EXHIBIT 4.1
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EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
among
NDCHEALTH CORPORATION,
the COMPANY
NDC HEALTH INFORMATION SERVICES (ARIZONA) INC.,
THE COMPUTER PLACE, INC.,
NDCHEALTH INTELLECTUAL PROPERTY CORP.,
HISIP CORP.,
NDCIP, INC.,
NDCHEALTH LICENSING, INC.,
TECHRX INCORPORATED,
NDC OF CANADA, INC.
NDC ACQUISITION CORP.,
as SUBSIDIARY GUARANTORS
and
CREDIT SUISSE FIRST BOSTON CORPORATION,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
GOLDMAN, SACHS & CO. and
U.S. BANCORP PIPER JAFFRAY
INC., as INITIAL PURCHASERS
Dated: November 26, 2002
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
November 26, 2002 is made and entered into among NDCHEALTH CORPORATION, a
Delaware corporation (the "Company"), NDC HEALTH INFORMATION SERVICES (ARIZONA)
INC., a Delaware corporation, THE COMPUTER PLACE, INC., an Arizona corporation,
NDCHEALTH INTELLECTUAL PROPERTY CORP., a Delaware corporation, HISIP Corp., a
Delaware corporation, NDCIP, Inc., a Delaware corporation, NDCHEALTH LICENSING,
INC., a Delaware corporation, TECHRX INCORPORATED, a Pennsylvania corporation,
NDC OF CANADA, INC., a Delaware corporation, and NDC ACQUISITION CORP., a
Delaware corporation, as guarantors (collectively, the "Subsidiary Guarantors"
and, together with the Company, the "Issuers"), and CREDIT SUISSE FIRST BOSTON
CORPORATION ("CSFBC"), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
GOLDMAN, SACHS & CO. AND U.S. BANCORP PIPER JAFFRAY INC., as initial purchasers
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
November 18, 2002 among the Issuers and the Initial Purchasers (the "Purchase
Agreement"), which provides for the issue and sale by the Company to the Initial
Purchasers of $200,000,000 aggregate principal amount of the Company's 10 1/2%
Senior Subordinated Notes due 2012 (the "Notes"). The obligations of the Company
under the Indenture (as defined herein) and the Notes will be fully and
unconditionally guaranteed on an unsecured senior subordinated basis by the
Subsidiary Guarantors pursuant to the terms of the Indenture (the "Guarantees").
The Notes and the Guarantees are collectively referred to herein as the
"Securities." In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuers have agreed to provide to the Initial Purchasers
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
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
"Agreement" shall have the meaning set forth in the preamble.
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"Company" shall have the meaning set forth in the preamble of
this Agreement and also includes the Company's successors.
"CSFBC" shall have the meaning set forth in the preamble of
this Agreement.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company; provided, however, that such
depositary must have an address in the Borough of Manhattan in the City
of New York.
"Exchange Notes" shall mean 10 1/2% Senior Subordinated Notes
due 2012 of the Company issued under the Indenture, which are
unconditionally guaranteed on an unsecured senior subordinated basis by
the Subsidiary Guarantors pursuant to the terms of the Indenture,
containing terms identical to the Securities (except that (a) interest
thereon shall accrue from the last date on which interest was paid on
the Securities or, if no such interest has been paid, from November 26,
2002 (b) the transfer restrictions thereon shall be eliminated and (c)
certain provisions relating to an increase in the stated rate of
interest thereon shall be eliminated), to be offered to Holders of
Registrable Notes in exchange for Securities pursuant to the Exchange
Offer.
"Exchange Offer" shall mean the exchange offer by the Issuers
of Exchange Notes for Registrable Notes pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 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 supplements to such
registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"Guarantees" shall have the meaning set forth in the preamble
of this Agreement.
"Holders" shall mean the Initial Purchasers, for so long as
they own any Registrable Notes, and each of their successors, assigns
and direct and indirect transferees who become registered owners of
Registrable Notes under the Indenture.
"Indenture" shall mean the Indenture relating to the
Securities dated as of November 26, 2002 among the Issuers and the
Trustee, as the same may be amended from time to time in accordance
with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
"Issue Date" means November 26, 2002.
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"Issuers" shall have the meaning set forth in the preamble of
this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Notes outstanding; provided
that whenever the consent or approval of Holders of a specified
percentage of Registrable Notes is required hereunder, Registrable
Notes held by any Issuer or any of their affiliates (as such term is
defined in Rule 405 under the 1933 Act) (other than the Initial
Purchasers or subsequent holders of Registrable Notes if such
subsequent holders are deemed to be such affiliates solely by reason of
their holding of such Registrable Notes) shall be disregarded in
determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"NASD" shall mean National Association of Securities Dealers,
Inc.
"Notes" shall have the meaning set forth in the preamble of
this Agreement.
"Participating Broker-Dealer" shall have the meaning set forth
in Section 3(f).
"Person" shall mean an individual, partnership, limited
liability company, corporation, trust or unincorporated organization,
or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and 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 Notes covered by a
Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective amendments, and
in each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
"Registrable Notes" shall mean the Securities; provided,
however, that any Security shall cease to be a Registrable Note when
(i) a Registration Statement with respect to such Security shall have
been declared effective under the 1933 Act and such Security shall have
been disposed of pursuant to such Registration Statement, (ii) such
Security shall have been sold to the public pursuant to Rule 144(k) (or
any similar provision then in force, but not Rule 144A) under the 1933
Act, (iii) such Security shall have ceased to be outstanding or (iv)
such Security have been exchanged for Exchange Notes upon consummation
of the Exchange Offer.
"Registration Default" shall have the meaning set forth in
Section 2(d) of this Agreement.
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"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Issuers with this
Agreement, including without limitation: (i) all SEC, stock exchange or
NASD registration and filing fees, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws
and compliance with the rules of the NASD (including reasonable fees
and disbursements of one counsel for any underwriters and Holders in
connection with state or blue sky qualification of any of the Exchange
Notes or Registrable Notes), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments
or supplements thereto, any underwriting agreements, securities sales
agreements, certificates representing the Exchange Notes and other
documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and expenses
incurred in connection with the listing, if any, of any of the
Registrable Notes on any securities exchange or exchanges, (vi) the
fees and disbursements of counsel for the Company and its subsidiaries
and, in the case of a Shelf Registration Statement, the reasonable fees
and disbursements (including the expenses of preparing and distributing
any underwriting or securities sales agreements) of one counsel for the
Holders (which counsel shall be selected in writing by the Majority
Holders), (vii) the fees and expenses of the independent public
accountants of the Company and its subsidiaries, and any other entities
whose financial statements are required to be included in a
Registration Statement, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, (viii) the fees and expenses of the Trustee, and any escrow
agent or custodian, (ix) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (x)
the fees and expenses of a "qualified independent underwriter" as
defined by Conduct Rule 2720 of the NASD, if required by the NASD
rules, in connection with the offering of the Registrable Notes; and
(xi) in the case of any underwritten offering, any fees and
disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the reasonable fees and expenses
of any experts retained by any Issuer in connection with any
Registration Statement, but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement
of the Issuers which covers any of the Exchange Notes or Registrable
Notes pursuant to the provisions of this Agreement, and all amendments
and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble
of this Agreement.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
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"Shelf Registration Statement" shall mean a shelf registration
statement of the Issuers pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the then Registrable Notes on an
appropriate form under Rule 415 under the 1933 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 all material incorporated by reference therein.
"Subsidiary Guarantors" shall have the meaning set forth in
the preamble of this Agreement.
"TIA" shall have the meaning set forth in Section 3(m) of this
Agreement.
"Trustee" shall mean the trustee with respect to the Notes
under the Indenture.
2. Registration Under the 1933 Act. (a) Exchange Offer
Registration. The Issuers shall, at their own expense, unless any
changes in the law or the applicable interpretations of the staff of
the SEC do not permit the Issuers to effect the Exchange Offer, (i)
file within 120 days after the Issue Date an Exchange Offer
Registration Statement covering the offer by the Issuers to the Holders
to exchange all of the Registrable Notes for Exchange Notes, (ii) use
their reasonable best efforts to cause such Exchange Offer Registration
Statement to be declared effective by the SEC within 250 days after the
Issue Date, (iii) to cause such Registration Statement to remain
effective until the closing of the Exchange Offer and (iv) to use their
reasonable best efforts to consummate the Exchange Offer within 280
days following the Issue Date. Upon the effectiveness of the Exchange
Offer Registration Statement, the Issuers shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable
each Holder (other than Participating Broker-Dealers) eligible and
electing to exchange Registrable Notes for Exchange Notes (assuming
that such Holder (i) is not an affiliate of any Issuer within the
meaning of Rule 405 under the 1933 Act, (ii) acquires the Exchange
Notes in the ordinary course of such Holder's business and (iii) has no
arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing the Exchange Notes) to
trade such Exchange Notes from and after their receipt without any
limitations or restrictions under the 1933 Act and without material
restrictions under the securities laws of a substantial proportion of
the several states of the United States.
In connection with the Exchange Offer, the Issuers shall:
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(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) use the services of the Depositary for the Exchange
Offer with respect to Securities evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable Notes at
any time prior to 5:00 P.M. New York City time, on the last business
day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Issuers shall:
(i) accept for exchange Registrable Notes duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with
the terms of the Exchange Offer Registration Statement and the letter
of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes so accepted for exchange by the
Issuers; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Notes to each Holder of Registrable Notes equal in principal
amount to the principal amount of the Registrable Notes of such Holder
so accepted for exchange.
Interest will accrue on each Exchange Note exchanged for a Registrable
Note, from the last date on which interest was paid on the Securities
surrendered in exchange therefor. If no interest has been paid on the
Securities, such interest will accrue from November 26, 2002. The Exchange Offer
shall not be subject to any conditions, other than (i) that the Exchange Offer,
or the making of any exchange by a Holder, does not violate applicable law or
any applicable interpretation of the staff of the SEC, and (ii) the due
tendering of Registrable Notes in accordance with the Exchange Offer. Each
Holder of Registrable Notes (other than Participating Broker-Dealers) who wishes
to exchange such Registrable Notes for Exchange Notes in the Exchange Offer
shall represent that (i) it is not an affiliate (as defined in Rule 405 under
the 1933 Act) of any Issuer or, if it is such an affiliate, it will comply with
the registration and prospectus delivery requirements of the 1933 Act to the
extent applicable, (ii) any Exchange Notes to be received by it will be acquired
in the ordinary course of business, (iii) at the time of the commencement of the
Exchange Offer it has no arrangement with any Person to participate in the
distribution (within the meaning of the 1933 Act) of the Exchange Notes and (iv)
it is not acting on behalf of any Person who could not make the representations
in clauses (i) through (iii) and shall have made such other representations as
may be reasonably necessary under applicable SEC rules, regulations or
interpretations to render the use of Form S-4 or another appropriate form under
the 1933 Act available. If requested by the Initial Purchasers, the Company
shall inform the Initial Purchasers of the names and addresses of the Holders to
whom the Exchange Offer is made, and the Initial Purchasers shall have the right
to contact such Holders and otherwise facilitate the tender of Registrable Notes
in the Exchange Offer.
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(b) Shelf Registration. In the event that (i) any changes in law or the
applicable interpretations of the staff of the SEC do not permit the Issuers to
effect the Exchange Offer as contemplated by Section 2(a) hereof; (ii) if for
any other reason the Exchange Offer is not consummated within 280 days following
the Issue Date; (iii) if any Holder (other than an Initial Purchaser) is not
eligible to participate in the Exchange Offer and notifies the Company in
writing within 20 business days following consummation of the Exchange Offer or
(iv) upon the written request of any Initial Purchaser (with respect to any
Registrable Notes which it acquired from any Issuer) within 20 business days
following the consummation of the Exchange Offer if any such Initial Purchaser
shall hold Registrable Notes which it acquired directly from the Company and if
such Initial Purchaser is not permitted, in the opinion of counsel to such
Initial Purchaser, pursuant to applicable law or applicable interpretation of
the staff of the SEC to participate in the Exchange Offer, the Issuers shall, at
their own cost:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Notes by the Holders from time to time in accordance with
the methods of distribution set forth in such Shelf Registration
Statement, and use their reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC within 250
days after the Issue Date (or as promptly as practicable in the event
of a request by an Initial Purchaser pursuant to clause (iv) above). No
Holder of Registrable Notes shall be entitled to include any of its
Registrable Notes in any Shelf Registration pursuant to this Agreement
unless such Holder furnishes to the Company and the Trustee in writing,
within 20 days after receipt of a written request therefor, such
information as the Company and the Trustee may reasonably request for
inclusion in any Shelf Registration Statement or Prospectus included
therein with regard to information relating to Holders that would be
required by the SEC to be included in such Shelf Registration Statement
or Prospectus included therein. In the event that the Issuers are
required to file a Shelf Registration Statement upon the request of any
Holder (other than an Initial Purchaser) not eligible to participate in
the Exchange Offer pursuant to clause (iii) above or upon the request
of any Initial Purchaser pursuant to clause (iv) above, the Issuers
shall file and use their reasonable best efforts to have declared
effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Notes and a
Shelf Registration Statement (which may be a Registration Statement
combined with the Exchange Offer Registration Statement) with respect
to offers and sales of Registrable Notes held by such Holder or such
Initial Purchaser after completion of the Exchange Offer;
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(B) use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable for a period of two years
from the date the Shelf Registration Statement is declared effective by
the SEC or such shorter period which will terminate when all of the
Registrable Notes covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement; and
(C) notwithstanding any other provisions hereof, use their
reasonable best efforts to ensure that (x) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part
thereof and any supplement thereto comply in all material respects with
the 1933 Act and the rules and regulations thereunder, (y) any Shelf
Registration Statement and any amendment thereto do not, upon
effectiveness, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (z) any Prospectus
forming part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or supplemented from time to time), do not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in light of
the circumstances under which they were made, not misleading.
The Issuers further agree, if necessary, (i) to supplement or
amend the Shelf Registration Statement if requested by the Majority Holders of
Notes that are Registrable Notes with respect to information relating to the
Holders and otherwise as required by Section 3(b) below, (ii) to use all
reasonable efforts to cause any such amendment to become effective and such
Shelf Registration to become usable as soon as thereafter practicable and (iii)
to furnish to the Holders of Registrable Notes copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) Expenses. The Issuers shall pay all Registration Expenses in
connection with the registration pursuant to Sections 2(a) and 2(b) and, in the
case of an Exchange Offer Registration Statement, will reimburse the Initial
Purchasers, for the reasonable fees and disbursements of one firm or counsel in
connection therewith. Each Holder shall pay all expenses of its counsel other
than as set forth in the preceding sentence, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Notes pursuant to the Shelf Registration Statement.
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(d) Effective Registration Statement. (i) The Issuers will be deemed
not to have used their reasonable best efforts to cause a Registration Statement
to become, or to remain, effective during the requisite periods set forth herein
if they voluntarily take any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable Notes
covered thereby not being able to exchange or offer and sell such Registrable
Notes during that period unless (A) such action is required by applicable law or
(B) such action is taken by the Issuers in good faith and for valid business
reasons (not including avoidance of the Issuers' obligations hereunder),
including a material corporate transaction, so long as the Company promptly
comply with the requirements of Section 3(k) hereof, if applicable.
(ii) 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; provided, however, that if, after it has been declared effective, the
offering of Registrable Notes pursuant to a Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Registration Statement will be
deemed not to have been effective during the period of such interference, until
the offering of Registrable Notes pursuant to such Registration Statement may
legally resume.
(e) Increase in Interest Rate. In the event that (i) the Exchange Offer
Registration Statement is not filed with the SEC on or prior to the 120th
calendar day after the Issue Date, (ii) the Exchange Offer Registration
Statement is not declared effective on or prior to the 250th calendar day after
the Issue Date, (iii) the Exchange Offer is not consummated on or prior to the
280th calendar day after the Issue Date or, as the case may be, a Shelf
Registration Statement with respect to the Registrable Notes is not declared
effective on or prior to the 280th day after the Issue Date or (iv) the Exchange
Offer Registration Statement or the Shelf Registration Statement is declared
effective but thereafter ceases to be effective or usable within the applicable
period provided in this Agreement (other than such time as all Notes have been
disposed of thereunder) and is not declared effective again within 30 days (each
such event referred to in clauses (i) through (iv) above, a "Registration
Default"), the Issuers shall be required to pay additional interest in cash on
each Interest Payment Date (as defined in the Indenture) in an amount equal to
one-quarter of one percent (0.25%) per annum of the principal amount of the
Securities, with respect to the first 90-day period following such Registration
Default. The amount of such additional interest will increase by an additional
one-quarter of one percent (0.25%) per annum for each subsequent 90-day period
until such Registration Default has been cured, up to a maximum of one percent
(1%) per annum. Upon (w) the filing of the Exchange Offer Registration Statement
after the 120-day period described in clause (i) above, (x) the effectiveness of
the Exchange Offer Registration Statement after the 250 day period described in
clause (ii) above or (y) the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement after the 280-day period, as the
case may be, described in clause (iii) above, or (z) the cure of any period, as
the case may be, described in clause (iv) above, such additional interest shall
cease to accrue on the Securities from the date of such filing, effectiveness,
consummation or cure, as the case may be, if the Issuers are otherwise in
compliance with this paragraph; provided, however, that if, after any such
additional interest ceases to accrue, a different event specified in clause (i),
(ii), (iii) or (iv) above occurs, such additional interest shall begin to accrue
again pursuant to the foregoing provisions.
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(f) Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Issuers acknowledge that any failure
by the Issuers 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 Issuers' obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Issuers with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Issuers shall:
(a) prepare and file with the SEC a Registration Statement,
within the time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Issuers,
(ii) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Notes by the selling Holders thereof and (iii)
shall comply as to form in all material respects with the requirements
of the applicable form required by the SEC and include or incorporate
by reference all financial 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 in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act; and
comply with the provisions of the 1933 Act with respect to the
disposition of all Securities covered by each Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the selling Holders thereof;
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(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Notes, at least five days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Notes is
being filed and advising such Holders that the distribution of
Registrable Notes will be made in accordance with the methods of
distribution set forth in such Shelf Registration Statement; and (ii)
furnish to each Holder of Registrable Notes, to counsel for the Initial
Purchasers, to counsel for the Holders and to each underwriter of an
underwritten offering of Registrable Notes, if any, without charge, as
many copies of each Prospectus, including each preliminary Prospectus,
and any amendment or supplement thereto and such other documents as
such Holder or underwriter may reasonably request, including financial
statements and schedules and, if the Holder so requests, all exhibits
(including those incorporated by reference) in order to facilitate the
public sale or other disposition of the Registrable Notes; and (iii)
subject to the last paragraph of this Section 3, hereby consent to the
use of the Prospectus, including each preliminary Prospectus, or any
amendment or supplement thereto by each of the selling Holders of
Registrable Notes in connection with the offering and sale of the
Registrable Notes covered by the Prospectus or any amendment or
supplement thereto;
(d) use their reasonable best efforts to register or qualify
the Registrable Notes under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Notes
covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Notes shall reasonably request 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 NASD, keep each such registration or
qualification effective during the period such Registration Statement
is required to be effective and do any and all other acts and things
which may be reasonably necessary to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Notes
owned by such Holder; provided, however, that none of the Issuers shall
not be required to (i) qualify as foreign corporations or as dealers in
securities in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(d) or (ii) take any action which
would subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder
of Registrable Notes and counsel for such Holders promptly and, if
requested by such Holder or counsel, confirm in writing promptly (i)
when a Shelf Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
post-effective amendments and supplements to a Shelf Registration
Statement and Prospectus or for additional information after the Shelf
Registration Statement has become effective, (iii) 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
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Notes
covered thereby, the representations and warranties of the Issuers
contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to such offering cease to be
true and correct in all material respects, (v) of the receipt by any
Issuer of any notification with respect to the suspension of the
qualification of the Registrable Notes for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, (vi)
of the happening of any event or the discovery of any facts during the
period a Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any
changes in such Registration Statement or Prospectus in order to make
the statements in such Registration Statement not misleading or in the
case of such Prospectus, the statements, in the light of the
circumstances under which they were made, not misleading and (vii) of
any determination by Issuers that a post-effective amendment to a
Registration Statement would be appropriate;
11
(f) (A) in the case of the Exchange Offer, (i) include in
the Exchange Offer Registration Statement a "Plan of Distribution"
section covering the use of the Prospectus included in the Exchange
Offer Registration Statement by broker-dealers who have exchanged their
Registrable Notes for Exchange Notes for the resale of such Exchange
Notes, (ii) furnish to each broker-dealer who desires to participate in
the Exchange Offer, without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as
such broker-dealer may reasonably request, (iii) include in the
Exchange Offer Registration Statement a statement that any
broker-dealer which holds Registrable Notes acquired for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Notes for Registrable Notes pursuant to the Exchange Offer, may be a
statutory underwriter and must deliver a Prospectus meeting the
requirements of the 1933 Act in connection with any resale of such
Exchange Notes, (iv) subject to the last paragraph of this Section 3,
hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement
thereto, by any broker-dealer in connection with the sale or transfer
of the Exchange Notes covered by the Prospectus or any amendment or
supplement thereto, and (v) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
12
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes. If the
undersigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Registrable Notes,
it represents that the Registrable Notes to be exchanged for
Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and
acknowledges that it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
such Exchange Notes pursuant to the Exchange Offer; however,
by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act.";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (x) and by delivering a
Prospectus in connection with the exchange of Registrable Notes, the
broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the 1933 Act; and
(B) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Issuers shall use their
reasonable best efforts to cause to be delivered at the request of an
entity representing the Participating Broker-Dealers (which entity
shall be one of the Initial Purchasers, unless it elects not to act as
such representative) "cold comfort" letters (with respect to the
Company and its subsidiaries, and any other entities whose financial
statements are included in such Prospectus) with respect to the
Prospectus in the form existing on the last date for which exchanges
are accepted pursuant to the Exchange Offer and with respect to each
subsequent amendment or supplement, if any, effected during the period
specified in clause (C) below; provided that no such comfort letter
shall be required to be addressed to any such Participating
Broker-Dealer unless such Participating Broker-Dealer provides a letter
of representations to the independent certified public accountants of
the Company and its subsidiaries; and
(C) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Issuers shall use their
reasonable best efforts to maintain the effectiveness of the Exchange
Offer Registration Statement for a period of one year following the
closing of the Exchange Offer; provided that the Issuers shall not be
required to take any actions contemplated by clause (D) below after the
time period referred to therein; and
(D) the Issuers shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration Statement
as would otherwise be contemplated by Section 3(b) hereof, or take any
other action as a result of this Section 3(f), for a period exceeding
180 days after the last date for which exchanges are accepted pursuant
to the Exchange Offer (as such period may be extended by the Company)
and Participating Broker-Dealers shall not be authorized by the Issuers
to, and shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3;
13
(g) (A) in the case of an Exchange Offer or Shelf Registration
Statement, furnish counsel for the Initial Purchasers and (B) in the
case of a Shelf Registration, furnish counsel for the Holders of
Registrable Notes copies of any request by the SEC or any state
securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(h) 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;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Notes and each underwriter, if any, without
charge, at least one conformed copy of each Registration Statement and
any post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Notes to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold and not bearing any restrictive legends; and cause such
Registrable Notes to be in such denominations (consistent with the
provisions of the Indenture) in a form eligible for deposit with the
Depository and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least one business day
prior to the closing of any sale of Registrable Notes;
(k) in the case of a Shelf Registration, promptly upon the
occurrence of any event or the discovery of any facts, each as
contemplated by Section 3(e)(vi) hereof, use their reasonable best
efforts to prepare 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 the purchasers of the Registrable
Notes, such Prospectus will not contain at the time of such delivery
any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until the Issuers
have amended or supplemented the Prospectus to correct such
misstatement or omission. At such time as such public disclosure is
otherwise made or the Company determines that such disclosure is not
necessary, in each case to correct any misstatement of a material fact
or to include any omitted material fact, the Company agrees promptly to
notify each Holder of such determination and to furnish each Holder
such numbers of copies of the Prospectus, as amended or supplemented,
as such Holder may reasonably request;
14
(l) obtain CUSIP numbers for all Exchange Notes, or
Registrable Notes, as the case may be, not later than the effective
date of a Registration Statement, and provide the Trustee with printed
certificates for the Exchange Notes or the Registrable Notes, as the
case may be, in a form eligible for deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Notes, or Registrable Notes, as the case
may be, (ii) 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 TIA and (iii) 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;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the
Majority Holders of Registrable Notes) in order to expedite or
facilitate the disposition of such Registrable Notes and in such
connection whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration:
(i) make such representations and warranties to the
Holders of such Registrable Notes and the underwriters, if
any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as
may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and
its subsidiaries and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the
Holders of a majority in principal amount of the Registrable
Notes being sold) addressed to each selling Holder and the
underwriters, if any, covering the matters customarily covered
in opinions requested in sales of securities or underwritten
offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
15
(iii) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of
the Company and its subsidiaries, and any other entities whose
financial statements are required to appear in a Registration
Statement, in each case, addressed to the underwriters, if
any, and will use their reasonable best efforts to have such
letter addressed to the selling Holders of Registrable Notes,
such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters to
underwriters in connection with similar underwritten
offerings, provided that no such comfort letter shall be
required to be addressed to any Holder unless such Holder
provides such letters of representations to such accountants,
as in each case, are in form and substance reasonably
acceptable to such accountants;
(iv) enter into a securities sales agreement with
the Holders and an agent of the Holders providing for, among
other things, the appointment of such agent for the selling
Holders for the purpose of soliciting purchases of Registrable
Notes, which agreement shall be in form, substance and scope
customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 5 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to said Section; and
(vi) deliver such documents and certificates as may
be reasonably requested and as are customarily delivered in
similar offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto)
and (ii) each closing under any underwriting or similar agreement as
and to the extent required thereunder. In the case of any underwritten
offering, the Company shall provide written notice to the Holders of
all Registrable Notes of such underwritten offering at least 30 days
prior to the filing of a prospectus supplement for such underwritten
offering. Such notice shall (x) offer each such Holder the right to
participate in such underwritten offering, (y) specify a date, which
shall be no earlier than 10 calendar days following the date of such
notice, by which such Holder must inform the Company of its intent to
participate in such underwritten offering and (z) include the
instructions such Holder must follow in order to participate in such
underwritten offering;
16
(o) in the case of a Shelf Registration, make available for
inspection at the offices where normally kept, during regular business
hours, by representatives of the Holders of the Registrable Notes and
any underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such
Holders or underwriters, all financial and other records, pertinent
corporate documents and properties of the Issuers reasonably requested
by any such persons, and cause the respective officers, directors,
employees, and any other agents of the Issuers to supply all
information reasonably requested by any such representative,
underwriter, special counsel or accountant in connection with such
Registration Statement; provided, however, that such Persons shall
first agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company as confidential
at the time of delivery of such information shall be kept confidential
by such Persons, unless (i) disclosure of such information is required
by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements
pursuant to Federal securities laws in connection with the filing of
such Shelf Registration Statement or use of any Prospectus), (iii) such
information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard such information by such
Person or (iv) such information becomes available to such Person from a
source other than the Company and such source is not bound by a
confidentiality agreement; and provided, further, that the foregoing
investigation shall be coordinated on behalf of such Holders and any
such confidential information shall be available from such
representative to such Holders so long as any Holder agrees to be bound
by such confidentiality agreement. Each Holder and each underwriter
participating in any disposition pursuant to a Shelf Registration
Statement will be required to further agree that it will, upon learning
that disclosure of such information is sought by a court or
administrative order or regulatory authority, give notice to the
Company and, to the extent practicable, use its reasonable best efforts
to allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of the information deemed confidential.
(p) (i) a reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment
or supplement to a Prospectus, provide copies of such document to
counsel for the Initial Purchasers, and make such changes in any such
document prior to the filing thereof as any of the Initial Purchasers
or their counsel may reasonably request; (ii) in the case of a Shelf
Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Holders of
Registrable Notes, to counsel for the Initial Purchasers, to counsel on
behalf of the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Notes, if any, and make such
changes in any such document prior to the filing thereof as the Holders
of Registrable Notes, the Initial Purchasers on behalf of such Holders,
their counsel and any underwriter may reasonably request; and (iii)
cause the representatives of the Company and its subsidiaries to be
available for discussion of such document as shall be reasonably
requested by the Holders of Registrable Notes, the Initial Purchasers
on behalf of such Holders or any underwriter and shall not at any time
make any filing of any such document of which such Holders, the Initial
Purchasers on behalf of such Holders, their counsel or any underwriter
shall not have previously been advised and furnished a copy or to which
such Holders, the Initial Purchasers on behalf of such Holders, their
counsel or any underwriter shall reasonably object;
17
(q) in the case of a Shelf Registration, use their reasonable
best efforts to cause the Registrable Notes to continue to be rated
with the appropriate rating agencies;
(r) otherwise use their reasonable best efforts to comply with
all applicable rules and regulations of the SEC and make available to
their security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
and
(t) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter and its counsel (including, any "qualified
independent underwriter" that is required to be retained in accordance
with the rules and regulations of the NASD).
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Notes to furnish to the Company such information regarding
such Holder and the proposed distribution by such Holder of such Registrable
Notes as the Company may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from any Issuer of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(ii)-(vii)
hereof, such Holder will forthwith discontinue disposition of Registrable Notes
pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(k) hereof,
and, if so directed by the Company, such Holder will deliver to the Company (at
its expense) all copies in its possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such Registrable Notes
current at the time of receipt of such notice. If any Issuer shall give any such
notice to suspend the disposition of Registrable Notes pursuant to a Shelf
Registration Statement as a result of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(vi) hereof,
the Issuers shall be deemed to have used their reasonable best efforts to keep
the Shelf Registration Statement effective during such period of suspension
provided that the Issuers shall use their reasonable best efforts to file and
have declared effective (if an amendment) as soon as practicable an amendment or
supplement to the Shelf Registration Statement and 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, provided, however, that the Company may notify the
Holders of its suspension of any Shelf Registration Statement (and, upon receipt
of such notice, the Holders shall not be authorized by the Company to resell and
shall not resell Registrable Notes pursuant to such Shelf Registration Statement
during such period of suspension) if the Board of Directors of the Company
determines in good faith that there is a valid purpose for the suspension (which
notice may be given twice during any 365-day period and no such suspension may
exceed 30 days), and such suspensions shall not give rise to any right to
receive additional interest pursuant to Section 2(d) hereof.
18
4. Underwritten Registrations. If any of the Registrable Notes covered
by any Shelf Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Majority Holders of such Registrable Notes
included in such offering and shall be reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution. (a) The Issuers shall indemnify
and hold harmless each Initial Purchaser, each Holder, including Participating
Broker-Dealers, each underwriter who participates in an offering of Registrable
Notes, their respective affiliates, and the respective directors, officers,
employees, agents and each Person, if any, who controls any of such parties
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which
Exchange Notes or Registrable Notes were registered under the 1933 Act,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
19
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 5(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by CSFBC),
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon, any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) of this Section 5(a);
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Initial
Purchasers, any Holder, including Participating Broker-Dealers, or any
underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto);
(b) In the case of a Shelf Registration, each Holder agrees, severally
and not jointly, to indemnify and hold harmless each Issuer, each Initial
Purchaser, each underwriter who participates in an offering of Registrable Notes
and the other selling Holders and each of their respective directors and
officers (including each officer of any Issuer who signed the Shelf Registration
Statement) and each Person, if any, who controls any Issuer, any Initial
Purchaser, any underwriter or any other selling Holder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 5(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Shelf Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Holder expressly for use in
the Shelf Registration Statement (or any amendment thereto), or the Prospectus
(or any amendment or supplement thereto); provided, however, that no such Holder
shall be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Notes pursuant to such
Shelf Registration Statement.
20
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to either paragraph (a) or
paragraph (b) above, such person (the "indemnified party") shall give notice as
promptly as reasonably practicable to each person against whom such indemnity
may be sought (the "indemnifying party"), but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action and may assume
the defense thereof with counsel reasonably satisfactory to such indemnified
party, and shall pay the fees and expenses of such counsel; provided, however,
(i) if the indemnifying party fails to assume such defense in a timely manner or
(ii) if there exists or is reasonably likely to exist a conflict of interest
that would make it inappropriate in the reasonable judgment of such indemnified
party for the same counsel to represent both the indemnified party and the
indemnifying party, then such indemnified party shall be entitled to retain its
own counsel at the expense of the indemnifying party. In respect of any claim,
action or proceeding the defense of which shall have been assumed by the
indemnifying party, in accordance with the foregoing, each indemnified party
shall have the right to participate in such litigation and to retain its own
counsel at its own expense. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel, in addition to any local
counsel, separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 5 hereof (whether or not the indemnified parties are actual
or potential parties thereof), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party;
21
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel for which they are entitled to indemnification hereunder, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 5(a)(ii) hereof effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party for such fees and
expenses of counsel in accordance with such request prior to the date of such
settlement;
(e) If the indemnification provided for in any of the indemnity
provisions set forth in this Section 5 is for any reason held to be unavailable
or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, in such proportion as is appropriate to reflect the relative fault of
such indemnifying party or parties on the one hand, and such indemnified party
or parties on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party or parties on the one hand, and such indemnified party or
parties on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or parties or such indemnified party or
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Issuers, the
Initial Purchasers and the Holders of the Registrable Notes agree that it would
not be just and equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation (even if the Holders were treated as one
entity, and the Initial Purchasers were treated as one entity, for such purpose)
or by another method of allocation which does not take account of the equitable
considerations referred to above in Section 5. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 5 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by an governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5, each person, if any, who
controls an Initial Purchaser or a Holder within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchaser or Holder, and each director of any
Issuer, each officer of any Issuer who signed the Registration Statement, and
each Person, if any, who controls any Issuer within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Issuers. The parties hereto agree that any underwriting
discount or commission or reimbursement of fees paid to any Initial Purchaser
pursuant to the Purchase Agreement shall not be deemed to be a benefit received
by any Initial Purchaser in connection with the offering of the Exchange Notes
or Registrable Notes in such offering.
22
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as the
Company is subject to the reporting requirements of Section 13 or 15 of the 1934
Act, the Company covenants that it will file the reports required to be filed by
it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act, that if it
ceases to be so required to file such reports, it will upon the written request
of any Holder of Registrable Notes (i) make publicly available such information
as is necessary to permit sales pursuant to Rule 144 under the 1933 Act, (ii)
deliver such information to a prospective purchaser as is necessary to permit
sales pursuant to Rule 144A under the 1933 Act and they will take such further
action as any Holder of Registrable Notes may reasonably request, and (iii) take
such further action that is reasonable in the circumstances, in each case, to
the extent required from time to time to enable such Holder to sell its
Registrable Notes without registration under the 1933 Act within the limitation
of the exemptions provided by (x) Rule 144 under the 1933 Act, as such Rule may
be amended from time to time, (y) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (z) any similar rules or regulations hereafter
adopted by the SEC. Upon the written request of any Holder of Registrable Notes,
the Company will deliver to such Holder a written statement as to whether or not
they have complied with such requirements.
(b) No Inconsistent Agreements. None of the Issuers has entered into,
and none of the Issuers on or after the date of this Agreement will enter into,
any agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of any
Issuer's other issued and outstanding securities under any such agreements.
(c) 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 has obtained the written consent of Holders of at least
a majority in aggregate principal amount of the outstanding Registrable Notes
affected by such amendment, modification, supplement, waiver or departure;
provided, however, that no amendment, modification, supplement or waiver or
consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Notes unless consented to in
writing by such Holder.
23
(d) 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 (other than an Initial Purchaser), at the most
current address set forth on the records of the Registrar under the Indenture,
(ii) if to an Initial Purchaser, at the most current address given by such
Initial Purchaser to the Company by means of a notice given in accordance with
the provisions of this Section 6(d), which address initially is the address set
forth in the Purchase Agreement; and (iii) if to the Issuers, 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 6(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; and when
receipt is acknowledged, by recipient's telecopy operator, if telecopied; and on
the next business day if delivered to a 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.
(e) 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 Notes in
violation of the terms hereof or of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Notes, in any manner,
whether by operation of law or otherwise, such Registrable Notes shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Notes, 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,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers, 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 they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
24
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
25
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
NDCHEALTH CORPORATION
By: /s/ Randolph. L.M. Hutto
------------------------------------------
Name: Randolph L.M. Hutto
Title: Executive Vice President, Chief
Financial Officer and Secretary
NDC HEALTH INFORMATION SERVICES (ARIZONA) INC.
By: /s/ Randolph L.M. Hutto
------------------------------------------
Name: Randolph L.M. Hutto
Title: Vice President and Chief Financial
Officer
THE COMPUTER PLACE, INC.
By: /s/ Randolph L.M. Hutto
------------------------------------------
Name: Randolph L.M. Hutto
Title: Vice President and Chief Financial
Officer
NDCHEALTH INTELLECTUAL PROPERTY CORP.
By: /s/ Randolph L.M. Hutto
------------------------------------------
Name: Randolph L.M. Hutto
Title: President
HISIP CORP.
By: /s/ Randolph L.M. Hutto
------------------------------------------
Name: Randolph L.M. Hutto
Title: President
NDCIP, INC.
By: /s/ Randolph L.M. Hutto
------------------------------------------
Name: Randolph L.M. Hutto
Title: President
NDCHEALTH LICENSING, INC.
By: /s/ Randolph L.M. Hutto
------------------------------------------
Name: Randolph L.M. Hutto
Title: President
TECHRX INCORPORATED
By: /s/ Joseph J. Porfeli
------------------------------------------
Name: Joseph J. Porfeli
Title: Chief Executive Officer
NDC OF CANADA, INC.
By: /s/ Randolph L.M. Hutto
------------------------------------------
Name: Randolph L.M. Hutto
Title: Vice President and Chief Financial
Officer
NDC ACQUISITION CORP.
By: /s/ Randolph L.M. Hutto
------------------------------------------
Name: Randolph L.M. Hutto
Title: Executive Vice President, Chief
Financial Officer and Treasurer
Confirmed and accepted as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
U.S. BANCORP PIPER JAFFRAY INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Ananth S. Bhogaraju
- ------------------------------------------
Name: Ananth S. Bhogaraju
Title: Director