the
Market-Maker, on the other hand, hereby agree to indemnify each other, and, if
applicable, contribute to the other, in accordance with Section 6 of this
Agreement.
(i) The Company will comply with the provisions of this Section 5 at
its own expense and will reimburse the Market-Maker for its expenses associated
with this Section 5 (including reasonable fees of counsel, other than in-house
counsel of the Market-Maker).
(j) The agreements contained in this Section 5 and the
representations, warranties and agreements contained in this Agreement shall
survive all offers and sales of the Securities and Exchange Securities and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
(k) For purposes of this Section 5, any reference to the terms
"amend", "amendment" or "supplement" with respect to the Market-Making
Registration Statement or the Prospectus contained therein shall be deemed to
refer to and include the filing under the Exchange Act of any document deemed to
be incorporated therein by reference.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and each
Guarantor, jointly and severally, agree to indemnify and hold harmless (i) each
Initial Purchaser, the Market-Maker and each Holder, their respective
affiliates, directors and officers and each Person, if any, who controls any
Initial Purchaser, the Market-Maker or any Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses reasonably incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Market-Making Registration Statement or any Prospectus
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, (x) any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to any Initial Purchaser, information relating to any Holder or the
Market-Maker's Information furnished to the Company in writing through JPMorgan,
the Market Maker or any selling Holder expressly for use therein and (y) any
untrue statement or omission or alleged untrue statement or omission that was
contained or made in any related preliminary Prospectus, if both (A) a copy of
the final Prospectus was not sent or given by such initial Purchaser,
Market-Maker or Holder to such Person asserting any such loss, claim, damage or
liability on or prior to the written confirmation of the sale of such Securities
or Exchange Securities to such Person and (B) the untrue statement in or
omission from the related preliminary Prospectus was corrected in the final
Prospectus and the Company complied with its agreements in Section 3(a)(ii),
3(a)(iii), 3(a)(vii), 3(a)(ix) or 5(a)(v), as applicable and (ii) the
Market-Maker from and against any and all losses, claims, damages and
liabilities (including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several that arise
out of, or are based upon, any material breach by the
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20
Company of its representations, warranties and agreements contained in Section
5. In connection with any Underwritten Offering permitted by Section 3, the
Company and the Guarantors, jointly and severally, will also indemnify the
Underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their respective affiliates and
each Person who controls such Persons (within the meaning of the Securities Act
and the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Guarantors, the Initial Purchasers and the other
selling Holders, their respective affiliates, the directors of the Company and
the Guarantors, each officer of the Company and the Guarantors who signed the
Registration Statement and each Person, if any, who controls the Company, the
Guarantors, any Initial Purchaser and any other selling Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the indemnity set forth in paragraph (a) above, but only with
respect to any losses, claims, damages or liabilities that arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to such Holder furnished to the Company in writing by such Holder expressly for
use in any Registration Statement or any Prospectus.
(c) The Market-Maker agrees to indemnify and hold harmless the
Company and the Guarantors, and their respective affiliates, the directors and
officers of the Company and the Guarantors who signed the Market-Marking
Registration Statement and each Person, if any, who controls the Company or the
Guarantors within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph
(a) above, but only with respect to any losses, claims, damages or liabilities
that arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any Market-Maker's Information furnished to the Company in writing by the
Market-Maker expressly for use in any Market-Marking Registration Statement or
any Prospectus.
(d) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to
paragraph (a), (b) or (c) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; PROVIDED that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
PROVIDED, FURTHER, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 6. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 6
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred upon
presentation of invoices. In any such proceeding, any Indemnified Person shall
have the right to retain its own
<Page>
21
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred upon presentation of invoices. Any such separate firm (x) for any
Initial Purchaser, its affiliates, directors and officers and any control
Persons of such Initial Purchaser or the Market-Maker shall be designated in
writing by JPMorgan, (y) for any Holder, its affiliates, directors and officers
and any control Persons of such Holder shall be designated in writing by the
Majority Holders and (z) in all other cases shall be designated in writing by
the Company. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for the reasonable
fees and expenses of counsel as contemplated by this paragraph, the Indemnifying
Person shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (A) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(e) If the indemnification provided for in paragraphs (a), (b) and
(c) above is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors from the initial offering
and sale of the Securities and the Exchange Securities, on the one hand, and by
the Holders from receiving Securities or Exchange Securities registered under
the Securities Act, on the other hand, or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company and the Guarantors on
<Page>
22
the one hand and the Holders or the Market-Maker on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Guarantors on the one hand and the Holders
or the Market-Maker on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantors or by the Holders or
Market-Maker's Information, as applicable, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(f) The Company, the Guarantors, the Holders and the Marker-Maker
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (e) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph
(e) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 6, in no event shall a Holder be required to
contribute any amount in excess of the amount by which the total price at which
the Securities or Exchange Securities sold by such Holder exceeds the amount of
any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, nor
shall the Market-Maker be required to contribute any amount in excess of its
commission from the market-making transactions at issue. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(g) The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(h) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers, the Market-Maker or any Holder, their respective
affiliates or any Person controlling any Initial Purchaser, the Market-Maker or
any Holder, or by or on behalf of the Company or the Guarantors, their
respective affiliates or the officers or directors of or any Person controlling
the Company or the Guarantors, (iii) acceptance of any of the Exchange
Securities, or (iv) any sale of Registrable Securities pursuant to a Shelf
Registration Statement or a Market-Making Registration Statement.
7. GENERAL.
(a) NO INCONSISTENT AGREEMENTS. The Company and the Guarantors
represent, warrant and agree that (i) the rights granted to the Holders or the
Market-Maker hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of any other outstanding securities
issued or guaranteed by the Company or any Guarantor under any other
<Page>
23
agreement and (ii) neither the Company nor any Guarantor has entered into, or on
or after the date of this Agreement will enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Securities or
the Market-Maker in this Agreement or otherwise conflicts with the provisions
hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Guarantors have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or consent and, with respect to the provisions of Section 5,
the written consent of the Market-Maker; PROVIDED that no amendment,
modification, supplement, waiver or consent to any departure from the provisions
of Section 6 hereof shall be effective as against any Holder of Registrable
Securities or the Market-Maker unless consented to in writing by such Holder or
the Market-Maker, as applicable. Any amendments, modifications, supplements,
waivers or consents pursuant to this Section 7(b) shall be by a writing executed
by each of the parties hereto.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder or the Market-Maker, at the most current address
given by such Holder to the Company by means of a notice given in accordance
with the provisions of this Section 7(c), which address initially is, with
respect to the Initial Purchasers and the Market-Maker, the address of the
Initial Purchasers (including the Market-Maker) set forth in the Purchase
Agreement; (ii) if to the Company and the Guarantors, initially at the Company's
address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 7(c); and (iii) to such other persons at their respective addresses as
provided in the Purchase Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section 7(c). All
such notices and communications shall be deemed to have been duly given (A) at
the time delivered by hand, if personally delivered; (B) five Business Days
after being deposited in the mail, postage prepaid, if mailed; (C) when answered
back, if telexed; (D) when receipt is acknowledged, if telecopied; and (E) on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery. Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee, at
the address specified in the Indenture.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; PROVIDED that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof.
<Page>
24
The Initial Purchasers (in their capacity as Initial Purchasers) shall have no
liability or obligation to the Company or the Guarantors with respect to any
failure by a Holder (other than by such Initial Purchasers) to comply with, or
any breach by any Holder (other than by such Initial Purchasers) of, any of the
obligations of such Holder under this Agreement.
(e) PURCHASES AND SALES OF SECURITIES. The Company and the Guarantors
shall not, and shall use their reasonable best efforts to cause their affiliates
(as defined in Rule 405 under the Securities Act) not to, purchase and then
resell or otherwise transfer any Registrable Securities, unless such Registrable
Securities are resold or transferred in a transaction registered under the
Securities Act or pursuant to Rule 144 under the Securities Act, if available.
(f) THIRD PARTY BENEFICIARIES. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts (which may each
be delivered in original form or by facsimile or email), each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(i) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(j) MISCELLANEOUS. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
oral statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Company, the Guarantors and the Initial
Purchasers shall endeavor in good faith negotiations to replace the invalid,
void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable
provisions.
<Page>
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
MEDQUEST, INC.
By: /s/ J. KENNETH LUKE
----------------------------------
J. Kenneth Luke
President
MQ ASSOCIATES, INC.
By: /s/ J. KENNETH LUKE
----------------------------------
J. Kenneth Luke
President
<Page>
IMAGING SERVICES OF ALABAMA, INC. KENOSHA DIAGNOSTIC IMAGING, INC.
ANDERSON DIAGNOSTIC IMAGING, INC. LEXINGTON OPEN MRI, INC.
ASHEVILLE OPEN MRI, INC. MECKLENBURG OPEN MRI, INC.
BIOIMAGING AT CHARLOTTE, INC. MEDQUEST ASSOCIATES, INC.
BIOIMAGING AT HARDING, INC. MISSOURI IMAGING, INC.
BIOIMAGING OF COOL SPRINGS, INC. MOBILE OPEN MRI, INC.
CABARRUS DIAGNOSTIC IMAGING, INC. OCCUPATIONAL SOLUTIONS, INC.
CAPE FEAR DIAGNOSTIC IMAGING, INC. PALMETTO IMAGING, INC.
CAROLINA IMAGING, INC. OF PHOENIX DIAGNOSTIC IMAGING, INC.
FAYETTEVILLE
CHAPEL HILL DIAGNOSTIC IMAGING, INC. PIEDMONT IMAGING, INC. (FORSYTH)
CHATTANOOGA DIAGNOSTIC IMAGING, INC. PIEDMONT IMAGING, INC. (SPARTANBURG)
DOTHAN DIAGNOSTIC IMAGING, INC. OPEN MRI & IMAGING OF RICHMOND, INC.
FLORIDA DIAGNOSTIC IMAGING CENTER, SOUTH CAROLINA DIAGNOSTIC IMAGING,
INC. INC.
OPEN MRI OF GEORGIA, INC. SUN VIEW HOLDINGS, INC.
OPEN MRI & IMAGING OF GEORGIA, INC. TEXAS IMAGING SERVICES OF EL PASO, INC.
GROVE DIAGNOSTIC IMAGING CENTER, TRIAD IMAGING, INC.
INC.
KANSAS DIAGNOSTIC IMAGING, INC. TYSON'S CORNER DIAGNOSTIC IMAGING,
INC.
NORTHEAST COLUMBIA DIAGNOSTIC VIRGINIA DIAGNOSTIC IMAGING, INC.
IMAGING, INC.
OPEN MRI OF THE CAROLINAS, INC.
On behalf of each of the entities On behalf of each of the entities
listed above: listed above:
By: /s/ J. KENNETH LUKE By: /s/ J. KENNETH LUKE
- -------------------------------- --------------------------------
J. Kenneth Luke J. Kenneth Luke
President President
<Page>
MONTGOMERY OPEN MRI, LLC
NORWOOD DIAGNOSTIC IMAGING, LLC
On behalf of each of the entities
listed above:
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
Manager
By: /s/ GENE VENESKY
-------------------------
Gene Venesky
Manager
COASTAL IMAGING, LLC
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
Manager
By: /s/ GENE VENESKY
-------------------------
Gene Venesky
Manager
<Page>
DURHAM DIAGNOSTIC IMAGING, LLC
JACKSONVILLE DIAGNOSTIC IMAGING, LLC
On behalf of each of the entities
listed above:
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
Manager
By: /s/ GENE VENESKY
-------------------------
Gene Venesky
Manager
CAPE IMAGING, L.L.C.
BRIDGETON MRI AND IMAGING CENTER, LLC
KIRKWOOD MRI AND IMAGING CENTER, LLC
ST. PETERS MRI & IMAGING CENTER, LLC
On behalf of each of the entities
listed above:
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
Manager
By: /s/ GENE VENESKY
-------------------------
Gene Venesky
Manager
Missouri Imaging, Inc., as sole member
of each of the entities listed above
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
President
<Page>
OPEN MRI & IMAGING OF RICHMOND, LLC
RICHMOND WEST END DIAGNOSTIC IMAGING,
LLC
On behalf of each of the entities
listed above:
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
Manager
By: /s/ GENE VENESKY
-------------------------
Gene Venesky
Manager
Virginia Diagnostic Imaging, Inc., as
sole member of each of the entities
listed above
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
President
<Page>
OPEN MRI & IMAGING OF ALBANY, LLC OPEN MRI & IMAGING OF NORTH FULTON,
LLC
OPEN MRI & IMAGING OF ATHENS, LLC OPEN MRI & IMAGING OF N.E. GEORGIA,
LLC
ATHENS MRI, LLC OPEN MRI AND IMAGING OF SNELLVILLE,
LLC
OPEN MRI OF ATLANTA, LLC WEST PACES DIAGNOSTIC IMAGING, LLC
BUCKHEAD DIAGNOSTIC IMAGING, LLC WOODSTOCK DIAGNOSTIC IMAGING, LLC
OPEN MRI OF CENTRAL GEORGIA, LLC DIAGNOSTIC IMAGING OF HIRAM, LLC
IMAGING CENTER OF CENTRAL GEORGIA, DIAGNOSTIC IMAGING OF MARIETTA, LLC
LLC
OPEN MRI & IMAGING OF CONYERS, LLC DIAGNOSTIC IMAGING OF GEORGIA, LLC
CUMMING DIAGNOSTIC IMAGING, LLC OPEN MRI & IMAGING OF DOUGLASVILLE,
LLC
OPEN MRI & IMAGING OF DEKALB, LLC HAPEVILLE DIAGNOSTIC IMAGING, LLC
DULUTH DIAGNOSTIC IMAGING, LLC OPEN MRI & IMAGING OF MACON, LLC
DULUTH CT CENTER, LLC MIDTOWN DIAGNOSTIC IMAGING, LLC
DIAGNOSTIC IMAGING OF ATLANTA, LLC
On behalf of each of the entities On behalf of each of the entities
listed above: listed above:
By: /s/ J. KENNETH LUKE By: /s/ J. KENNETH LUKE
- ------------------------------ ------------------------------
J. Kenneth Luke J. Kenneth Luke
Manager Manager
By: /s/ GENE VENESKY By: /s/ GENE VENESKY
- ------------------------------ ------------------------------
Gene Venesky Gene Venesky
Manager Manager
<Page>
CAROLINA MEDICAL IMAGING, LLC
OPEN MRI OF SIMPSONVILLE, LLC
SIMPSONVILLE OPEN MRI, LLC
On behalf of each of the entities
listed above:
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
Manager
By: /s/ GENE VENESKY
-------------------------
Gene Venesky
Manager
Palmetto Imaging, Inc., as sole member
of each of the entities listed above
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
President
OPEN MRI & IMAGING OF FLORENCE, LLC
OPEN MRI OF MYRTLE BEACH, LLC
Palmetto Imaging, Inc., as sole member
of each of the entities listed above
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
President
<Page>
EAST COOPER DIAGNOSTIC IMAGING, LLC
FARMFIELD DIAGNOSTIC IMAGING, LLC
FORT MILL DIAGNOSTIC IMAGING, LLC
TRICOM DIAGNOSTIC IMAGING, LLC
WEST ASHLEY DIAGNOSTIC IMAGING, LLC
On behalf of each of the entities
listed above:
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
Manager
By: /s/ GENE VENESKY
-------------------------
Gene Venesky
Manager
South Carolina Diagnostic Imaging,
Inc., as sole member of each of the
entities listed above
By: /s/ J. KENNETH LUKE
-------------------------
J. Kenneth Luke
President
<Page>
Confirmed and accepted as of the date first above written:
J.P. MORGAN SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
By: /s/ ANDREW BRODIE
----------------------------
Authorized Signatory
<Page>
SCHEDULE 1
LIST OF GUARANTORS
<Table>
<Caption>
NAME JURISDICTION OF INCORPORATION
- -------------------------------------------- -----------------------------------------
MQ Associates, Inc. a Delaware corporation
Dothan Diagnostic Imaging, Inc. an Alabama corporation
Imaging Services of Alabama, Inc. an Alabama corporation
Mobile Open MRI, Inc. an Alabama corporation
Montgomery Open MRI, LLC an Alabama limited liability company
Norwood Diagnostic Imaging, LLC an Alabama limited liability company
Phoenix Diagnostic Imaging, Inc. an Arizona corporation
Grove Diagnostic Imaging Center, Inc. a California corporation
Florida Diagnostic Imaging Center, Inc. a Florida corporation
f/k/a Open MRI of Pensacola, Inc.
Occupational Solutions, Inc. a Georgia corporation
Open MRI of Georgia, Inc. a Georgia corporation
Open MRI & Imaging of Georgia, Inc. a Georgia corporation
Buckhead Diagnostic Imaging, LLC a Georgia limited liability company
Cumming Diagnostic Imaging, LLC a Georgia limited liability company
Diagnostic Imaging of Atlanta, LLC a Georgia limited liability company
Duluth Diagnostic Imaging, LLC a Georgia limited liability company
Hapeville Diagnostic Imaging, LLC a Georgia limited liability company
Open MRI & Imaging of Macon, LLC f/k/a a Georgia limited liability company
Open MRI of Macon, LLC
Midtown Diagnostic Imaging, LLC a Georgia limited liability company
Open MRI & Imaging of Albany, LLC a Georgia limited liability company
Open MRI & Imaging of Conyers, LLC a Georgia limited liability company
Open MRI & Imaging of Douglasville, LLC a Georgia limited liability company
</Table>
<Page>
<Table>
<Caption>
NAME JURISDICTION OF INCORPORATION
- -------------------------------------------- -----------------------------------------
Open MRI of Central Georgia, LLC a Georgia limited liability company
Open MRI & Imaging of DeKalb, LLC a Georgia limited liability company
Open MRI & Imaging of North Fulton, LLC a Georgia limited liability company
Open MRI of Atlanta, LLC a Georgia limited liability company
Open MRI and Imaging of Snellville, LLC a Georgia limited liability company
West Paces Diagnostic Imaging, LLC a Georgia limited liability company
Woodstock Diagnostic Imaging, LLC a Georgia limited liability company
Open MRI & Imaging of Athens, LLC a Georgia limited liability company
Athens MRI, LLC a Georgia limited liability company
Imaging Center of Central Georgia, LLC f/k/a a Georgia limited liability company
Central Georgia Diagnostic Imaging, LLC
Duluth CT Center, LLC a Georgia limited liability company
Diagnostic Imaging of Hiram, LLC a Georgia limited liability company
Diagnostic Imaging of Marietta, LLC a Georgia limited liability company
Diagnostic Imaging of Georgia, LLC a Georgia limited liability company
Open MRI & Imaging of N.E. Georgia, LLC a Georgia limited liability company
Kansas Diagnostic Imaging, Inc. a Kansas corporation
Missouri Imaging, Inc. a Missouri corporation
St. Peters MRI & Imaging Center, LLC a Missouri limited liability company
Bridgeton Open MRI and Imaging Center, LLC a Missouri limited liability company
Cape Imaging, L.L.C. a Missouri limited liability company
Kirkwood Open MRI and Imaging Center, LLC a Missouri limited liability company
Asheville Open MRI, Inc. a North Carolina corporation
Cabarrus Diagnostic Imaging, Inc. a North Carolina corporation
Cape Fear Diagnostic Imaging, Inc. a North Carolina corporation
Carolina Imaging, Inc. of Fayetteville a North Carolina corporation
</Table>
<Page>
<Table>
<Caption>
NAME JURISDICTION OF INCORPORATION
- -------------------------------------------- -----------------------------------------
Chapel Hill Diagnostic Imaging, Inc. a North Carolina corporation
Piedmont Imaging, Inc. (Forsyth) a North Carolina corporation
f/k/a Forsyth Imaging, Inc.
Triad Imaging, Inc. a North Carolina corporation
Mecklenburg Open MRI, Inc. a North Carolina corporation
Jacksonville Diagnostic Imaging, LLC a North Carolina limited liability company
Coastal Imaging, LLC a North Carolina limited liability company
Durham Diagnostic Imaging, LLC a North Carolina limited liability company
Anderson Diagnostic Imaging, Inc. a South Carolina corporation
East Cooper Diagnostic Imaging, LLC a South Carolina corporation
Farmfield Diagnostic Imaging, LLC a South Carolina corporation
Lexington Open MRI, Inc. a South Carolina corporation
Palmetto Imaging, Inc. f/k/a MRI of Columbia, Inc. a South Carolina corporation
Piedmont Imaging, Inc. (Spartanburg) f/k/a/ a South Carolina corporation
Spartanburg Diagnostic Imaging, Inc.
South Carolina Diagnostic Imaging, Inc. a South Carolina corporation
Sun View Holdings, Inc. a South Carolina corporation, qualified to do
business in New Mexico
Northeast Columbia Diagnostic Imaging, Inc. a South Carolina corporation
Open MRI of the Carolinas, Inc. a South Carolina corporation
MedQuest Associates, Inc. a South Carolina corporation
Simpsonville Open MRI, LLC a South Carolina limited liability company
Tricom Diagnostic Imaging, LLC a South Carolina limited liability company
West Ashley Diagnostic Imaging, LLC a South Carolina limited liability company
Carolina Medical Imaging, LLC a South Carolina limited liability company
Open MRI & Imaging of Florence, LLC a South Carolina limited liability company
Open MRI of Myrtle Beach, LLC a South Carolina limited liability company
</Table>
<Page>
<Table>
<Caption>
NAME JURISDICTION OF INCORPORATION
- ------------------------------------------------------ -------------------------------------------
Open MRI of Simpsonville, LLC a South Carolina limited liability company
Fort Mill Diagnostic Imaging, LLC a South Carolina limited liability company
BioImaging at Charlotte, Inc. a Tennessee corporation
f/k/a Nashville Diagnostic Imaging
BioImaging of Cool Springs, Inc. a Tennessee corporation
BioImaging at Harding, Inc. a Tennessee corporation
f/k/a BioImaging, Inc.
Chattanooga Diagnostic Imaging, Inc. a Tennessee corporation
Texas Imaging Services of El Paso, Inc. a Texas corporation
Tyson's Corner Diagnostic Imaging, Inc. a Virginia corporation
Virginia Diagnostic Imaging, Inc. a Virginia corporation
Open MRI & Imaging of Richmond, LLC a Virginia limited liability company
Richmond West End Diagnostic Imaging, LLC a Virginia limited liability company
Open MRI & Imaging of Richmond, Inc. a Virginia corporation
Kenosha Diagnostic Imaging, Inc. a Wisconsin corporation
</Table>