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Exhibit 4.3
$100,000,000
▇▇▇▇▇▇-FIELD HEALTH PRODUCTS, INC.
9-3/4% Senior Subordinated Notes due 2007
REGISTRATION RIGHTS AGREEMENT
August 4, 1997
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
▇▇▇▇▇▇-Field Health Products, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "Initial
Purchaser"), upon the terms set forth in a purchase agreement dated as of July
30, 1997 (the "Purchase Agreement"), an aggregate of $100,000,000 principal
amount of its 9-3/4% Senior Subordinated Notes due 2007 (the "Notes"). The Notes
will be issued pursuant to an indenture (the "Indenture") dated as of August 4,
1997, between the Company, the entities listed in Schedule I hereto (the
"Guaranteeing Subsidiaries") and American Stock Transfer & Trust Company, as
trustee (the "Trustee"). As an inducement to the Initial Purchaser to enter into
the Purchase Agreement and in satisfaction of a condition to the obligations of
the Initial Purchaser thereunder, the Company and the Guaranteeing Subsidiaries
agree with the Initial Purchaser, for the benefit of the holders of the Notes
(including, without limitation, the Initial Purchaser), as follows:
Section 1. Definitions.
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Broker-Dealer Transfer Restricted Securities: New Notes that are
acquired by a Broker-Dealer in the Exchange Offer in exchange for Notes that
such Broker-Dealer acquired for its own account as a result of market-making
activities or other trading activities (other than Notes acquired directly from
the Company or any of its affiliates).
Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the New Notes to be issued in the Exchange Offer, (b) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof and (c) the delivery by the Company and
the Guaranteeing Subsidiaries to the Registrar under the Indenture of New Notes
in the same aggregate principal amount as the aggregate principal amount of
Notes tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Transfer
Restricted Securities, each Interest Payment Date.
Definitive Note: Any Notes other than a Global Note.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company and the Guaranteeing
Subsidiaries under the Act of the New Notes pursuant to the Exchange Offer
Registration Statement under which the Company and the Guaranteeing Subsidiaries
shall offer the Holders of all outstanding Notes the opportunity to exchange all
such outstanding Notes for New Notes in an aggregate principal amount equal to
the aggregate principal amount of the Notes tendered in such exchange offer by
such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Global Note: As defined in the Indenture.
Holders: As defined in Section 2 hereof.
Indemnified Holder: As defined in Section 8 hereof.
Indenture: The Indenture, dated the Closing Date, among the Company,
the Guaranteeing Subsidiaries and the Trustee, pursuant to which the Notes are
to be issued, as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Notes.
New Notes: The Company's 9-3/4% Senior Subordinated Notes due 2007
to be issued pursuant to the Indenture (i) in the Exchange Offer or (ii) upon
the request of any Holder of Notes covered by a Shelf Registration Statement, in
exchange for such Notes.
Non-Company Indemnitee: As defined in Section 8 hereof.
Person: An individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement at
the time such
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Registration Statement is declared effective, as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.
Record Holder: With respect to any Damages Payment Date, each Person
who is a Holder of Notes on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
and the Guaranteeing Subsidiaries relating to (a) an offering of New Notes
pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) which is filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds
Broker-Dealer Transfer Restricted Securities.
Shelf Registration: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note, until the earliest to
occur of (a) the date on which such Note is exchanged in the Exchange Offer and
entitled to be resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Act, (b) the date on which such Note
has been disposed of in accordance with a Shelf Registration Statement, (c) the
date on which such Note is disposed of by a Broker-Dealer pursuant to the "Plan
of Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein) or (d) the date on
which such Note is distributed to the public pursuant to Rule 144 under the Act.
"Transfer Restricted Securities" shall be deemed to include the guarantees of
the Company's obligations under the Indenture and the Notes by the Guaranteeing
Subsidiaries.
Section 2. Securities Subject To This Agreement.
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
Section 3. Exchange Offer.
(a) Unless the Exchange Offer shall not be permitted by applicable
federal
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law or Commission policy, the Company and the Guaranteeing Subsidiaries shall
(i) cause to be filed with the Commission as soon as practicable after the
Closing Date, but in no event later than 60 days after the Closing Date, the
Exchange Offer Registration Statement, (ii) use their respective best efforts to
cause such Exchange Offer Registration Statement to become effective at the
earliest possible time, but in no event later than 120 days after the Closing
Date, (iii) in connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be necessary in
order to cause such Exchange Offer Registration Statement to become effective,
(B) file, if applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Act and (C) cause all
necessary filings, if any, in connection with the registration and qualification
of the New Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, commence and
Consummate the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the New Notes to be offered in exchange for the
Notes that are Transfer Restricted Securities and to permit sales of
Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers as
contemplated by Section 3(c) below.
(b) The Company and the Guaranteeing Subsidiaries shall use their
respective best efforts to cause the Exchange Offer Registration Statement to be
effective continuously, and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 days. The Company and the Guaranteeing
Subsidiaries shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Notes shall be
included in the Exchange Offer Registration Statement. The Company and the
Guaranteeing Subsidiaries shall use their respective best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 30 days thereafter.
(c) The Company and the Guaranteeing Subsidiaries shall include a
"Plan of Distribution" section in the Prospectus contained in the Exchange Offer
Registration Statement and indicate therein that any Restricted Broker-Dealer
who holds Notes that are Transfer Restricted Securities and that were acquired
for the account of such Broker-Dealer as a result of market-making activities or
other trading activities, may exchange such Notes (other than Transfer
Restricted Securities acquired directly from the Company or any of its
affiliates) pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Act and must, therefore,
deliver a prospectus meeting the requirements of the Act in connection with its
initial sale of each New Note received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Notes held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
The Company and the Guaranteeing Subsidiaries shall use their
respective best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Section 6 below to the extent necessary to ensure
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that it is available for sales of Broker-Dealer Transfer Restricted Securities
by Restricted Broker-Dealers, and to ensure that such Registration Statement
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of 180 days from the date on which the Exchange Offer is Consummated.
The Company and the Guaranteeing Subsidiaries shall promptly provide
sufficient copies of the latest version of such Prospectus to such Restricted
Broker-Dealers promptly upon request, and in no event later than one day after
such request, at any time during such 180-day period in order to facilitate such
sales.
Section 4. Shelf Registration.
(a) Shelf Registration. If (i) the Company is not required to file
an Exchange Offer Registration Statement with respect to the New Notes because
the Exchange Offer is not permitted by applicable law or Commission policy or
(ii) any Holder of Transfer Restricted Securities shall notify the Company
within 20 days following the Consummation of the Exchange Offer that (A) such
Holder was prohibited by law or Commission policy from participating in the
Exchange Offer or (B) such Holder may not resell the New Notes acquired by it in
the Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) such Holder is a
Broker-Dealer and holds Notes acquired directly from the Company or one of its
affiliates, then the Company and the Guaranteeing Subsidiaries shall (x) cause
to be filed on or prior to 45 days after the date on which the Company
determines that it is not required to file the Exchange Offer Registration
Statement pursuant to clause (i) above or 45 days after the date on which the
Company receives the notice specified in clause (ii) above a shelf registration
statement pursuant to Rule 415 under the Act (the "Shelf Registration") (which
may be an amendment to the Exchange Offer Registration Statement (in either
event, the "Shelf Registration Statement")), relating to all Transfer Restricted
Securities the Holders of which shall have provided the information required
pursuant to Section 4(b) hereof, and shall (y) use their respective best efforts
to cause such Shelf Registration Statement to become effective on or prior to
120 days after the date on which the Company becomes obligated to file such
Shelf Registration Statement. If, after the Company has filed an Exchange Offer
Registration Statement which satisfies the requirements of Section 3(a) above,
the Company is required to file and make effective a Shelf Registration
Statement solely because the Exchange Offer shall not be permitted under
applicable federal law or Commission policy, then the filing of the Exchange
Offer Registration Statement shall be deemed to satisfy the requirements of
clause (x) above. Such an event shall have no effect on the requirements of
clause (y) above. The Company and the Guaranteeing Subsidiaries shall use their
respective best efforts to keep the Shelf Registration Statement discussed in
this Section 4(a) continuously effective, supplemented and amended as required
by and subject to the provisions of Section 6 hereof to the extent necessary to
ensure that it is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a), and to ensure that
it conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years following the date on which such Shelf Registration
Statement first becomes effective under the Act or such shorter period ending
when all of the Transfer Restricted Securities available for sale thereunder
have been sold.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its
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Transfer Restricted Securities in any Shelf Registration Statement pursuant to
this Agreement unless and until such Holder furnishes to the Company and the
Guaranteeing Subsidiaries in writing, within 20 days after receipt of a request
therefor, such information specified in Item 507 of Regulation S-K under the Act
for use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer Restricted
Securities shall be entitled to Liquidated Damages pursuant to Section 5 hereof
unless and until such Holder shall have provided all such information. Each
Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company and the Guaranteeing Subsidiaries all
information required to be disclosed in order to make the information previously
furnished to them by such Holder not materially misleading.
Section 5. Liquidated Damages.
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) any such Registration Statement has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement, (iii) the Exchange Offer has not been
Consummated within 30 days after the Exchange Offer Registration Statement is
first declared effective by the Commission or (iv) any Registration Statement
required by this Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose without
being succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself declared effective
immediately (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then the Company and the Guaranteeing Subsidiaries
hereby jointly and severally agree to pay liquidated damages to each Holder of
Transfer Restricted Securities with respect to the first 90-day period
immediately following the occurrence of such Registration Default, in an amount
equal to $.05 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof that the
Registration Default continues. The amount of the liquidated damages shall
increase by an additional $.05 per week per $1,000 in principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
liquidated damages of $.50 per week per $1,000 principal amount of Transfer
Restricted Securities. Notwithstanding anything to the contrary set forth
herein, (1) upon filing of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (i) above, (2)
upon the effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon
the filing of a post-effective amendment to the Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the liquidated
damages payable with respect to the Transfer Restricted Securities as a result
of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders by wire
transfer of immediately available funds or by federal funds check and to Holders
of Definitive Notes by mailing checks to their registered addresses on each
Damages Payment Date. All obligations of the Company and the Guaranteeing
Subsidiaries set forth in the preceding paragraph that are outstanding with
respect to any Transfer Restricted Security at the time such security ceases to
be a Transfer Restricted Security shall survive until such time as all such
obligations with respect to such security shall have been satisfied in full.
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Section 6. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 4 hereof and, to the extent applicable, the
Exchange Offer contemplated by Section 3 hereof, the Company and the
Guaranteeing Subsidiaries shall:
(a) furnish to the Initial Purchaser, prior to the filing thereof
with the Commission, a copy of the Registration Statement and each amendment
thereof and each supplement, if any, to the Prospectus included therein and
shall obtain the consent (which shall not be unreasonably withheld or delayed)
of the Initial Purchaser to any such filing;
(b) advise the Initial Purchaser and the holders of the Notes and
the New Notes (to the extent applicable) in writing:
(i) when the Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company and Guaranteeing Subsidiaries
of any notification with respect to the suspension of the qualification of
the Notes and New Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company and
the Guaranteeing Subsidiaries to make changes in the Registration
Statement or the Prospectus in order to make the statements therein not
misleading (which advice shall be accompanied by an instruction that such
notice constitutes material nonpublic information, and to suspend the use
of the Prospectus until the requisite changes have been made, and which
instruction shall require that such holders shall not communicate such
material nonpublic information to any third party and shall not sell or
purchase, or offer to sell or purchase, any securities of the Company or
Guaranteeing Subsidiaries after receipt of such advice and prior to the
effectiveness of any action required to be taken by the Company pursuant
to Section 6(h) hereof);
(c) use all reasonable efforts to prevent the issuance or obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest possible time;
(d) furnish to each holder of Notes included within the coverage of
the Shelf Registration, without charge, at least one copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the holder so requests in writing, all
exhibits (including those incorporated by reference);
(e) deliver to each holder of Notes included within the coverage of
the Shelf
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Registration, if any, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in the Registration Statement
with respect to the Shelf Registration and any amendment or supplement thereto
as such persons may reasonably request. The Company and the Guaranteeing
Subsidiaries consent, subject to the provisions of the Agreement, to the use of
the Prospectus or any amendment or supplement thereto by each of the selling
holders of Notes in connection with the offering and sale of the Notes covered
by the Prospectus, or any amendment or supplement thereto, included in such
Registration Statement;
(f) prior to any public offering of Notes pursuant to the Shelf
Registration, register or qualify or cooperate with the holders of securities
included therein and their respective counsel in connection with the
registration or qualification of such Notes for offer and sale under the
securities or blue sky laws of such jurisdictions in the United States as any
holder of Notes 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 covered by the Shelf Registration; provided that neither the
Company nor any Guaranteeing Subsidiary shall be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified,
(ii) take any action that would subject it to the service of process in suits,
other than as to matters and transactions relating to the Shelf Registration, in
any jurisdiction where it is not now subject or (iii) take any action which
would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject;
(g) cooperate with the holders of the Notes to facilitate the timely
preparation and delivery of certificates representing Notes to be sold in the
Shelf Registration free of any restrictive legends and in such denominations and
registered in such names as the holders may request a reasonable period of time
prior to sales of Notes pursuant to the Shelf Registration;
(h) upon the occurrence of any event contemplated by Section 6(b)(v)
above, as promptly as reasonably practicable, prepare a post-effective amendment
to the Registration Statement or a supplement to the related Prospectus or file
any other required document so that, as thereafter delivered to purchasers of
the Notes, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading;
(i) not later than the effective date of the applicable Registration
Statement, provide a CUSIP number for the New Notes and provide the applicable
trustee with printed certificates for the Notes or New Notes, as the case may
be, in a form eligible for deposit with The Depository Trust Company;
(j) use all reasonable efforts to comply with all rules and
regulations of the Commission to the extent and so long as they are applicable
to the Exchange Offer or the Shelf Registration and will make generally
available to its security holders (or otherwise provide in accordance with
Section 11(a) of the Securities Act and Rule 158 promulgated thereunder) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration, which statement shall cover such 12-month period; and
(k) cause the Indenture (or an indenture substantially identical to
the Indenture in the case of an Exchange Offer) to be qualified under the Trust
Indenture Act of 1939, as amended.
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The Company and the Guaranteeing Subsidiaries may require each
Holder of Notes to be sold pursuant to the Shelf Registration to furnish to them
such information regarding the Holder and the distribution of such Notes as they
may from time to time reasonably require for inclusion in the Registration
Statement. The Company and the Guaranteeing Subsidiaries may also require each
holder of Notes participating in the Exchange Offer to represent to them that at
the time of the consummation of the Exchange Offer (i) such holder is not an
affiliate of the Company or any Guaranteeing Subsidiary within the meaning of
Rule 158, (ii) any New Notes received by such holder will be acquired in the
ordinary course of its business and (iii) such holder will have no arrangement
or understanding with any person to participate in the distribution of the Notes
or the New Notes within the meaning of the Act. Each holder agrees by
acquisition of Notes that, upon receipt of any notice from the Company and the
Guaranteeing Subsidiary of the existence of any fact of the kind described in
Section 6(b)(v) hereof, such holder will forthwith discontinue disposition of
Notes until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(h) hereof, or until it is advised in
writing by the Company and the Guaranteeing Subsidiaries that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings with respect to the Prospectus. If so directed by the
Company and the Guaranteeing Subsidiaries, each holder will deliver to the
Company and the Guaranteeing Subsidiaries (at the Company's and Guaranteeing
Subsidiaries' expense) all copies, other than permanent file copies then in such
holder's possession, of the Prospectus covering such Notes current at the time
of receipt of such notice.
Section 7. Registration Expenses. The Company and the Guaranteeing
Subsidiaries shall bear all reasonable expenses incurred in connection with the
performance of their obligations under Sections 3 through 6 hereof and, in the
event of a Shelf Registration, shall bear or reimburse the holders of the Notes
for the reasonable fees and disbursements of one firm of counsel designated by
the holders of a majority in principal amount of the Notes to act as counsel for
the holders of the Notes in connection therewith.
Section 8. Indemnification. (a) The Company and the Guaranteeing
Subsidiaries, jointly and severally, agree to indemnify and hold harmless (i)
the Initial Purchaser, (ii) each holder of Notes and/or New Notes (including
Broker-Dealers receiving New Notes in the Exchange Offer)(each an "Indemnity
Holder"), (iii) each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Initial Purchaser or any
Indemnity Holder (any of the persons referred to in this clause (iii) being
hereinafter referred to as a "controlling person") and (iv) the respective
officers, directors, partners, employees, representatives and agents of the
Initial Purchaser or any Indemnity Holder or any controlling person (any person
referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as
a "Non-Company Indemnitee"), to the fullest extent lawful, from and against any
and all losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (or any amendments or supplements thereto)
prepared in accordance with this Agreement, including any document incorporated
by reference therein, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except, with respect to any Non-Company
Indemnitee, insofar as such losses, claims, damages, liabilities or judgments
(1) are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information furnished in writing to the Company
or the Guaranteeing Subsidiaries by such Non-Company Indemnitee expressly for
use therein or (2) with respect to any preliminary Prospectus, result from the
fact that such Non-Company Indemnitee sold Notes or New Notes to a person to
whom there was not sent or given,
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at or prior to the written confirmation of such sale, a copy of the final
Prospectus, as amended or supplemented, if required under the Act and if the
Company or the Guaranteeing Subsidiaries shall have previously furnished copies
thereof to such Non-Company Indemnitee in accordance with this Agreement and the
final Prospectus, as amended or supplemented, would have corrected such untrue
statement or omission.
(b) In case any action shall be brought against any Non-Company
Indemnitee based upon any Registration Statement or Prospectus, or any amendment
or supplement thereto, and with respect to which indemnity may be sought against
the Company and/or the Guaranteeing Subsidiaries, such Non-Company Indemnitee
shall promptly notify the Company and the Guaranteeing Subsidiaries in writing
and the Company and the Guaranteeing Subsidiaries shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
Non-Company Indemnitee and payment of all fees and expenses. Such Non-Company
Indemnitee shall have the right to employ separate counsel in any such action
and participate in the defense thereof, but the fees and expenses of counsel
shall be paid by such Non-Company Indemnitee, unless (i) the employment of such
counsel shall have been specifically authorized in writing by the Company and
the Guaranteeing Subsidiaries, (ii) the Company or the Guaranteeing Subsidiaries
shall have failed to assume the defense and employ counsel or (iii) the named
parties to any such action (including any impleaded parties) include both such
Non-Company Indemnitee and the Company and/or the Guaranteeing Subsidiaries and
such Non-Company Indemnitee shall have been advised by counsel that it would be
inappropriate for the same counsel to represent such Non-Company Indemnitee and
the Company and/or the Guaranteeing Subsidiaries (in which case the Company
and/or the Guaranteeing Subsidiaries shall not have the right to assume the
defense of such action on behalf of such Non-Company Indemnitee, it being
understood, however, that neither the Company nor any Guaranteeing Subsidiary
shall, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
the Non-Company Indemnitees, which firm shall be designated in writing by the
Non-Company Indemnitees and whose fees and expenses reasonably incurred shall be
reimbursed as they are incurred). The Company and the Guaranteeing Subsidiaries
shall not be liable for any settlement of any such action effected without the
written consent of the Company and the Guaranteeing Subsidiary, but if settled
with the written consent of the Company and the Guaranteeing Subsidiary, the
Company and the Guaranteeing Subsidiaries agree to indemnify and hold harmless
any Non-Company Indemnitee from and against any amounts payable pursuant to such
written consent in connection with such settlement. Notwithstanding the
immediately preceding sentence, if in any case where the fees and expenses of
counsel are at the expense of the Company and/or the Guaranteeing Subsidiaries
and a Non-Company Indemnitee shall have requested the Company and/or the
Guaranteeing Subsidiaries to reimburse such Non-Company Indemnitee for such fees
and expenses of counsel as incurred, the Company and the Guaranteeing
Subsidiaries agree that they shall be liable for any settlement of any action
effected without their written consent if (i) such settlement is entered into
more than 30 business days after the receipt by the Company and the Guaranteeing
Subsidiaries of the aforesaid request and (ii) the Company and/or the
Guaranteeing Subsidiaries shall have failed to reimburse such Non-Company
Indemnitee in accordance with such request for reimbursement prior to the date
of such settlement. The Company and the Guaranteeing Subsidiaries shall not,
without the prior written consent of such Non-Company Indemnitee, effect any
settlement of any pending or threatened proceeding in respect of which such
Non-Company Indemnitee is or could have been a party and indemnity could have
been sought hereunder by such Non-Company Indemnitee, unless such settlement
includes an unconditional release of such Non-Company Indemnitee from all
liability on claims that are the
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subject matter of such proceeding.
(c) Each Indemnity Holder agrees to indemnify and hold harmless (i)
the Company and the Guaranteeing Subsidiaries, (ii) the Initial Purchaser, (iii)
each other Indemnity Holder, (iv) any person controlling (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company, the
Initial Purchaser and each other Indemnity Holder and (v) the respective
officers, directors, partners, employees, representatives and agents of each of
the parties referred to in clauses (i), (ii), (iii) and (iv), to the same extent
as the foregoing indemnity from the Company and the Guaranteeing Subsidiaries to
each of the Non-Company Indemnitees, but only with respect to information
relating to such Indemnity Holder that was furnished in writing by such
Indemnity Holder expressly for use in any Registration Statement (or any
amendment or supplement thereto) prepared in accordance with this Agreement. In
no event shall the liability of any Indemnity Holder hereunder be greater in
amount by which the dollar amount of the proceeds received by such Indemnity
Holder upon the sales of the Notes or New Notes giving rise to such
indemnification obligation exceeds the amount of any damages which such
Indemnity Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to herein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments in such proportion as is appropriate to
reflect the relative fault of the indemnifying party, on the one hand, and the
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party, on the one hand, and the indemnified party, on
the other hand, 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
indemnifying party, on the one hand, or the indemnified party, on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Guaranteeing Subsidiaries, the Initial Purchaser
and each Indemnity Holder agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The losses, claims, damages, liabilities or judgments of an indemnified party
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim prior to the indemnifying party's
assumption of the defense thereof or subsequent thereto to the extent permitted
by the second sentence of Section 8(b) hereof. Notwithstanding the provisions of
this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Indemnity Holders shall be required to contribute,
in the aggregate, any amount in excess of the amount by which the total amount
received by such Indemnity Holder with respect to the sale of Notes or New Notes
exceeds the amount of any damages which such Indemnity Holder has otherwise been
required to pay by reason of 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of Indemnity Holders to contribute
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pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Notes and/or New Notes held by each of the Indemnity Holders
hereunder and not joint.
Section 9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company and Guaranteeing
Subsidiaries have obtained the written consent of holders of a majority in
aggregate principal amount of the Notes.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier which guarantees overnight delivery:
(1) If to a holder of Notes or New Notes, at the most current
address given by such holder to the Company or Guaranteeing Subsidiary in
accordance with the provisions of this Section 9(b), which address
initially is, with respect to each holder, the address of such holder to
which confirmation of the sale of Notes or New Notes to such holder was
first sent, with a copy in like manner to the Initial Purchaser c/o ▇▇▇▇▇
▇▇▇▇▇▇ Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(2) If to the Company or Guaranteeing Subsidiary, at the
following address:
▇▇▇▇▇▇-Field Health Products, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged by recipient's
telecopy operator, if telecopied; and on the day delivered, if sent by overnight
air courier guaranteeing next day delivery.
(c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation, and without the need for an express
assignment, subsequent holders of the Notes and the New Notes.
(d) 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.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and construed
in
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accordance with the laws of the State of New York, without regard to its
conflicts of laws rules.
(g) Severability. If 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.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Guaranteeing Subsidiaries and the Initial Purchaser.
SIGNATURES
Dated as of August 4, 1997
▇▇▇▇▇▇-FIELD HEALTH
PRODUCTS, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
AQUA-THERM CORP.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
BRISTOLINE, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
EVEREST & ▇▇▇▇▇▇▇▇
CANADIAN LTD.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
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15
EVEREST & ▇▇▇▇▇▇▇▇
DE MEXICO S.A. DE C.V.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
EVEREST & ▇▇▇▇▇▇▇▇, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
EVEREST & ▇▇▇▇▇▇▇▇
INTERNATIONAL LTD.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
EVEREST & ▇▇▇▇▇▇▇▇ LIFESTYLES
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
EXNEWT, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
FREEWAY INVESTMENT CORP.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
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16
G.F.E. HEALTHCARE PRODUCTS CORP.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
▇▇▇▇▇▇-FIELD BANDAGE, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
▇▇▇▇▇▇-FIELD DISTRIBUTION, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
▇▇▇▇▇▇-FIELD EUROPEAN
DISTRIBUTION CORPORATION LIMITED
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
▇▇▇▇▇▇-FIELD EXPRESS, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
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17
▇▇▇▇▇▇-FIELD EXPRESS (DALLAS), INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
▇▇▇▇▇▇-FIELD EXPRESS
(PUERTO RICO) INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
▇▇▇▇▇▇-FIELD, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
▇▇▇▇▇▇-FIELD TEMCO, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
HEALTH AND MEDICAL
TECHNIQUES, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
HEALTHTEAM, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
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INTERNATIONAL MEDICAL
EQUIPMENT CORP.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
THE ▇▇▇▇▇▇▇▇ INVESTMENT COMPANY
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
KUSCHALL OF AMERICA, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
LABAC SYSTEMS, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
LABTRON SCIENTIFIC CORP.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
M.E. TEAM, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
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19
Title:
MCT ACQUISITION CORP.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
MEDISCO, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
METAL PRODUCTS CORP.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
PATIENT TECHNOLOGY, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
PROFESSIONAL SECURITIES CORP.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
RABSON MEDICAL SALES, LTD.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
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▇▇▇▇▇ & ▇▇▇▇▇ MANUFACTURING
COMPANY
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
VENTILATOR CORP.
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
Dated as of August 4, 1997
(SEAL)
AMERICAN STOCK TRANSFER &
TRUST COMPANY
as Trustee
Attest: By:
--------------------------- -------------------------------------
Name:
Title:
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Accepted in New York, New York
______________, 1997
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
-----------------------------------------------
Name:
Title:
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SCHEDULE I
AQUA-THERM CORP.
BRISTOLINE, INC.
EVEREST & ▇▇▇▇▇▇▇▇ CANADIAN LTD.
EVEREST & ▇▇▇▇▇▇▇▇ DE MEXICO S.A. DE C.V.
EVEREST & ▇▇▇▇▇▇▇▇, INC.
EVEREST & ▇▇▇▇▇▇▇▇ INTERNATIONAL LTD.
EVEREST & ▇▇▇▇▇▇▇▇ LIFESTYLES
EXNEWT, INC.
FREEWAY INVESTMENT CORP.
G.F.E. HEALTHCARE PRODUCTS CORP.
▇▇▇▇▇▇-FIELD BANDAGE, INC.
▇▇▇▇▇▇-FIELD DISTRIBUTION, INC.
▇▇▇▇▇▇-FIELD EUROPEAN DISTRIBUTION CORPORATION
▇▇▇▇▇▇-FIELD EXPRESS, INC.
▇▇▇▇▇▇-FIELD EXPRESS (DALLAS), INC.
▇▇▇▇▇▇-FIELD EXPRESS (PUERTO RICO) INC.
▇▇▇▇▇▇-FIELD, INC.
▇▇▇▇▇▇-FIELD TEMCO, INC.
HEALTH AND MEDICAL TECHNIQUES, INC.
HEALTHTEAM, INC.
INTERNATIONAL MEDICAL EQUIPMENT CORP.
THE ▇▇▇▇▇▇▇▇ INVESTMENT COMPANY
KUSCHALL OF AMERICA, INC.
LABAC SYSTEMS, INC.
LABTRON SCIENTIFIC CORP.
M.E. TEAM, INC.
MCT ACQUISITION CORP.
MEDISCO, INC.
METAL PRODUCTS CORP.
PATIENT TECHNOLOGY, INC.
PROFESSIONAL SECURITIES CORP.
RABSON MEDICAL SALES, LTD.
▇▇▇▇▇ & ▇▇▇▇▇ MANUFACTURING COMPANY
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
VENTILATOR CORP.
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