EXHIBIT 4.2
EXECUTION COPY
$400,000,000
King Pharmaceuticals, Inc.
1 1/4% Convertible Senior Notes Due 2026
Registration Rights Agreement
March 29, 2006
Citigroup Global Markets Inc.
As Representative of the Initial Purchasers
c/o Citigroup Global Markets Inc.
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Ladies and Gentlemen:
This Registration Rights Agreement (the "Agreement") is made and entered
into as of March 29, 2006, by and among King Pharmaceuticals, Inc., a Tennessee
corporation (the "Company"), the Guarantors (as defined below) and Citigroup
Global Markets Inc. as representative of the several parties named in Schedule I
(the "Initial Purchasers") to that certain Purchase Agreement, dated as of March
24, 2006 (the "Purchase Agreement") among the Company, the Guarantors and the
Initial Purchasers.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Company and the Guarantors agree with the Initial
Purchasers, for the benefit of the holders (including the Initial Purchasers) of
the Notes, the Guarantees and the Shares (each as defined below) (collectively,
the "Holders"), as follows:
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following meanings:
(a) "Agreement" means this Registration Rights Agreement, as the same
may be amended from time to time pursuant to the terms hereof.
(b) "Closing Date" means the date on which any Notes are initially
issued.
(c) "Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(d) "Company" has the meaning specified in the first paragraph of this
Agreement.
(e) "Deferral Notice" has the meaning assigned thereto in Section
3(b).
(f) "Deferral Period" has the meaning assigned thereto in Section
3(b).
(g) "Effective Period" has the meaning assigned thereto in Section
2(d).
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(i) "Guarantors" means all of the domestic subsidiaries of the Company
that are signatories hereto and all of the direct and indirect future
domestic subsidiaries of the Company that execute a supplemental indenture
in order to become Guarantors, as required by and in accordance with the
terms of the Indenture.
(j) "Guarantees" means the full and unconditional unsecured guarantees
by the Guarantors of the Notes in accordance with the terms of the
Indenture.
(k) "Holder" means each holder, from time to time, of Registrable
Securities (including the Initial Purchasers).
(l) "Indenture" means the Indenture dated as of March 29, 2006 among
the Company, the Guarantors and The Bank of New York, as Trustee, pursuant
to which the Notes are being issued.
(m) "Initial Purchasers" has the meaning specified in the first
paragraph of this Agreement.
(n) "Liquidated Damages" has the meaning assigned thereto in Section
2(g).
(o) "Liquidated Damages Payment Date" has the meaning assigned thereto
in Section 2(g).
(p) "Material Event" has the meaning assigned thereto in Section
3(a)(iv).
(q) "Majority Holders" shall mean, on any date, holders of the
majority of the Shares constituting Registrable Securities; for the
purposes of this definition, Holders of Notes constituting Registrable
Securities shall be deemed to be the Holders of the number of Shares into
which such Notes are or would be convertible as of such date.
(r) "NASD" shall mean the National Association of Securities Dealers,
Inc.
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(s) "NASD Rules" shall mean the Conduct Rules and the By-Laws of the
NASD.
(t) "Notes" mean the 1 1/4% Convertible Senior Notes Due 2026, to be
issued under the Indenture and sold by the Company to the Initial
Purchasers.
(u) "Notice and Questionnaire" means a written notice delivered to the
Company containing substantially the information called for by the Form of
Selling Securityholder Notice and Questionnaire attached as Annex A to the
Offering Memorandum.
(v) "Notice Holder" means, on any date, any Holder that has delivered
a Notice and Questionnaire to the Company on or prior to such date.
(w) "Offering Memorandum" means the Offering Memorandum dated March
24, 2006 relating to the offer and sale of the Securities.
(x) "Person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(y) "Prospectus" means the prospectus included in any Shelf
Registration Statement, as amended or supplemented by any amendment or
prospectus supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be incorporated
by reference in such Prospectus.
(z) "Purchase Agreement" has the meaning specified in the first
paragraph of this Agreement.
(aa) "Registrable Securities" means
(a) the Notes, including the Guarantees, until the earliest of
(i) their effective registration under the Securities Act
and the resale of all such Notes in accordance with the
Shelf Registration Statement, (ii) the expiration of the
holding period applicable to such Notes under Rule 144(k)
under the Securities Act or any successor provision or
similar provisions then in effect or (iii) the date on which
all such Notes have been converted or otherwise cease to be
outstanding; and
(b) the Shares, if any, issuable upon conversion of the Notes,
until the earliest of (i) their effective registration under
the Securities Act and the resale of all such Shares in
accordance with the Shelf Registration Statement, (ii) the
expiration of the holding period applicable to such Shares
under Rule 144(k), (iii) the date on which all such Shares
are freely transferable by persons who are not Affiliates of
the Company without registration under the
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Securities Act, or (iv) the date on which all such Shares
cease to be outstanding.
(bb) "Registration Default" means
(i) with respect to any Registrable Securities that are Notes or
Guarantees:
(A) (i) the Company and the Guarantors shall not have filed a Shelf
Registration Statement providing for the registration of, and the sale on a
continuous or delayed basis by the Holders of, such Registrable Securities with
the Commission within 90 days following the Closing Date (which shall be, if the
Company is then a WKSI, an automatic Shelf Registration Statement); (ii) the
Shelf Registration Statement shall not have been declared effective with respect
to such Registrable Securities by the Commission prior to or on the 120th day
following the Closing Date;
(B) the Company has failed to perform its obligations set forth in
Section 2(f) in connection with the resale of such Registrable Securities; or
(C) if the Shelf Registration Statement has been declared effective
with respect to such Registrable Securities but such Shelf Registration
Statement ceases to be effective, or is not usable, for such Registrable
Securities at any time during the Effective Period for such Registrable
Securities, and (i) the Company and the Guarantors shall not have cured the
Shelf Registration Statement within 10 business days by a post-effective
amendment, prospectus supplement or report filed under the Exchange Act (other
than in the case of a Deferral Period described in Section 3(b)), (ii) if
applicable, the Company and the Guarantors shall not have terminated a Deferral
Period by the 45th day of such Deferral Period or (iii) the aggregate duration
of Deferral Periods in any period shall have exceeded the number of days
permitted in respect of such period pursuant to Section 3(b) hereof.
(ii) with respect to any Registrable Securities that are Shares:
(A) (i) the Company and the Guarantors shall not have filed a Shelf
Registration Statement providing for the registration of, and the sale on a
continuous or delayed basis by the Holders of, such Registrable Securities with
the Commission within 90 days following the Closing Date (which shall be, if the
Company is then a WKSI, an automatic Shelf Registration Statement); (ii) the
Shelf Registration Statement shall not have been declared effective with respect
to such Registrable Securities by the Commission prior to or on the 120th day
following the Closing Date;
(B) the Company or any Guarantor shall have failed to perform its
obligations set forth in Section 2(f) in connection with the resale of such
Registrable Securities; or
(C) if the Shelf Registration Statement has been declared effective
with respect to such Registrable Securities but such Shelf Registration
Statement ceases to be effective, or is not usable, for such Registrable
Securities at any time during the Effective Period for such Registrable
Securities, and (i) the Company and the Guarantors shall not have cured the
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Shelf Registration Statement within 10 business days by a post-effective
amendment, prospectus supplement or report filed under the Exchange Act (other
than in the case of a Deferral Period described in Section 3(b)), (ii) if
applicable, the Company and the Guarantors shall not have terminated a Deferral
Period by the 45th day of such Deferral Period or (iii) the aggregate duration
of Deferral Periods in any period shall have exceeded the number of days
permitted in respect of such period pursuant to Section 3(b) hereof.
(cc) "Registration Expenses" has the meaning assigned thereto in
Section 5.
(dd) "Rule 144," Rule 144(k)," "Rule 144A," "Rule 405" and "Rule 415"
mean, in each case, such rule as promulgated under the Securities Act.
(ee) "Securities" means, collectively, the Notes, the Guarantees and
the Shares.
(ff) "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
(gg) "Shares" means the shares of common stock of the Company, no par
value into which the Notes may be convertible or that have been issued upon
any conversion from Notes into common stock of the Company, all pursuant to
the Indenture.
(hh) "Shelf Registration Statement" means the shelf registration
statement referred to in Section 2(a) and 2(b), as amended or supplemented
by any amendment or supplement, including post-effective amendments, and
all materials incorporated by reference or explicitly deemed to be
incorporated by reference in such Shelf Registration Statement.
(ii) "Special Counsel" shall have the meaning assigned thereto in
Section 5.
(jj) "Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to time.
(kk) "Trustee" shall have the meaning assigned such term in the
Indenture.
(ll) "Well-known seasoned issuer" or "WKSI" shall have the meaning
assigned such term in Rule 405 of the Securities Act.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
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2. Registration Under the Securities Act.
(a) The Company and the Guarantors agree to file under the Securities
Act as promptly as practicable but in any event within 90 days after the
Closing Date, a shelf registration statement (which shall be an automatic
shelf registration statement if the Company is then a WKSI) providing for
the registration of, and the sale on a continuous or delayed basis by the
Holders of, all of the Registrable Securities, and, if necessary by the
Company, of delivery to the Holders of all of the Shares, pursuant to Rule
415 of the Securities Act or any similar rule that may be adopted by the
Commission.
(b) If the Company is not a WKSI on the 90th day after the Closing
Date, the Company and the Guarantors agree to use their reasonable best
efforts to cause the Shelf Registration Statement to become or be declared
effective no later than 120 days after the Closing Date.
(c) The Company and the Guarantors agree to name as a selling security
holder in the Shelf Registration Statement, at the time of its
effectiveness, each Notice Holder from which the Company has received a
Notice and Questionnaire, together with any other information the Company
may reasonably request from such Notice Holder on or prior to the tenth day
before effectiveness of such Shelf Registration Statement.
(d) The Company and the Guarantors agree to use their reasonable best
efforts to keep such Shelf Registration Statement continuously effective
until each of the Registrable Securities ceases to be a Registrable
Security (the "Effective Period"). None of the Company's or any Guarantor's
securityholders (other than Holders of Registrable Securities) shall have
the right to include any of the Company's securities in the Shelf
Registration Statement.
(e) The Company and each Guarantor further agrees that they shall
cause the Shelf Registration Statement and the related Prospectus and any
amendment or supplement thereto, as of the effective date of the Shelf
Registration Statement or such amendment or supplement, (i) to comply in
all material respects with the applicable requirements of the Securities
Act; and (ii) not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading, and
the Company and each Guarantor agrees to furnish to the Holders of the
Registrable Securities copies of any supplement or amendment prior to its
being used or promptly following its filing with the Commission; provided,
however, that the Company and each Guarantor shall have no obligation to
deliver to Holders of Registrable Securities copies of any amendment
consisting exclusively of an Exchange Act report or other Exchange Act
filing filed electronically with the Commission or otherwise publicly
available on the Company's website. If the Shelf Registration Statement, as
amended or supplemented from time to time, ceases to be effective for any
reason at any time during the Effective Period (other than because all
Registrable Securities registered thereunder shall have been sold pursuant
thereto or shall have otherwise ceased to be Registrable Securities), the
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Company and each Guarantor shall use their reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness
thereof.
(f) Each Holder of Registrable Securities agrees that if such Holder
wishes to sell Registrable Securities pursuant to the Shelf Registration
Statement and related Prospectus, it will do so only in accordance with
this Section 2(f) and Section 3(b). From and after the date the Shelf
Registration Statement is declared effective, the Company and each
Guarantor shall, as promptly as is practicable after the date a Notice and
Questionnaire is delivered by a Holder, together with any other information
the Company may reasonably request from such Holder, and in any event
within fifteen (15) business days after such date,
(i) if required by applicable law, file with the Commission a
post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named
as a selling security holder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Registrable Securities in
accordance with applicable law and, if the Company and each Guarantor
shall file a post-effective amendment to the Shelf Registration
Statement, use their reasonable best efforts to cause such
post-effective amendment to be declared effective under the Securities
Act as promptly as is practicable;
(ii) provide such Holder copies of any documents filed pursuant
to Section 2(f)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(f)(i);
provided, that if such Notice and Questionnaire is delivered during a
Deferral Period, the Company shall so inform the Holder delivering such
Notice and Questionnaire and shall take the actions set forth in clauses
(i), (ii) and (iii) above upon expiration of the Deferral Period in
accordance with Section 3(b). Notwithstanding anything contained herein to
the contrary, the Company shall be under no obligation to name any Holder
that is not a Notice Holder as a selling securityholder in any Shelf
Registration Statement or related Prospectus; provided, however, that any
Holder that becomes a Notice Holder pursuant to the provisions of this
Section 2(f) (whether or not such Holder was a Notice Holder at the time
the Shelf Registration Statement was declared effective) shall be named as
a selling securityholder in the Shelf Registration Statement or related
Prospectus in accordance with the requirements of this Section 2(f).
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(g) If a Registration Default shall occur, then liquidated damages
("Liquidated Damages") shall become payable by the Company and each
Guarantor to Holders in respect of the Notes as follows:
(i) in the case of a Registration Default with respect to the
Notes or the Guarantees, Liquidated Damages shall accrue on the
principal amount of Notes that are Registrable Securities at a rate of
0.25% per annum for the first 90 days following the occurrence of such
Registration Default and at a rate of 0.50% per annum thereafter, to
but excluding the earlier of (1) the day on which such Registration
Default has been cured and (2) the date there are no longer any Notes
that are Registrable Securities;
(ii) in the case of a Registration Default with respect to the
Shares, no Liquidated Damages shall accrue on any Shares and, in lieu
thereof, the Company shall increase the Conversion Rate (as defined in
the Indenture) by 3% for each $1,000 principal amount of Notes
converted at a time when such Registration Default has occurred and is
continuing;
provided, however, that the Liquidated Damages rate on the Notes shall not
exceed in the aggregate 0.5% per annum and shall not be payable under more
than one clause above for any given period of time, except that if
Liquidated Damages would be payable because of more than one Registration
Default, but at a rate of 0.25% per annum under one Registration Default
and at a rate of 0.5% per annum under the other, then the Liquidated
Damages rate shall be the higher rate of 0.5% per annum.
Liquidated Damages on the Notes, if any, will be payable in cash
on April 1 and October 1 of each year (the "Liquidated Damages Payment
Date") to holders of record of outstanding Notes that are Registrable
Securities at the close of business on March 15 or September 15, as the
case may be, immediately preceding the relevant interest payment date.
Following the cure of all Registration Defaults requiring the payment of
Liquidated Damages to the Holders of Notes that are Registrable Securities
pursuant to this Section, the accrual of Liquidated Damages will cease
(without in any way limiting the effect of any subsequent Registration
Default requiring the payment of Liquidated Damages). Following the cure of
all Registration Defaults requiring an increase of the Conversion Rate for
Notes converted, such increase in the Conversion Rate will cease (without
in any way limiting the effect of any subsequent Registration Default
requiring an increase in the Conversion Rate).
The Company and each Guarantor shall notify the Trustee
immediately upon the happening of each and every Registration Default. The
Trustee shall be entitled, on behalf of Holders of Securities, to seek any
available remedy for the enforcement of this Agreement, including for the
payment of any Liquidated Damages. Notwithstanding the foregoing, the
parties agree that the sole monetary damages payable for a violation of the
terms of this Agreement with respect to which additional monetary amounts
are expressly provided shall be as set forth in this Section 2(g).
Notwithstanding the foregoing, the parties agree that the sole remedy for a
violation of the terms of this
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Agreement with respect to which an increased Conversion Rate is expressly
provided shall be as set forth in this Section 2(g). Nothing shall preclude
a Notice Holder or Holder of Registrable Securities from pursuing or
obtaining specific performance or other equitable relief with respect to
this Agreement.
3. Registration Procedures.
The following provisions shall apply to the Shelf Registration Statement
filed pursuant to Section 2:
(a) The Company and each Guarantor shall:
(i) prepare and file with the Commission a registration statement
with respect to the shelf registration on any form which may be
utilized by the Company and which shall permit the disposition of the
Registrable Securities in accordance with the intended method or
methods thereof, as specified in writing by the Holders of the
Registrable Securities, and use its reasonable best efforts to cause
such registration statement to become effective in accordance with
Section 2(a) or 2(b) above;
(ii) before filing any Shelf Registration Statement or Prospectus
or any amendments or supplements thereto with the Commission, furnish
to the Special Counsel copies of all such documents proposed to be
filed and use reasonable best efforts to reflect in each such document
when so filed with the Commission such comments as the Special Counsel
reasonably shall propose within three (3) business days of the
delivery of such copies to the Special Counsel; provided, however,
that the Company and each Guarantor shall have no obligation hereunder
with respect to any amendment consisting exclusively of an Exchange
Act report or other Exchange Act filing filed electronically with the
Commission or otherwise publicly available on the Company's website or
with respect to any amendment or supplement filed solely pursuant to
Section 2(f)(i) hereof;
(iii) use its reasonable best efforts to prepare and file with
the Commission such amendments and post-effective amendments to the
Shelf Registration Statement and file with the Commission any other
required document as may be necessary to keep such Shelf Registration
Statement continuously effective until the expiration of the Effective
Period; cause the related Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and comply with the provisions of the Securities
Act applicable to it with respect to the disposition of all Securities
covered by such Shelf Registration Statement during the Effective
Period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Shelf Registration Statement as so
amended or such Prospectus as so supplemented;
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(iv) promptly notify the Notice Holders of Registrable Securities
(A) when such Shelf Registration Statement or the Prospectus included
therein or any amendment or supplement to the Prospectus or
post-effective amendment has been filed with the Commission, and, with
respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any request,
following the effectiveness of the Shelf Registration Statement, by
the Commission or any other Federal or state governmental authority
for amendments or supplements to the Shelf Registration Statement or
related Prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of
such Shelf Registration Statement or the initiation or written threat
of any proceedings for that purpose, (D) of the receipt by the Company
or any Guarantor of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or written threat of any proceeding for
such purpose, (E) of the occurrence of (but not the nature of or
details concerning) any event or the existence of any fact (a
"Material Event") as a result of which any Shelf Registration
Statement shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or any
Prospectus shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided,
however, that no notice by the Company shall be required pursuant to
this clause (E) in the event that the Company either promptly files a
prospectus supplement to update the Prospectus or a Form 8-K or other
appropriate Exchange Act report that is incorporated by reference into
the Shelf Registration Statement, which, in either case, contains the
requisite information with respect to such Material Event that results
in such Shelf Registration Statement no longer containing any untrue
statement of material fact or omitting to state a material fact
necessary to make the statements contained therein not misleading),
(F) of the determination by the Company that a post-effective
amendment to the Shelf Registration Statement will be filed with the
Commission, which notice may, at the discretion of the Company (or as
required pursuant to Section 3(b)), state that it constitutes a
Deferral Notice, in which event the provisions of Section 3(b) shall
apply or (G) at any time when a Prospectus is required to be delivered
under the Securities Act, that the Shelf Registration Statement,
Prospectus, Prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder;
(v) prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, use its reasonable best
efforts to register or qualify, or cooperate with the Notice Holders
of Securities included therein and their respective counsel in
connection with the registration or qualification of,
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such Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as any such Notice Holders 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 Statement; prior to any
public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use its reasonable best efforts to keep each
such registration or qualification (or exemption therefrom) effective
during the Effective Period in connection with such Notice Holder's
offer and sale of Registrable Securities pursuant to such registration
or qualification (or exemption therefrom) and do any and all other
acts or things necessary or advisable to enable the disposition in
such jurisdictions of such Registrable Securities in the manner set
forth in the Shelf Registration Statement and the related Prospectus;
provided that the Company will not be required to qualify generally to
do business in any jurisdiction where it is not then so qualified or
to take any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is not then
so subject;
(vi) use its reasonable best efforts to prevent the issuance of,
and if issued, to obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement or any
post-effective amendment thereto, and to lift any suspension of the
qualification of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in each case
at the earliest practicable date;
(vii) upon reasonable notice, for a reasonable period prior to
the filing of the Shelf Registration Statement, and throughout the
Effective Period, (i) make reasonably available for inspection by a
representative of, and Special Counsel acting for, Majority Holders of
the Securities being sold and any underwriter (and its counsel)
participating in any disposition of Securities pursuant to such Shelf
Registration Statement, all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries and (ii) use reasonable best efforts to have their
officers, directors, employees, accountants and counsel supply all
relevant information reasonably requested by such representative,
Special Counsel or any such underwriter in connection with such Shelf
Registration Statement; provided, however, that the Company shall not
have any obligation to deliver information to any such representative
or any such underwriter pursuant to this Section 3(a)(vii) unless such
representative or any such underwriter shall have executed and
delivered a confidentiality agreement in a form reasonably acceptable
to the Company relating to such information;
(viii) if requested by Majority Holders of the Securities being
sold in an underwriting, its Special Counsel or the managing
underwriters (if any) in connection with such Shelf Registration
Statement, use its reasonable best efforts to cause (i) its counsel to
deliver an opinion relating to the Shelf Registration Statement and
the Securities in customary form, (ii) its officers to execute and
deliver all customary documents and certificates requested by the
Majority
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Holders of the Securities being sold, their Special Counsel or the
managing underwriters (if any) and (iii) its independent public
accountants to provide a comfort letter or letters in customary form,
subject to receipt of appropriate documentation as contemplated, and
only if permitted, by Statement of Auditing Standards No. 72;
(ix) if reasonably requested by the Initial Purchasers or any
Notice Holder, promptly incorporate in a prospectus supplement or
post-effective amendment to the Shelf Registration Statement such
information as the Initial Purchasers or such Notice Holder shall, on
the basis of a written opinion of nationally-recognized counsel
experienced in such matters, determine to be required to be included
therein by applicable law and make any required filings of such
prospectus supplement or such post-effective amendment; provided, that
the Company shall not be required to take any actions under this
Section 3(a)(ix) that are not, in the reasonable opinion of counsel
for the Company, in compliance with applicable law;
(x) promptly furnish to each Notice Holder and the Initial
Purchasers, upon their request and without charge, at least one (1)
conformed copy of the Shelf Registration Statement and any amendments
thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits; provided, however, that the Company shall
have no obligation to deliver to Notice Holders or the Initial
Purchasers a copy of any amendment consisting exclusively of an
Exchange Act report or other Exchange Act filing otherwise publicly
available on the Company's website;
(xi) during the Effective Period, deliver to each Notice Holder
in connection with any sale of Registrable Securities pursuant to the
Shelf Registration Statement, without charge, as many copies of the
Prospectus relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as
such Notice Holder may reasonably request; and the Company hereby
consents (except during such periods that a Deferral Notice is
outstanding and has not been revoked) to the use of such Prospectus or
each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto in
the manner set forth therein; and
(xii) cooperate with the Notice Holders of Securities to
facilitate the timely preparation and delivery of certificates
representing Securities to be sold pursuant to the Shelf Registration
Statement free of any restrictive legends and in such denominations
and registered in such names as the Holders thereof may request in
writing at least two business days prior to sales of Securities
pursuant to such Shelf Registration Statement.
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(b) Upon (A) the issuance by the Commission of a stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section
8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any Material Event as a result of which the Shelf Registration
Statement shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, or any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or (C) the occurrence or existence of any corporate development
that, in the discretion of the Company, makes it appropriate to suspend the
availability of the Shelf Registration Statement and the related
Prospectus, the Company will (i) in the case of clause (B) above, subject
to the fifth sentence of this provision, as promptly as practicable prepare
and file a post-effective amendment to such Shelf Registration Statement or
a supplement to the related Prospectus or any document incorporated therein
by reference or file any other required document that would be incorporated
by reference into such Shelf Registration Statement and Prospectus so that
such Shelf Registration Statement does not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
such Prospectus does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, and, in the
case of a post-effective amendment to the Shelf Registration Statement,
subject to the fifth sentence of this provision, use reasonable best
efforts to cause it to be declared effective as promptly as is practicable,
and (ii) give notice to the Notice Holders that the availability of the
Shelf Registration Statement is suspended (a "Deferral Notice"). The
Company and the Guarantors need not specify the nature of the event giving
rise to a suspension in any Deferral Notice. Each Holder agrees to hold any
such Deferral Notice in confidence. Upon receipt of any Deferral Notice,
each Notice Holder agrees not to sell any Registrable Securities pursuant
to the Shelf Registration Statement until such Notice Holder's receipt of
copies of the supplemented or amended Prospectus provided for in clause (i)
above, or until it is advised in writing by the Company that the Prospectus
may be used, and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in such
Prospectus. The Company and each Guarantor will use its reasonable best
efforts to ensure that the use of the Prospectus may be resumed (x) in the
case of clause (A) above, as promptly as practicable, (y) in the case of
clause (B) above, as soon as, in the sole judgment of the Company, public
disclosure of such Material Event would not be prejudicial to or contrary
to the interests of the Company or, if necessary to avoid unreasonable
burden or expense, as soon as practicable thereafter and (z) in the case of
clause (C) above, as soon as, in the discretion of the Company, such
suspension is no longer appropriate; provided that the period during which
the availability of the Shelf Registration Statement and any Prospectus is
suspended (the "Deferral Period"), without the Company incurring any
obligation to pay
13
Liquidated Damages pursuant to Section 2(g), shall not exceed an aggregate
of forty-five (45) days in any 90-day period or ninety (90) days in any
360-day period.
(c) Each Holder of Registrable Securities agrees that upon receipt of
any Deferral Notice from the Company, such Holder shall forthwith
discontinue (and cause any placement or sales agent or underwriters acting
on their behalf to discontinue) the disposition of Registrable Securities
pursuant to the registration statement applicable to such Registrable
Securities until such Holder (i) shall have received copies of such amended
or supplemented Prospectus and, if so directed by the Company, such Holder
shall deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, then in such Holder's possession of the
Prospectus covering such Registrable Securities at the time of receipt of
such notice or (ii) shall have received notice from the Company that the
disposition of Registrable Securities pursuant to the Shelf Registration
may continue.
(d) The Company may require each Holder of Registrable Securities as
to which any registration pursuant to Section 2 is being effected to
furnish to the Company such information regarding such Holder and such
Holder's intended method of distribution of such Registrable Securities as
the Company may from time to time reasonably request in writing, but only
to the extent that such information is required in order to comply with the
Securities Act. Each such Holder agrees to notify the Company as promptly
as practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company or of the occurrence of any event
in either case as a result of which any Prospectus relating to such
registration contains or would contain an untrue statement of a material
fact regarding such Holder or such Holder's intended method of disposition
of such Registrable Securities or omits to state any material fact
regarding such Holder or such Holder's intended method of disposition of
such Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading, and promptly to furnish to the
Company any additional information required to correct and update any
previously furnished information or required so that such Prospectus shall
not contain, with respect to such Holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(e) The Company and each Guarantor shall comply with all applicable
rules and regulations of the Commission and make generally available to its
securityholders earning statements (which need not be audited) satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no
later than 40 days after the end of any 12-month period (or 75 days after
the end of any 12-month period if such period is a fiscal year) commencing
on the first day of the first fiscal quarter of the Company commencing
after the effective date of the Shelf Registration Statement, which
statements shall cover said 12-month periods.
(f) The Company shall provide a CUSIP number for all Registrable
Securities covered by the Shelf Registration Statement not later than the
effective date of such Shelf
14
Registration Statement and provide the Trustee for the Notes and the
transfer agent for the Shares with printed certificates for the Registrable
Securities that are in a form eligible for deposit with The Depository
Trust Company.
(g) The Company and each Guarantor shall use its reasonable best
efforts to provide such information as is required for any filings required
to be made with the NASD.
(h) Until the expiration of the Effectiveness Period, the Company will
not, and will not permit any of its "affiliates" (as defined in Rule 144)
to, resell any of the Securities that have been reacquired by any of them
except pursuant to an effective registration statement under the Securities
Act.
(i) The Company and each of the Guarantors shall cause the Indenture
to be qualified under the Trust Indenture Act in a timely manner.
(j) The Company shall enter into such customary agreements and take
all such actions as are commercially reasonable, necessary and lawful in
connection therewith (including those requested by the Majority Holders of
the Registrable Securities being sold) in order to expedite or facilitate
disposition of such Registrable Securities.
4. Holder's Obligations.
Each Holder agrees, by acquisition of the Registrable Securities, that no
Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to the Shelf Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section 2(f)
hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as may be
required to be disclosed in the Shelf Registration Statement under applicable
law or pursuant to Commission comments. Each Holder further agrees not to sell
any Registrable Securities pursuant to the Shelf Registration Statement without
delivering, or causing to be delivered, a Prospectus to the purchaser thereof
and, following termination of the Effective Period, to notify the Company,
within 10 business days of a request by the Company, of the amount of
Registrable Securities sold pursuant to the Shelf Registration Statement and, in
the absence of a response, the Company may assume that all of the Holder's
Registrable Securities were so sold.
5. Registration Expenses.
The Company and each Guarantor agrees to bear and to pay or cause to be
paid promptly upon request being made therefor all expenses incident to the
Company's performance of or
15
compliance with this Agreement, including, but not limited to, (a) all
Commission and any NASD registration and filing fees and expenses, (b) all fees
and expenses in connection with the qualification of the Securities for offering
and sale under the State securities and Blue Sky laws referred to in Section
3(a)(v) hereof, including reasonable fees and disbursements of one counsel for
the placement agent or underwriters, if any, in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of the Shelf Registration Statement, the related
Prospectus, each amendment or supplement to each of the foregoing, the
certificates representing the Securities and all other documents relating
hereto, (d) fees and expenses of the Trustee under the Indenture, any escrow
agent or custodian, and of the registrar and transfer agent for the Shares, (e)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any reports required by
the Securities Act or the rules and regulations thereunder to be included or
incorporated by reference in the Shelf Registration Statement or "cold comfort"
letters required by or incident to such performance and compliance) and (f)
reasonable fees, disbursements and expenses of one counsel for the Holders of
Registrable Securities retained in connection with the Shelf Registration
Statement, as selected by the Company (unless reasonably objected to by the
Majority Holders of the Registrable Securities being registered, in which case
the Majority Holders shall select such counsel for the Holders) who shall
initially be ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Special Counsel"), and fees, expenses and
disbursements of any other Persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any Holder of Registrable Securities or any underwriter or placement
agent therefor, the Company shall reimburse such Person for the full amount of
the Registration Expenses so incurred, assumed or paid promptly after receipt of
a documented request therefor. Notwithstanding the foregoing, the Holders of the
Registrable Securities being registered shall pay all underwriting discounts and
commissions and placement agent fees and commissions attributable to the sale of
such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such Holders (severally or jointly), other
than the counsel and experts specifically referred to above.
6. Indemnification.
(a) The Company and each Guarantor agrees to indemnify and hold
harmless each Holder (including, without limitation, the Initial
Purchasers), the directors, officers, employees and Affiliates of the
Initial Purchasers and each person who controls such Holder within the
meaning of either the Securities Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
such Registration Statement or any prospectus forming part thereof or in
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not
16
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that neither the Company nor any
Guarantor will be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission from
any such document, in reliance upon and in conformity with written
information provided by a Holder; provided further, that with respect to
any untrue statement or omission of material fact from any prospectus, the
indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any Holder from whom the Person asserting any such loss, claim,
damage or liability purchased the securities concerned, to the extent that
any such loss, claim, damage or liability of such Holder occurs under the
circumstance that (y) the untrue statement or omission of a material fact
from the prospectus was corrected in an amendment or supplement in
accordance with the terms of this agreement and (z) there was not sent or
given to such Person, at or prior to the written confirmation of the sale
of such securities to such Person, a copy of the prospectus as amended or
supplemented, unless such failure to deliver the prospectus, as amended or
supplemented, was a result of non-compliance by the Company with Section 3;
provided, further, that the indemnity agreement contained in this Section
6(a) shall not inure to the benefit of any Holder to the extent that any
such loss, claim, damage or liability of or with respect to such Holder to
any person results from an offer or sale by the Holder of Securities during
a Deferral Period if such Holder received a Deferral Notice prior to the
making of such offer or sale. This indemnity agreement will be in addition
to any liability that the Company or any Guarantor may otherwise have.
(b) Each Holder agrees to indemnify and hold harmless the Company,
each Guarantor, each of its directors, each of its officers, and each
person, if any, who controls the Company or any Guarantor within the
meaning of either the Securities Act or the Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which the
Company or any Guarantor may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with any information furnished to the
Company by such Holder, and agrees to reimburse the Company, as incurred,
for any legal or other expenses reasonably incurred by it in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that no such Holder shall be liable for any
indemnity claims hereunder in excess of the amount of net proceeds received
by such Holder from the sale of Securities pursuant to such Shelf
Registration
17
Statement. This indemnity agreement will be in addition to any liability
which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action or investigation, such
indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section 6, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve the indemnifying party from
liability under paragraph (a) or (b) above unless and to the extent the
indemnifying party has been materially prejudiced through the forfeiture by
the indemnified party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b). If any action shall be brought against an indemnified
party and it shall have notified the indemnifying party thereof, the
indemnifying party shall be entitled to appoint counsel (including local
counsel) of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate
counsel, other than local counsel if not appointed by the indemnifying
party, retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel (including local counsel) to represent
the indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties that are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. It is understood that an indemnifying party
shall not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all indemnified
parties. An indemnifying party will not, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or
proceeding
18
and does not include an admission of fault, culpability or a failure to
act, by or on behalf of such indemnified party.
(d) The provisions of this Section 6 and Section 7 shall remain in
full force and effect, regardless of any investigation made by or on behalf
of any Holder, the Company, or any of the indemnified Persons referred to
in this Section 6 and Section 7, and shall survive the sale by a Holder of
securities covered by the Shelf Registration Statement.
7. Contribution.
If the indemnification provided for in Section 6 is unavailable or
insufficient to hold harmless an indemnified party under Section 6(a) or 6(b),
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company from the offering and sale of the Notes, on the one
hand, and a Holder with respect to the sale by such Holder of Securities, on the
other, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Guarantors, on the one hand, and such Holder, on the other,
with respect to the statements or omissions that resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand, and a Holder, on the other, with respect to such
offering and such sale shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Notes (excluding discounts and
commissions, but before deducting expenses) received by or on behalf of the
Company and the Guarantors, on the one hand, and the total net proceeds
(excluding discounts and commissions, but before deducting expenses) received by
such Holder upon a resale of the Securities, on the other, bear to the total
gross proceeds from the sale all Securities pursuant to the Shelf Registration
Statement in the offering of the Securities from which the contribution claim
arises. The relative fault 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 the Company and
the Guarantors or information supplied by the Company and the Guarantors, on the
one hand, or to any information contained in the relevant Notice and
Questionnaire supplied by such Holder, on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 7 were
to be determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 7 shall be deemed to include, for purposes of this Section 7, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 7, an
indemnifying party that is a Holder of Securities shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities sold by such indemnifying party to any purchaser exceeds the
amount of any damages
19
which such indemnifying party has otherwise paid or become liable to pay by
reason of any 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.
8. Rule 144A and Rule 144.
So long as any Registrable Securities remain outstanding, the Company and
each of the Guarantors shall use its reasonable best efforts to file the reports
required to be filed by it under Rule 144A(d)(4) under the Securities Act and
the Exchange Act in a timely manner and, if at any time the Company and each of
the Guarantors is not required to file such reports, it will, upon the written
request of any Holder of Registrable Securities, make publicly available other
information so long as necessary to permit sales of such Holder's securities
pursuant to Rules 144 and 144A of the Securities Act. The Company and each of
the Guarantors covenants that it will take such further action as any Holder of
Restricted Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d)(4)). Upon the written request of any Holder of Registrable
Securities, the Company shall deliver to such Holder a written statement as to
whether it and each of the Guarantors has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Company or any of the Guarantors to register any of its securities
pursuant to the Exchange Act.
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 has
obtained the written consent of the Majority Holders. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Securities are being sold pursuant to the Shelf Registration Statement and
that does not directly or indirectly affect the rights of other Holders may
be given by Holders of a majority in aggregate amount of the Securities
being sold by such Holders pursuant to the Shelf Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing next-day delivery:
(1) If to the Company, initially at the address set forth in the
Purchase Agreement;
(2) If to the Initial Purchasers, initially at the address set
forth in the Purchase Agreement; and
20
(3) If to a Holder, to the address of such Holder set forth in
the security register, the Notice and Questionnaire or other records
of the Company.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors and Assigns. This Agreement shall be binding upon the
Company, each Guarantor and each of their respective successors and
assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) 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) Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act and (c) except where otherwise expressly
provided, the term "affiliate" has the meaning set forth in Rule 405 under
the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Remedies. In the event of a breach by the Company or by any Holder
of any of their respective obligations under this Agreement, each Holder or
the Company, as the case may be, in addition to being entitled to exercise
all rights granted by law, including recovery of damages (other than the
recovery of damages for a breach by the Company of its obligations under
Section 3 hereof for which Liquidated Damages has been paid pursuant to
Section 2 hereof), will be entitled to specific performance of its rights
under this Agreement. The Company and each Holder agree that monetary
damages would not be adequate compensation for any loss incurred by reason
of a breach by it of any of the provisions of this Agreement and hereby
further agree that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law
would be adequate.
(i) No Inconsistent Agreements. The Company and each of the Guarantors
represents, warrants and agrees that (i) it has not entered into, shall
not, on or after the date of this Agreement, enter into any agreement that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously
entered into any agreement which remains in effect granting any
registration rights with respect to any of its debt securities to any
Person and (iii) without limiting the generality of the foregoing, without
the written consent of the Majority Holders, it shall not grant to any
21
Person the right to request the Company to register any securities of the
Company under the Securities Act unless the rights so granted are not in
conflict or inconsistent with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Company nor any of its
security holders (other than the Holders of Restricted Securities in such
capacity) shall have the right to include any securities of the Company in
any Shelf Registration Statement other than Registrable Securities.
(k) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(l) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf
of any Holder of Registrable Securities, any director, officer or partner
of such Holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and
shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of
Registrable Securities by such Holder.
(m) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of Securities is required
hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to
be affiliates solely by reason of their holdings of such Securities) shall
not be counted in determining whether such consent or approval was given by
the Holders of such required percentage.
22
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Guarantors and
the Initial Purchasers in accordance with its terms.
Very truly yours,
THE COMPANY
KING PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and CEO
THE GUARANTORS
PARKEDALE PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and CEO
KING PHARMACEUTICALS RESEARCH AND
DEVELOPMENT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and CEO
KING PHARMACEUTICALS OF NEVADA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and CEO
MERIDIAN MEDICAL TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CEO
MONARCH PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and CEO
THE INITIAL PURCHASERS
Accepted: March 29, 2006
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
