Exhibit 4.3
Execution Version
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REGISTRATION RIGHTS AGREEMENT
Dated as of November 12, 2003
by and among
TRIAD HOSPITALS, INC.
and
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
and
BANC OF AMERICA SECURITIES LLC
as Representatives of the Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of November 12, 2003 by and among TRIAD HOSPITALS, INC., a
Delaware corporation (the "Company") and ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED and BANC OF AMERICA SECURITIES LLC, as representatives of the
Initial Purchasers listed on Schedule A hereto (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
November 6, 2003 by and among the Company and the Initial Purchasers (the
"Purchase Agreement"), which provides for, among other things, the sale by the
Company to the Initial Purchasers of an aggregate of $600,000,000 principal
amount of the Company's 7% Senior Subordinated Notes due 2013 (the "Securities")
as described in the Purchase Agreement. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has 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:
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(r)
hereof.
"Business Day" shall mean a day that is not a Saturday, a Sunday, or a
day on which banking institutions in New York, New York are required to be
closed.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"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.
"Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
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"Effectiveness Target Date" shall have the meaning set forth in
Section 2(e) hereof.
"Event Date" shall have the meaning set forth in Section 2(e) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on an appropriate form under the Securities Act, 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.
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Securities" shall mean the $600,000,000 7% Senior
Subordinated Notes due 2013, issued by the Company pursuant to and entitled
to the benefits of, the Indenture (which shall be qualified under the TIA)
and registered pursuant to an effective Registration Statement under the
Securities Act, to be offered to Holders of Securities in exchange for
Securities pursuant to the Exchange Offer, which shall be identical to such
Securities (except that (i) interest thereon shall accrue from the last
date on which interest was paid on such Securities or, if no such interest
has been paid, from the Issue Date and (ii) the transfer restrictions
thereon shall be eliminated).
"Holders" shall mean the Initial Purchasers, for so long as they own
any Transfer Restricted Securities, each of their direct and indirect
successors, assigns and transferees who become registered owners of
Transfer Restricted Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities dated
as of November 12, 2003, among the Company and Citibank N.A., as trustee,
as the same may be amended from time to time in accordance with the terms
thereof.
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"Initial Purchasers" shall have the meaning set forth in the preamble
to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(m) hereof.
"Issue Date" shall mean the date on which the Securities are
originally issued.
"Majority Holders" shall mean, subject to Section 7(k), the Holders of
a majority of the aggregate principal amount of outstanding Transfer
Restricted Securities.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(r) hereof.
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a)
hereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"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 Transfer Restricted Securities 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
to this Agreement.
"Records" shall have the meaning set forth in Section 3(m) hereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all applicable SEC, stock exchange or National
Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including reasonable
fees and disbursements of one counsel for any Holder that is an Initial
Purchaser in connection with blue sky qualification of any of the Exchange
Securities or Transfer Restricted Securities) and compliance with the rules
of the NASD, (iii) all
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applicable expenses incurred by the Company in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing any other documents relating to the
performance of and compliance with this Agreement, (iv) the reasonable fees
and disbursements of counsel for the Company and of the independent
certified public accountants of the Company, including the expenses of any
"cold comfort" letters required by or incident to such performance or
compliance with this Agreement, (v) the reasonable fees and expenses of the
Trustee, and any exchange agent or custodian, (vi) all fees and expenses
incurred in connection with the listing, if any, of any of the Transfer
Restricted Securities on any securities exchange or exchanges, if the
Company, in its discretion, elects to make any such listing, (vii) all
rating agency fees, if any, and (viii) any reasonable fees and
disbursements of any underwriter customarily required to be paid by the
Company or sellers of securities and the fees and expenses of any special
experts retained by the Company in connection with any Shelf Registration
Statement; but excluding fees of counsel to the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale
or disposition of Transfer Restricted Securities by a Holder.
"Registration Statement" shall mean any registration statement
(including, without limitation, the Exchange Offer Registration Statement
and the Shelf Registration Statement) of the Company which covers any of
the Transfer Restricted Securities 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 to this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company relating to a "shelf" offering in accordance with
Rule 415 of the Securities Act, or any similar rule that may be adopted by
the SEC, pursuant to the provi-
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sions of Section 2(b) hereof which covers all of the Transfer Restricted
Securities, on an appropriate form under the Securities Act, 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.
"TIA" shall have the meaning set forth in Section 3(k) hereof.
"Transfer Restricted Securities" shall mean each Security, each
Exchange Security, if issued, and each Private Exchange Security, if
issued; provided, however, that each Security, Exchange Security or Private
Exchange Security, as the case may be, shall cease to be a Transfer
Restricted Security when (i) with respect to a Security only, such Security
has been exchanged by a person other than a Participating Broker-Dealer in
the Exchange Offer for an Exchange Security which is entitled to be resold
to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Securities Act, (ii) with respect to a
Security only, following the exchange by a Participating Broker-Dealer in
the Exchange Offer of a Security for an Exchange Security, such Exchange
Security is sold to a purchaser who receives from such Participating
Broker-Dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement, as amended or
supplemented, (iii) such Security or Private Exchange Security, as the case
may be, has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement, (iv) such
Security or Private Exchange Security, as the case may be, is distributed
to the public pursuant to Rule 144 under the Securities Act (or any similar
provision then in force, but not Rule 144A under the Securities Act), (v)
such Security is eligible to be sold pursuant to paragraph (k) of Rule 144,
(vi) such Security, Exchange Security or Private Exchange Security, as the
case may be, shall have been otherwise transferred by the holder thereof
and a new security not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent disposition of such new
security shall not require registration or qualification under the
Securities Act or any similar state law then in force, or (vii) such
Security, Exchange Security or Private Exchange Security, as the case may
be, ceases to be outstanding.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. (i) To the extent not prohibited by any applicable
law or applicable policy of the SEC, the Company shall, for the benefit of the
Holders, at the Company's cost, (A) use their reasonable best efforts to prepare
and, as soon as practicable but not
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later than 90 days after the Issue Date, file with the SEC an Exchange Offer
Registration Statement on an appropriate form under the Securities Act covering
the offer by the Company to the Holders to exchange all of the Securities for a
like principal amount of Exchange Securities, (B) use their reasonable best
efforts to cause such Exchange Offer Registration Statement to be declared
effective under the Securities Act by the SEC not later than the date which is
210 days after the Issue Date, (C) use their reasonable best efforts to (x) to
include in the Exchange Registration Statement a prospectus for use in any
resales by any Holder of Exchange Securities that is a broker-dealer and (y) to
keep such Registration Statement effective for a period beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the earlier of
the expiration of the 180th day after the Exchange Offer has been completed or
such time as such broker-dealers no longer own any Transfer Restricted
Securities and (D) use their best efforts to commence the Exchange Offer and, on
or prior to 240 days after the Issue Date, issue Exchange Securities in exchange
for all Securities properly tendered prior thereto in the Exchange Offer. Upon
the effectiveness of the Exchange Offer Registration Statement, the Company
shall promptly, but no later than 5 days after such registration statement has
become effective, commence the Exchange Offer, it being the objective of such
Exchange Offer to enable each Holder eligible and electing to exchange
Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of Rule 405 under the Securities Act
or, if it is an affiliate, that it will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable,
and is not a broker-dealer tendering Transfer Restricted Securities acquired
directly from the Company for its own account, acquired the Exchange Securities
in the ordinary course of such Holder's business and has no arrangements or
understandings with any Person to participate in the Exchange Offer for the
purpose of distributing (within the meaning of the Securities Act) the Exchange
Securities) and to transfer such Exchange Securities from and after their
receipt without any limitations or restrictions on transfer under the Securities
Act and under state securities or blue sky laws.
(ii) In connection with the Exchange Offer, the Company shall:
(A) mail as promptly as practicable 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;
(B) keep the Exchange Offer open for acceptance for a period of
not less than 30 days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period
referred to herein as the "Exchange Period");
(C) utilize the services of the Depositary for the Exchange
Offer;
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(D) permit Holders to withdraw tendered Securities at any time
prior to 5:00 p.m. (New York time) on the last Business Day of the
Exchange Period by sending to the institution specified in the notice,
a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Securities delivered for
exchange, and a statement that such holder is withdrawing his election
to have such Securities exchanged;
(E) notify each Holder that any Securities not tendered will
remain outstanding and continue to accrue interest but will not retain
any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(F) otherwise comply in all material respects with all applicable
laws relating to the Exchange Offer.
(iii) If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having the status of an
unsold allotment in the initial distribution, the Company upon the request
of any Initial Purchaser shall, to the extent not prohibited by any
applicable law or applicable policy of the SEC, simultaneously with the
delivery of the Exchange Securities in the Exchange Offer, issue and
deliver to such Initial Purchaser in exchange (the "Private Exchange") for
the Securities held by such Initial Purchaser, a like principal amount of
debt securities of the Company, issued pursuant to, and entitled to the
benefits of, the Indenture and identical to the Exchange Securities, except
that such securities shall bear appropriate transfer restrictions (the
"Private Exchange Securities").
(iv) The Exchange Securities and the Private Exchange Securities shall
be issued under (A) the Indenture or (B) an indenture identical in all
material respects to the Indenture and which, in either case, has been
qualified under the TIA or is exempt from such qualification and shall
provide that the Exchange Securities (other than the Private Exchange
Securities) shall not be subject to the transfer restrictions set forth in
the Indenture. The Indenture or such indenture shall provide that the
Exchange Securities, the Private Exchange Securities and the Securities
shall vote and consent together on all matters as one class and that none
of the Exchange Securities, the Private Exchange Securities or the
Securities shall have the right to vote or consent as a separate class on
any matter. The Private Exchange Securities shall be of the same series as,
and the Company shall seek to cause the CUSIP Service Bureau to issue the
same CUSIP numbers for the Private Exchange Securities as for the Exchange
Securities issued pursuant to the Exchange Offer. The Company shall not
have any liability hereunder solely as a result of such Private Exchange
Securities not bearing the same CUSIP number as the Exchange Securities.
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(v) The Exchange Offer and the Private Exchange shall not be subject
to any conditions, other than that (A) in the reasonable opinion of counsel
to the Company, the Exchange Offer or Private Exchange, as the case may be,
does not violate applicable law or any applicable policy of the SEC, (B) no
action or proceeding shall have been instituted or threatened in any court
or by any governmental agency which might materially impair the ability of
the Company to proceed with the Exchange Offer or the Private Exchange nor
shall any material adverse development have occurred in any such action or
proceeding with respect to the Company, (C) all governmental approvals
which the Company deems reasonably necessary for the consummation of the
Exchange Offer or Private Exchange shall have been obtained and (D) the due
tendering of Transfer Restricted Securities in accordance with the terms of
the Exchange Offer. As soon as practicable after the close of the Exchange
Offer and/or the Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Securities or portions thereof
properly tendered and not validly withdrawn pursuant to the Exchange
Offer or the Private Exchange; and
(2) deliver, or cause to be delivered, to the Trustee for
cancellation all Securities or portions thereof so accepted for
exchange by the Company, and issue, and cause the Trustee under the
Indenture to promptly authenticate and deliver to each Holder, a new
Exchange Security or Private Exchange Security, as the case may be,
equal in principal amount to the principal amount of the Securities
surrendered by such Holder and accepted for exchange.
(vi) To the extent not prohibited by any law or applicable policy of
the SEC, the Company shall use its reasonable best efforts to complete the
Exchange Offer as provided above, and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable
laws in connection with the Exchange Offer. Each Holder of Securities who
wishes to exchange such Securities for Exchange Securities in the Exchange
Offer will be required to make certain customary representations in
connection therewith, including representations that such Holder is not an
affiliate of the Company within the meaning of Rule 405 under the
Securities Act, or if it is an affiliate, that it will comply with the
registration and prospectus delivery requirements of the Securities Act to
the extent applicable, that it is not a broker-dealer tendering Transfer
Restricted Securities acquired directly from the Company for its own
account, that any Exchange Securities to be received by it will be acquired
in the ordinary course of business and that at the time of the commencement
of the Exchange Offer it has no arrangement or understanding with any
Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities. Each Participating
Broker-Dealer will be required to acknowledge that it will deliver the
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Prospectus included in the Exchange Offer Registration Statement in
connection with the resale of Exchange Securities to the extent it is
subject to the prospectus delivery requirements of the SEC. 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 Securities in the Exchange Offer.
(vii) Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply,
modified as necessary, solely with respect to Transfer Restricted
Securities that are Private Exchange Securities, Exchange Securities held
by Participating Broker-Dealers and Transfer Restricted Securities entitled
to a Shelf Registration pursuant to the first paragraph of Section 2(b)
hereof.
(b) Shelf Registration. (i) In the event that (A) the Company is not
permitted to file the Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
SEC policy, (B) the Exchange Offer is not consummated within 240 days after the
Issue Date or (C) any holder of Securities notifies the Company prior to the
20th day following consummation of the Exchange Offer that (1) due to a change
in applicable law or SEC policy it is not entitled to participate in the
Exchange Offer, (2) due to a change in applicable law or SEC policy it may not
resell the Exchange Securities to be 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 (3) it is a broker-dealer and owns Securities acquired
directly from the Company or an affiliate of the Company or (D) the holders of
the Securities may not resell the Exchange Securities to be acquired by them in
the Exchange Offer to the public without restriction under the Securities Act
and without restriction under applicable blue sky or state securities laws (any
of the events specified in (A)-(D) being a "Shelf Registration Event"), then the
Company shall, at its cost, use its reasonable best efforts to file as promptly
as practicable after the date of such Shelf Registration Event and, in any
event, prior to the later of (1) 90 days after the Issue Date or (2) 90 days (or
30 days in the case of clause (B) of this Section 2(b)) after such filing
obligation arises and use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the SEC on or prior to 90
days from such required filing date. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
pursuant to this Agreement unless and until such Holder furnishes to the Company
in writing such information as the Company may, after conferring with counsel
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, reasonably request for inclusion in any Shelf Registration Statement or
Prospectus included therein. Each Holder as to which any Shelf Registration is
being effected agrees to furnish to the Company all information with respect to
such Holder
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necessary to make any information previously furnished to the Company by such
Holder not materially misleading.
(ii) The Company agrees to use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective until the second
anniversary of the effective date of the Shelf Registration Statement
(subject to extension pursuant to the last paragraph of Section 3 hereof)
or such earlier time as there are no longer any Transfer Restricted
Securities outstanding (the "Effectiveness Period"). The foregoing shall
not apply to actions taken (or contemplated to be taken) by the Company in
good faith and for valid business reasons involving a material undisclosed
event (but not including the avoidance of the Company's obligations
hereunder) (a "Suspension Event"), including, without limitation, the
acquisition or divestiture of assets or the offering or sale of securities,
so long as the Company without delay prepares and furnishes to each of the
Holders of the Transfer Restricted Securities a reasonable number of copies
of the supplemented or amended prospectus contemplated by Section 3(i)
hereof, if the Company would be required pursuant to Section 3(e)(E)
hereof, to notify the Holders of the Transfer Restricted Securities. Any
such period during which the Company is excused from keeping the Shelf
Registration Statement effective and usable for offers and sale of the
Transfer Restricted Securities is referred to as a "Suspension Period";
provided that, such Suspension Period shall not exceed 45 days in any
12-month period (whereafter Additional Interest shall accrue and be
payable); and provided further that the number of days of any actual
Suspension Period shall be added on to the end of the Effectiveness Period
specified above. A Suspension Period shall commence on and include the date
that the Company gives notice that the Shelf Registration Statement is no
longer effective or the prospectus included therein is no longer usable for
offers and sales of Transfer Restricted Securities and shall end on the
earlier to occur of (1) the date on which each seller of Transfer
Restricted Securities covered by the Shelf Registration Statement either
receives the copies of the supplemented or amended prospectus contemplated
by the Section 3(i) hereof or is advised in writing by the Company that the
use of the prospectus may be resumed and (2) the expiration of 45 days in
any 12-month period during which one or more Suspension Periods have been
in effect. The Company further agrees to supplement or make amendments to
the Shelf Registration Statement, as and when required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or
rules and regulations thereunder for shelf registration, and the Company
agrees to furnish to each Holder of Transfer Restricted Securities copies
of any such supplement or amendment prior to its being used or promptly
following its filing with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any registration pursuant to Section 2(a) or 2(b) hereof and the
reasonable fees and ex-
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penses of one counsel, if any, designated in writing by the Majority Holders to
act as counsel for the Holders of the Transfer Restricted Securities in
connection with a Shelf Registration Statement (which counsel shall be
reasonably satisfactory to the Company). Each Holder shall pay all expenses of
its counsel (other than as set forth above), all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Transfer Restricted Securities pursuant to the Shelf Registration
Statement.
(d) Effective Registration Statement. 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 Transfer Restricted
Securities pursuant to an Exchange Offer Registration Statement or Shelf
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 Transfer Restricted
Securities may legally resume. The Company will be deemed not to have used its
reasonable best efforts to cause the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if it voluntarily takes any action that
would result in any such Registration Statement not being declared effective or
in the Holders of Transfer Restricted Securities covered thereby not being able
to exchange or offer and sell such Transfer Restricted Securities during that
period, unless such action is required by applicable law or otherwise permitted
by this Agreement.
(e) Additional Interest. (i) In the event that (A) the applicable
Registration Statement is not filed with the SEC on or prior to the date
specified herein for such filing, (B) the applicable Registration Statement is
not declared effective by the SEC on or prior to the date specified herein for
such effectiveness (the "Effectiveness Target Date"), (C) the Exchange Offer is
required to be consummated hereunder and the Company fails to consummate the
Exchange Offer within 30 business days of the effectiveness date with respect to
the Exchange Offer Registration Statement or (D) the applicable Registration
Statement is filed and declared effective prior to the Effectiveness Target Date
but shall thereafter cease to be effective or usable (other than due to a
Suspension Event) during the periods specified herein without being immediately
succeeded by an additional Registration Statement covering the Transfer
Restricted Securities which has been filed and declared effective (each such
event referred to in clauses (A) through (D), a "Registration Default"), then
the Company shall pay, jointly and severally, liquidated damages to each Holder
of Transfer Restricted Securities as to which such Registration Default relates
("Additional Interest"), with respect to the first 90-day period (or portion
thereof) while a Registration Default or Defaults is continuing immediately
following the occurrence of such Registration Default, in an amount equal to
0.25% per annum of the principal amount of the Securities. The amount of
Additional Interest will in-
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crease by an additional 0.25% per annum of the principal amount of the
Securities for each subsequent 90-day period (or portion thereof) while a
Registration Default or Defaults is continuing until all Registration Defaults
have been cured, up to an aggregate maximum amount of 1.00% per annum of the
principal amount of the Securities. Additional Interest shall be computed based
on the actual number of days elapsed during which any such Registration Default
or Defaults exist. Following the cure of a Registration Default, the accrual of
Additional Interest with respect to such Registration Default will cease.
Additional Interest pursuant to this Section 2(e) shall be the exclusive
monetary remedy available to the Holders of the Securities in respect of any
Registration Default. Additional Interest will not accrue and be payable as set
forth above during any Suspension Period to the extent such Suspension Period
does not exceed 45 days in any 12-month period.
(ii) The Company shall notify the Trustee within five Business Days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). All accrued
Additional Interest shall be paid to the holders entitled thereto, in the
manner provided for the payment of interest in the Indenture and the
Securities, on each interest payment date, as more fully set forth in the
Indenture and the Securities. The amount of Additional Interest will be
determined by multiplying the applicable additional interest rate by the
principal amount of the Securities, as the case may be, multiplied by a
fraction, the numerator of which is the number of days such additional
interest rate was applicable during such period (determined on the basis of
a 360-day year comprised of twelve 30-day months), and the denominator of
which is 360.
(f) Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its 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
would not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company's
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form (i) shall be selected
by the Company, (ii) shall, in the case of a Shelf Reg-
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istration, be available for the sale of the Transfer Restricted Securities
by the selling Holders thereof and (iii) shall comply as to form in all
material respects with the requirements of the applicable form and include
all financial statements required by the SEC to be filed therewith; and use
its reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof. The
Company shall not file any Shelf Registration Statement or related
Prospectus or any amendments or supplements thereto in respect of which the
Holders must provide information for inclusion therein without the Holders
or their counsel being afforded an opportunity to review such documentation
a reasonable time prior to the filing of such document or, with respect to
such information relating to such Holders, if the Majority Holders or such
Participating Broker-Dealer, as the case may be, their counsel or the
managing underwriters, if any, shall reasonably object;
(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
Effectiveness Period or the Applicable Period, as the case may be; and
cause each Prospectus to be supplemented by any required prospectus
supplement and as so supplemented to be filed pursuant to Rule 424 (or any
similar provision then in force) under the Securities Act, and comply in
all material respects with the provisions of the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder
applicable to it with respect to the disposition of all securities covered
by each Registration Statement during the Effectiveness Period or the
Applicable Period, as the case may be, in accordance with the intended
method or methods of distribution by the selling Holders thereof described
in this Agreement (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Transfer Restricted Securities, at least three Business Days prior to
filing, that a Shelf Registration Statement with respect to the Transfer
Restricted Securities is being filed and advising such Holder that the
distribution of Transfer Restricted Securities will be made in accordance
with the method selected by the Majority Holders participating in the Shelf
Registration; (ii) furnish to each Holder of Transfer Restricted
Securities, without charge, as many copies of each Prospectus, and any
amendment or supplement thereto and such other documents as such Holder may
reasonably request, in order to facilitate the disposition of the Transfer
Restricted Securities; and (iii) subject to Section 2(b)(ii) hereof and the
last paragraph of Section 3 hereof, hereby consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of Transfer Restricted Securities in connection with the offering
and sale of the Transfer Restricted Securities covered by such Prospectus
or any amendment or supplement thereto;
-14-
(d) in the case of a Shelf Registration, use its reasonable best
efforts to register or qualify, as may be required by applicable law, the
Transfer Restricted Securities under all applicable state securities or
"blue sky" laws of such jurisdictions by the time the applicable
Registration Statement is declared effective by the SEC as any Holder of
Transfer Restricted Securities covered by a Registration Statement shall
reasonably request in advance of such date of effectiveness, and do any and
all other acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such jurisdiction
of such Transfer Restricted Securities owned by such Holder;
(e) in the case of (i) a Shelf Registration or (ii) Participating
Broker-Dealers who have notified the Company that they will be utilizing
the Prospectus contained in the Exchange Offer Registration Statement as
provided in Section 3(r) hereof, notify each Holder of Transfer Restricted
Securities, or such Participating Broker-Dealers, as the case may be, their
counsel, if any, promptly and confirm such notice in writing (if such
notice was not originally given in writing) (A) when a Registration
Statement has become effective and when any post-effective amendments and
supplements thereto become effective, (B) of any request by the SEC or any
state securities authority for amendments and supplements to a Registration
Statement or Prospectus or for additional information after the
Registration Statement has become effective, (C) 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, (D) if the Company receives any notification
with respect to the suspension of the qualification of the Transfer
Restricted Securities to be sold by any Participating Broker-Dealer for
offer or sale in any jurisdiction or the initiation of any proceeding for
such purpose, (E) of the happening of any event or the failure of any event
to occur or the discovery of any facts or otherwise during the
Effectiveness Period or the Applicable Period, as the case may be, which
makes any statement made in such Registration Statement or Prospectus
untrue in any material respect or which causes such Registration Statement
or Prospectus to omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and (F) the Company's determination that a
post-effective amendment to the Registration Statement would be
appropriate;
(f) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable;
(g) in the case of a Shelf Registration, furnish to each Holder of
Transfer Restricted Securities who so requests, without charge, at least
one conformed copy of each Registration Statement relating to such Shelf
Registration and any post-effective
-15-
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, unless any Transfer
Restricted Securities shall be in book-entry only form, cooperate with the
selling Holders of Transfer Restricted Securities to facilitate the timely
preparation and delivery of certificates not bearing any restrictive
legends representing Securities covered by such Shelf Registration to be
sold and relating to the subsequent transfer of such Securities; and cause
such Securities to be in such denominations (consistent with the provisions
of the Indenture) and registered in such names as the selling Holders may
reasonably request at least three Business Days prior to the closing of any
sale of Transfer Restricted Securities;
(i) in the case of (i) a Shelf Registration or (ii) Participating
Broker-Dealers who have notified the Company that they will be utilizing
the Prospectus contained in the Exchange Offer Registration Statement as
provided in Section 3(r), upon the occurrence of any circumstance
contemplated by Section 3(e)(B), 3(e)(C), 3(e)(D), 3(e)(E) or 3(e)(F)
hereof, 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 (subject to Section
3(a)), as thereafter delivered to the purchasers of the Transfer Restricted
Securities, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and to notify each Holder or Participating
Broker-Dealer, as applicable, to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event;
(j) obtain a CUSIP number for all Exchange Securities or Private
Exchange Securities or Securities, 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 Securities or the Private Exchange
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(k) (i) cause the Indenture or the indenture provided in Section 2(a)
to be qualified under the Trust Indenture Act of 1939, as amended (the
"TIA"), in connection with the registration of the Transfer Restricted
Securities, (ii) cooperate with the Trustee or any trustee under such
indenture and the Holders to effect such changes to the Indenture or such
indenture as may be required for the Indenture or such indenture to be so
qualified in accordance with the terms of the TIA and (iii) execute, and
use reasonable best efforts to cause the Trustee or any trustee under such
indenture to execute, all documents as may be required to effect such
changes, and all other forms and
-16-
documents required to be filed with the SEC to enable the Indenture or such
indenture to be so qualified in a timely manner;
(l) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all such other customary and
appropriate actions as are reasonably requested by the Majority Holders in
order to expedite or facilitate the disposition of such Transfer Restricted
Securities, 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
Holders of such Transfer Restricted Securities and the underwriters (if
any) with respect to the business of the Company and its subsidiaries as
then conducted and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in
each case, as are customarily made by issuers in connection with an
offering of debt securities as contemplated hereby pursuant to any
appropriate agreement or to a registration statement filed on the form
applicable to the Shelf Registration, and confirm the same if and when
requested by the Majority Holders; (ii) obtain opinions of counsel to the
Company in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of at least 35% in aggregate
principal amount of the Transfer Restricted Securities covered by such
Registration Statement, addressed to each selling Holder and the managing
underwriters covering the matters customarily covered in opinions requested
in connection with an offering of debt securities as contemplated hereby
pursuant to any appropriate agreement or to a registration statement filed
on the form applicable to the Shelf Registration; (iii) obtain "cold
comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to the Company and the underwriters (if any) with
copies to each of the selling Holders of Transfer Restricted Securities,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with an
offering of debt securities as contemplated hereby pursuant to any
appropriate agreement or to a registration statement filed on the form
applicable to the Shelf Registration; and (iv) if an underwriting agreement
is entered into, the same shall contain indemnification provisions and
procedures substantially equivalent to those set forth in Section 4 hereof
(or such other provisions and procedures acceptable to the Company and the
Holders of a majority in aggregate principal amount of Transfer Restricted
Securities covered by such Registration Statement and the managing
underwriters) with respect to all parties to be indemnified pursuant to
said Section (including, without limitation, such selling Holders and such
underwriters). The above shall be done at each closing in respect of the
sale of Transfer Restricted Securities, or as and to the extent required
thereunder;
-17-
(m) if (i) a Shelf Registration is filed pursuant to Section 2(b) or
(ii) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, make available for
inspection by each selling Holder of Transfer Restricted Securities and
each such person who would be an "underwriter" as a result of either (A)
the sale by such person of Securities covered by such Shelf Registration
Statement or (B) the sale during the Applicable Period by a Participating
Broker-Dealer of Exchange Securities (provided that a Participating
Broker-Dealer shall not be deemed to be an underwriter solely as a result
of it being required to deliver a prospectus in connection with any resale
of Exchange Securities) and any attorney, accountant or other agent
retained by any such person (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours and upon
reasonable prior notice, all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable
them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and its subsidiaries
to supply all information in each case reasonably requested by any such
Inspector in connection with such Registration Statement. Records which the
Company determines, in good faith, to be confidential and any Records which
they notify the Inspectors are confidential shall not be disclosed by the
Inspectors to any other Person unless (1) the disclosure of such Records is
necessary to avoid or correct a material misstatement or omission in such
Registration Statement, (2) the disclosure is necessary in connection with
any action, suit or proceeding, (3) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or (4) the information in such Records has been made generally
available to the public. Each such Holder and each such Participating
Broker-Dealer will be required to agree in writing that information
obtained by it as a result of such inspections shall be deemed confidential
and shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until such is made generally available
to the public. Each selling Holder of such Transfer Restricted Securities
and each such Participating Broker-Dealer will be required to further agree
in writing that it will, upon learning that disclosure of such Records is
sought under (1) or (2) above, give notice to the Company and allow the
Company and its subsidiaries at their own expense to undertake appropriate
action to prevent disclosure of the Records deemed confidential; provided
that the foregoing inspection and information gathering shall be
coordinated by one counsel designated by and on behalf of the parties
referenced in clauses (A) and (B) of this Section 3(m);
(n) comply with all applicable rules and regulations of the SEC so
long as the provisions of this Agreement are applicable and make generally
available to its security holders earnings statements satisfying the
provisions of Section 11(a) of the Se-
-18-
curities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period is a
fiscal year) (i) commencing at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods;
(o) if an Exchange Offer or a Private Exchange is to be consummated,
upon proper delivery of Securities by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, the
Company shall ▇▇▇▇, or cause to be marked, on such Securities and on the
books of the Trustee, the Note Registrar (as defined in the Indenture) and,
if necessary, the Depositary, delivered by such Holders that such
Securities are being canceled in exchange for the Exchange Securities or
the Private Exchange Securities, as the case may be; but in no event shall
such Securities be marked as paid or otherwise satisfied solely as a result
of being exchanged for Exchange Securities or Private Exchange Securities
in the Exchange Offer or the Private Exchange, as the case may be;
(p) cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement participating in the disposition of
such Transfer Restricted Securities and one counsel acting on behalf of all
such sellers in connection with the filings, if any, required to be made
with the NASD;
(q) use its reasonable best efforts to take all other steps necessary
to effect the registration of the Transfer Restricted Securities covered by
a Registration Statement contemplated hereby; and
(r) in the case of the Exchange Offer Registration Statement (A)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," which section shall be reasonably acceptable to the
Initial Purchasers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with respect to
the potential "underwriter" status of any broker-dealer ("Participating
Broker-Dealer") that holds Transfer Restricted Securities acquired for its
own account as a result of market-making activities or other trading
activities and that will be the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Securities to be received by such
broker-dealer in the Exchange Offer, whether such positions or policies
have been publicly disseminated by the staff of the SEC or such positions
or policies, in the reasonable judgment of the Initial Purchasers,
repre-
-19-
sent the prevailing views of the staff of the SEC, including a statement
that any such Participating Broker-Dealer who receives Exchange Securities
for Transfer Restricted Securities pursuant to the Exchange Offer may be
deemed a statutory underwriter and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Securities, (B) furnish to each Participating Broker-Dealer who
has delivered to the Company the notice referred to in Section 3(e),
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 Participating Broker-Dealer may
reasonably request, (C) subject to the provisions of this Agreement, hereby
consent to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by any
Person subject to the prospectus delivery requirements of the SEC,
including all Participating Broker-Dealers, in connection with the sale or
transfer of the Exchange Securities covered by the Prospectus or any
amendment or supplement thereto, (D) use its reasonable best efforts to
keep the Exchange Offer Registration Statement effective and use its
reasonable best efforts to amend and supplement the Prospectus contained
therein in order to permit such Prospectus to be lawfully delivered by all
Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such Persons must comply with such
requirements in order to resell the Exchange Securities; provided, however,
that such period shall not be required to exceed 180 days (or such longer
period if extended pursuant to the last sentence of Section 3 hereof) (the
"Applicable Period"), and (E) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate
in the Exchange Offer (1) the following provision:
"If the exchange offeree is a broker-dealer holding Securities
acquired for its own account as a result of market-making activities
or other trading activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of
Exchange Securities received in respect of such Securities pursuant to
the Exchange Offer";
and (2) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (1) and by delivering a Prospectus in
connection with the exchange of Transfer Restricted Securities, such
broker-dealer will not be deemed to admit that it is an underwriter within
the meaning of the Securities Act.
The Company may require each seller of Transfer Restricted Securities
as to which any registration is being effected to furnish to the Company such
information regarding such seller and the proposed distribution of such Transfer
Restricted Securities as the Company may from time to time reasonably request in
writing. The Company may exclude from such registration the Transfer Restricted
Securities of any seller who fails to furnish such in-
-20-
formation within a reasonable time (at least 21 calendar days from the date on
which such request is mailed) and shall be under no obligation to compensate any
such seller for any lost income, interest or other opportunity forgone, or any
liability incurred, as a result of the Company's decision to exclude such
seller.
In the case of (i) a Shelf Registration Statement or (ii)
Participating Broker-Dealers who have notified the Company that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in Section 3(r) hereof that are seeking to sell Exchange Securities
and are required to deliver Prospectuses, each Holder agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 3(e)(B), 3(e)(C), 3(e)(D), 3(e)(E) or 3(e)(F) hereof, such
Holder or Participating Broker-Dealer, as the case may be, will forthwith
discontinue disposition of Transfer Restricted Securities or Exchange
Securities, as the case may be, pursuant to a Registration Statement until such
Holder's or Participating Broker-Dealer's, as the case may be, receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(i)
hereof or until it is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense) all
copies in such Holder's or Participating Broker-Dealer's, as the case may be,
possession, other than permanent file copies then in such Holder's or
Participating Broker-Dealer's, as the case may be, possession, of the Prospectus
covering such Transfer Restricted Securities or Exchange Securities, as the case
may be, current at the time of receipt of such notice. If the Company shall give
any such notice to suspend the disposition of Transfer Restricted Securities or
Exchange Securities, as the case may be, pursuant to a Registration Statement,
the Company shall use its reasonable best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement to
the Registration Statement and, in the case of an amendment, have such amendment
declared effective as soon as practicable and shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days in the period from and including the date of the
giving of such notice to and including the date when the Company shall have made
available to the Holders or Participating Broker-Dealers, as the case may be,
(A) copies of the supplemented or amended Prospectus necessary to resume such
dispositions or (B) the Advice.
4. Indemnification and Contribution. (a) The Company shall indemnify
and hold harmless the Initial Purchasers, each Holder of Transfer Restricted
Securities in the Registration Statement, each Participating Broker-Dealer, each
underwriter who participates in an offering of Transfer Restricted Securities,
their respective affiliates, and each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, as follows:
-21-
(i) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto), covering
Transfer Restricted Securities or Exchange Securities, 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;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, 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 4(d) below) any such settlement is effected with the prior written
consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including
reasonable fees and disbursements of one counsel (in addition to any local
counsel) chosen as provided in Section 4(c) below) reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any court or 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 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an 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 or on behalf of
the Initial Purchasers, such Holder, such Participating Broker-Dealer or any
underwriter with respect to such Initial Purchasers, Holder, Participating
Broker-Dealer or underwriter, as the case may be, expressly for use in the
Registration Statement (or any amendment or supplement thereto) or any
Prospectus (or any amendment or supplement thereto); provided, further, that the
foregoing indemnity with respect to a preliminary prospectus in any Shelf
Registration Statement shall not inure to the benefit of any person or entity
(or to the benefit of any person controlling such person or entity) from whom
the person asserting any such losses, claims, damages or liabilities purchased
Transfer Restricted Securities if (i) such untrue statement or omission or
alleged untrue statement or omission made in
-22-
such preliminary prospectus was eliminated or remedied in the final Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto to such Holder prior to confirmation for the sale of such
Transfer Restricted Securities to such person by such Holder) and (ii) a copy of
the final Prospectus (as so amended and supplemented) was not furnished to such
person at or prior to the written confirmation of the sale of such Transfer
Restricted Securities to such person, unless such failure to deliver was a
result of non-compliance by the Company with Section 3(c).
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Initial Purchasers and the other selling Holders
and each of their respective officers and directors and each Person, if any, who
controls the Company, the Initial Purchasers, any underwriter or any other
selling Holder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment or supplement thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such selling Holder with respect to
such Holder expressly for use in the Registration Statement (or any supplement
thereto), or any such Prospectus (or any amendment thereto); provided, however,
that, in the case of the Shelf Registration Statement, 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 Transfer Restricted Securities pursuant to the
Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, 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. In the case of parties indemnified
pursuant to Section 4(a) above, counsel to all the indemnified parties shall be
selected by the Initial Purchasers, and, in the case of parties indemnified
pursuant to Section 4(b) above, counsel to all the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action and, to the extent that the
indemnifying party may wish, assume the defense of any such action, with counsel
reasonably satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such action, the indemnifying party will not be liable to such
indemnified party under this Section 4 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense of
such action other than reasonable costs of investigation; provided, however,
that counsel to the indemnifying party shall not (except with the consent of the
indemnified
-23-
party) also be counsel to the indemnified party. 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 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 is or could be sought under
this Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes a
full and 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. No indemnified party shall,
without the prior written consent of the indemnifying party (which consent shall
not be unreasonably withheld), settle or compromise or consent to the entry of
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 4.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel in accordance with Section 4(a)(iii), then such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 4(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 60 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 45 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) (i) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company and the Holders,
as applicable, shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company and the Holders; provided, however, that 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 that was
not guilty of such fraudulent misrepresentation. As between the Company and the
Holders, such parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect the relative
fault of the Company, on the one hand, and the Holders of Transfer Restricted
Securities, the Participating
-24-
Broker-Dealer or Initial Purchasers, as the case may be, 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.
(ii) The relative fault of the Company, on the one hand, and the
Holders of Transfer Restricted Securities, the Participating Broker-Dealer
or the Initial Purchasers, as the case may be, 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
Company, or by the Holder of Transfer Restricted Securities, the
Participating Broker-Dealer or the Initial Purchasers, as the case may be,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(iii) Notwithstanding the provisions of this Section 4, no Holder
shall be required to contribute any amount in excess of the amount by which
the total price at which the Securities sold by it under the Shelf
Registration Statement exceeds the amount of any damages which such Holder
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
(iv) The Company and the Holders of the Transfer Restricted Securities
and the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 4 were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 4.
(v) For purposes of this Section 4, each affiliate of any Person, if
any, who controls a Holder of Transfer Restricted Securities, the Initial
Purchasers or a Participating Broker-Dealer within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the
same rights to contribution as such other Person, and each director of the
Company (including any person who, with his consent, is named in any
Registration Statement as about to become a director of the Company) each
affiliate of the Company, each executive officer of the Company who signed
the Registration Statement, and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as the
Company.
5. Participation in Underwritten Registrations. No Holder may
participate in any underwritten registration hereunder unless such Holder (i)
agrees to sell such Holder's Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agree-
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ments and other documents reasonably required under the terms of such
underwriting arrangements. The Company shall be under no obligation to
compensate any Holder for lost income, interest or other opportunity foregone,
or other liability incurred, as a result of the Company's decision to exclude
such Holder from any underwritten registration if such Holder has not complied
with the provisions of this Section 5 in all material respects.
6. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell the securities covered by such Shelf Registration in an underwritten
offering. In any such underwritten offering, the managing underwriter or
underwriters and manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that such underwriters and managers must be reasonably
satisfactory to the Company.
7. Miscellaneous.
(a) Reporting Requirement. So long as any of the Transfer Restricted
Securities are outstanding, the Company will comply with the provisions of
Section 2.6 of the Indenture.
(b) No Inconsistent Agreements. The rights granted to the Holders
hereunder do not, and will not for the term of this Agreement in any way
conflict with and are not, and will not during the term of this Agreement be
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any other agreements entered into by the
Company.
(c) Amendments and Waivers. The provisions of this Agreement,
including 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, otherwise than with the prior written consent of the Company
and the Majority Holders affected by such amendment, modification,
supplementation or waiver; provided, however, that no amendment, modification,
or supplement or waiver or consent to the departure with respect to the
provisions of Section 4 hereof shall be effective as against any Holder of
Transfer Restricted Securities or the Company unless consented to in writing by
such Holder of Transfer Restricted Securities or the Company, as the case may
be.
(d) Notices. (i) All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, facsimile, or any courier guaranteeing overnight delivery (A)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
7(d), which address initially is, with respect to the Initial Purchasers, the
address set forth in the Purchase Agreement; and (B) if to the Company,
initially at the
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Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 7(d).
(ii) 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 receipt is confirmed, if sent by facsimile; and on the next
Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
(iii) 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 the Company
and the Initial Purchasers, including, without limitation and without the need
for an express assignment, subsequent Holders. If any transferee of any Holder
shall acquire Transfer Restricted Securities, in any manner, whether by
operation of law or otherwise, such Transfer Restricted Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Transfer Restricted Securities, such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiary. Each Holder shall be a third party
beneficiary of the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(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, WITHOUT GIVING EFFECT TO
ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. All specified times of day refer
to New York City time.
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(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.
(k) Securities Held by the Company or Any of its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities held
by the Company or any of its affiliates (as such term is defined in Rule 405
under the Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRIAD HOSPITALS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President & Treasurer
Confirmed and accepted as of the date first written above:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
BANC OF AMERICA SECURITIES LLC
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: /s/ M. ▇▇▇▇ ▇▇▇▇
-------------------------------
Name: M. ▇▇▇▇ ▇▇▇▇
Title: Vice-President
By: Banc of America Securities LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: MD
For themselves and as Representatives of the other Initial Purchasers
named in Schedule A hereto.
SCHEDULE A
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Banc of America Securities LLC
Citigroup Global Markets Inc.
Credit Suisse First Boston LLC
▇▇▇▇▇▇▇, Sachs & Co.
Credit Lyonnais Securities (USA) Inc.
Fleet Securities, Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Scotia Capital (USA) Inc.
SunTrust Capital Markets, Inc.
Wachovia Capital Markets, LLC
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
BOSC, Inc.
▇▇▇▇▇▇▇▇ Inc.