Exhibit 4.3
▇▇▇▇▇ & MINOR, INC.
8 1/2% Senior Subordinated Notes due 2011
__________
Exchange and Registration Rights Agreement
------------------------------------------
July 2, 2001
▇▇▇▇▇▇ Brothers Inc.,
Banc of America Securities LLC,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
First Union Securities, Inc.,
▇▇▇▇▇▇▇ Sachs & Co.,
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
As representatives of the several Purchasers
named in the Purchase Agreement
c/▇ ▇▇▇▇▇▇ Brothers
3 World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ & Minor, a Virginia corporation (the "Company"), proposes to
issue and sell to the Purchasers (as defined herein) upon the terms set forth in
the Purchase Agreement (as defined herein) $200,000,000 in the aggregate
principal amount of its 8 1/2% Senior Subordinated Notes due 2011, which are
unconditionally guaranteed by ▇▇▇▇▇ & Minor Medical, Inc., a Virginia
corporation; National Medical Supply Corporation, a Delaware corporation; ▇▇▇▇▇
& Minor West, Inc., a California corporation; Koley's Medical Supply, Inc., a
Nebraska corporation, and Stuart Medical, Inc., a Pennsylvania corporation (the
"Guarantors"). As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company and the Guarantors agree with the Purchasers
for the benefit of holders (as defined herein) from time to time of the Transfer
Restricted Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving effect
to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
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"Closing Date" shall mean the date hereof.
"Commission" shall mean the United States 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.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange Offer
Registration Statement effective or as of which the Exchange Offer Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
"Electing Holder" shall mean any holder of Transfer Restricted
Securities that has returned a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, and the rules and regulations promulgated thereunder, all as
the same shall be amended from time to time.
"Exchange Notes" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning
assigned thereto in Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
The term "holder" shall mean each of the Purchasers and other persons
who acquire Transfer Restricted Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Transfer Restricted Securities.
"Indenture" shall mean the Indenture, dated as of July 2, 2001,
between the Company, the Guarantors, and SunTrust Bank, as Trustee, as
supplemented by the first supplemental indenture, dated as of July 2, 2001.
"Liquidated Damages" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Majority Holders" means the holders of a majority of the aggregate
principal amount at maturity of the Transfer Restricted Securities satisfying
the terms and conditions for registration under the Exchange Offer Registration
Statement or the Shelf Registration Statement.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Security holder Questionnaire substantially in the form of Exhibit A
hereto.
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The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
June 22, 2001, between the Purchasers, the Guarantors, and the Company relating
to the Securities.
"Purchasers" shall mean the Initial Purchasers named in the Purchase
Agreement.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Notes outside the ordinary course of such holder's business, (iii) a holder who
has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Notes and (iv) a holder
that is a broker-dealer, but only with respect to Exchange Notes received by
such broker-dealer pursuant to an Exchange Offer in exchange for Transfer
Restricted Securities acquired by the broker-dealer directly from the Company.
"Rule 144, " "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as the
same shall be amended from time to time.
"Securities" shall mean, collectively, the 8 1/2% Senior Subordinated
Notes due 2011 of the Company to be issued and sold to the Purchasers, and
securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture. Each Security is entitled to the benefit of the guarantees provided
for in the Indenture (the "Guarantees") and, unless the context otherwise
requires, any reference herein to a "Security," an "Exchange Note" or a
"Transfer Restricted Security" shall include a reference to the related
Guarantees.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules and regulations promulgated thereunder, all as
the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Transfer Restricted Securities" shall mean the Securities; until:
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(1) the date on which such Security has been exchanged by a Person
other than a broker-dealer for an Exchange Note in the Exchange Offer;
(2) following the exchange by a broker-dealer in the Exchange Offer
of a Security for an Exchange Note, the date on which such Exchange Note is sold
to a purchaser who receives from such broker-dealer on or prior to the date of
such sale a copy of the prospectus contained in the Exchange Offer Registration
Statement
(3) the date on which such Security has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement ; or
(4) the date on which such Security is distributed to the public
pursuant to Rule 144 under the Securities Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
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
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to use
its commercially reasonable efforts to file under the Securities Act, on or
prior to, but no later than 90 days after the Closing Date, a registration
statement relating to an offer to exchange (such registration statement, the
"Exchange Offer Registration Statement", and such offer, the "Exchange Offer")
any and all of the Securities for a like aggregate principal amount of debt
securities issued by the Company and guaranteed by the Guarantors, which debt
securities and guarantees are substantially identical to the Securities and
the related Guarantees, respectively (and are entitled to the benefits of a
trust indenture which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture Act), except
that they have been registered pursuant to an effective registration statement
under the Securities Act and do not contain provisions for the Liquidated
Damages as contemplated in Section 2(c) below (such new debt securities
hereinafter called "Exchange Notes"). The Company agrees to use its
commercially reasonable efforts to cause the Exchange Offer Registration
Statement to become effective under the Securities Act and to commence the
Exchange Offer on or prior to 150 days after the Closing Date. The Company and
the Guarantors shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state securities
laws to consummate the Exchange Offer; provided, however, that in no event
shall such period be less than 30 business days. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will comply
with all applicable tender offer rules and regulations under the Exchange Act.
The Company further agrees to use its commercially reasonable efforts to
complete the Exchange Offer on or prior to 180 days after the Closing Date and
exchange Exchange Notes for all Transfer Restricted Securities that have been
properly tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been "completed"
only if the
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debt securities and related guarantees received by holders other than
Restricted Holders in the Exchange Offer for Transfer Restricted Securities
are, upon receipt, transferable by each such holder without restriction under
the Securities Act and the Exchange Act and without material restrictions
under the blue sky or securities laws of a majority of the States of the
United States of America. The Exchange Offer shall be deemed to have been
completed upon the earlier to occur of (i) the Company having exchanged the
Exchange Notes for all outstanding Transfer Restricted Securities pursuant to
the Exchange Offer and (ii) the Company having exchanged, pursuant to the
Exchange Offer, Exchange Notes for all Transfer Restricted Securities that
have been properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 20 business days
following the commencement of the Exchange Offer. The Company agrees (x) to
include in the Exchange Offer Registration Statement a prospectus for use in
any resales by any holder of Exchange Notes that is a broker-dealer and (y) to
keep such Exchange Offer Registration Statement effective for a period (the
"Resale Period") beginning when Exchange Notes 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. With respect to such
Exchange Offer Registration Statement, such holders shall have the benefit of
the rights of indemnification and contribution set forth in Sections 6(a),
(c), (d) and (e) hereof.
(b) If (i) the Company is not (A) required to file the Exchange Offer
Registration Statement; or (B) permitted to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy, (ii) any holder of Transfer Restricted Securities notifies the Company
prior to the 20th day following the consummation of the Exchange Offer that
(X) it is prohibited by applicable law or Commission policy from participating
in the Exchange Offer; or (Y ) that it may not resell the Exchange Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for resales; or (Z) that it is a
broker-dealer and owns Securities acquired directly from the Company or an
affiliate of the Company, the Company and the Guarantors will use their
commercially reasonable efforts to file under the Securities Act on or prior
to 90 days after such filing obligation arises, a "shelf" registration
statement providing for the registration of, and the sale on a continuous or
delayed basis by the holders of, all of the Transfer Restricted Securities,
pursuant to Rule 415 or any similar rule that may be adopted by the Commission
(such filing, the "Shelf Registration" and such registration statement, the
"Shelf Registration Statement"). The Company agrees to use its commercially
reasonable efforts (x) to cause the Shelf Registration Statement to become or
be declared effective on or prior to 180 days after such obligation arises and
to keep such Shelf Registration Statement continuously effective for a period
ending on the earlier of the second anniversary of the Effective Time or such
time as there are no longer any Transfer Restricted Securities outstanding,
provided, however, that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the prospectus
forming a part thereof for resales of Transfer Restricted Securities unless
such holder is an Electing Holder, and (y) after the Effective Time of the
Shelf Registration Statement, promptly upon the request of any holder of
Transfer Restricted Securities that is not then an Electing Holder, to take
any action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Transfer Restricted Securities,
including, without limitation, any action necessary to identify such holder as
a selling securityholder in the Shelf Registration Statement, provided,
however, that nothing in this Clause (y) shall relieve any such holder of the
obligation to return a completed and signed
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Notice and Questionnaire to the Company in accordance with Section 3(d)(ii)
hereof. 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, and the Company
agrees to furnish to each Electing Holder copies of any such supplement or
amendment prior to its being used or promptly following its filing with the
Commission.
(c) In the event that (i) the Company has not filed the Exchange Offer
Registration Statement or Shelf Registration Statement on or before the date
on which such registration statement is required to be filed pursuant to
Section 2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration
Statement or Shelf Registration Statement has not become effective or been
declared effective by the Commission on or before the date on which such
registration statement is required to become or be declared effective pursuant
to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not
been completed within 180 days after the Closing Date or (iv) any Exchange
Offer Registration Statement or Shelf Registration Statement required by
Section 2(a) or 2(b) hereof is filed and declared effective but thereafter
ceases to be effective or useable in connection with re-sales of Transfer
Restricted Securities during the time periods specified herein (each such
event referred to in clauses (i) through (iv), a "Registration Default" and
each period during which a Registration Default has occurred and is
continuing, a "Registration Default Period"), then, as liquidated damages for
such Registration Default, subject to the provisions of Section 9(b),
liquidated damages ("Liquidated Damages"), in addition to the Base Interest,
shall accrue in an amount equal to $.05 per week per $1,000 principal amount
of Notes held by the Holders. The amount of Liquidated Damages will increase
by an additional $.05 per week per $1,000 principal amount of Securities with
respect to each 90-day period until all Registration Defaults have been cured,
up to a maximum amount of Liquidated Damages for all Registration Defaults of
$.20 per week per $1,000 principal amount of Securities.
(d) The Company shall take and shall cause the Guarantors to take all
actions necessary to be taken by it to ensure that the transactions
contemplated herein are effected as so contemplated including all actions
necessary to register the Guarantees under the registration statement
contemplated in Section 2(a) or 2(b) hereof, as applicable.
(e) Any reference herein to a registration statement as of any time shall
be deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to any post-
effective amendment to a registration statement as of any time shall be deemed
to include any document incorporated, or deemed to be incorporated, therein by
reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture
under the Trust Indenture Act of 1939.
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(b) In the event that such qualification would require of a new trustee
under the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Notes as contemplated by Section 2(a) (the "Exchange
Registration"), if applicable, the Company shall:
(i) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange Offer
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange Offer
Registration Statement for the periods and purposes contemplated in Section
2(a) hereof and as may be required by the applicable rules and regulations
of the Commission and the instructions applicable to the form of such
Exchange Offer Registration Statement, and promptly provide each broker-
dealer holding Exchange Notes with such number of copies of the prospectus
included therein (as then amended or supplemented), in conformity in all
material respects with the requirements of the Securities Act and the Trust
Indenture Act, as such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with resales of
Exchange Notes;
(ii) promptly advise each broker-dealer that has requested or
received copies of the prospectus included in such registration statement,
and confirm such advice in writing, (A) when such Exchange Offer
Registration Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and,
with respect to such Exchange Offer Registration Statement or any post-
effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Exchange Offer
Registration Statement or prospectus or for additional information, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of such Exchange Offer Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D) if at
any time the representations and warranties of the Company contemplated by
Section 5 cease to be true and correct in all material respects, (E) of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Exchange Notes for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (F) at
any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange Offer 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 or contains
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(iii) in the event that the Company would be required, pursuant
to Section 3(c)(ii)(F) above, to notify any broker-dealers holding Exchange
Notes, without delay prepare and furnish to each such holder a reasonable
number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of such Exchange Notes during the Resale
Period, such prospectus shall conform in all
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material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(iv) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such Exchange Offer
Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
(v) use its commercially reasonable efforts to (A) register or
qualify the Exchange Notes under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each broker-
dealer holding Exchange Notes to consummate the disposition thereof in such
jurisdictions; provided, however, that neither the Company nor the
Guarantors shall be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section 3(c)(v), (2)
consent to general service of process in any such jurisdiction or (3) make
any changes to its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(vi) use its commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Notes by broker-dealers during the Resale Period;
(vii) provide a CUSIP number for all Exchange Notes, not later
than the applicable Effective Time;
(viii) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but no later than eighteen months after the effective date of
such Exchange Offer Registration Statement, an earning statement of the
Company and its subsidiaries complying with Section 11 (a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
As a condition to its participation in the Exchange Offer pursuant to the
terms of this Agreement, each holder of Transfer Restricted Securities shall
furnish, upon the request of the Company, prior to the consummation thereof, a
written representation to the Company and the Guarantors to the effect that (A)
it is not an affiliate of the Company, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the Exchange Notes to be issued in the
Exchange Offer and (C) it is acquiring the Exchange Notes in the ordinary course
of its business. In addition, all such holders of Transfer Restricted
Securities shall otherwise cooperate in the Company's and the Guarantors'
preparations for the Exchange Offer. Each holder hereby acknowledges and agrees
that any broker-dealer and any such holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the Exchange
Offer (1) could not under
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Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Exxon Capital Holdings Corporation
(available May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5,
1991), as interpreted in the Commission's letter to Shearman & Sterling, dated
July 2, 1993, and similar no-action letters, and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Exchange Notes obtained by
such holder in exchange for Transfer Restricted Securities acquired by such
holder directly from the Company.
Prior to effectiveness of the Exchange Offer Registration Statement,
the Company and the Guarantors shall state to the Commission that the Company
and the Guarantors are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings Corporation
(available May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5,
1991) and shall represent to the Commission that neither the Company nor any
Guarantor has entered into any arrangement or understanding with any person to
distribute the Exchange Notes to be received in the Exchange Offer and that, to
the best of the Company's and each Guarantor's information and belief, each
holder participating in the Exchange Offer is acquiring the Exchange Notes in
the ordinary course of its business and has no arrangement or understanding with
any Person to participate in the distribution of the Exchange Notes received in
the Exchange Offer.
The Company and the Guarantors shall issue, upon the request of any
holder of Transfer Restricted Securities covered by the Exchange Offer, Exchange
Notes, having an aggregate principal amount equal to the aggregate principal
amount of Transfer Restricted Securities surrendered to the Company by such
holder in exchange therefor; such Exchange Notes to be registered in the name of
such holder or in the name of the purchaser(s) of such Exchange Notes, as the
case may be; in return, the Transfer Restricted Securities held by such holder
shall be surrendered to the Company for cancellation.
(d) In connection with the Company's obligations with respect to the Shelf
Registration, if applicable, the Company shall:
(i) not less than 20 calendar days prior to the Effective Time
of the Shelf Registration Statement, mail the Notice and Questionnaire to
the holders of Transfer Restricted Securities; no holder shall be entitled
to be named as a selling securityholder in the Shelf Registration Statement
as of the Effective Time, the Company may exclude from registration the
Transfer Registered Securities of any holder and no holder shall be
entitled to use the prospectus forming a part thereof for resales of
Transfer Restricted Securities at any time, unless such holder has returned
a completed and signed Notice and Questionnaire to the Company by the
deadline for response set forth therein; provided, however, holders of
Transfer Restricted Securities shall have at least 15 calendar days from
the date on which the Notice and Questionnaire is first mailed to such
holders to return a completed and signed Notice and Questionnaire to the
Company;
(ii) after the Effective Time of the Shelf Registration
Statement, upon the written request of any holder of Transfer Restricted
Securities that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided that the Company shall not be
required to take any action to name such holder as a
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selling securityholder in the Shelf Registration Statement, register the
Transfer Restricted Securities of such holder or to enable such holder to
use the prospectus forming a part thereof for resales of Transfer
Restricted Securities until such holder has returned a completed and signed
Notice and Questionnaire to the Company;
(iii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement and the prospectus included therein as may be necessary to effect
and maintain the effectiveness of such Shelf Registration Statement for the
period specified in Section 2(b) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement, and furnish to
the Electing Holders copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission. Notwithstanding the foregoing, the Company and the Guarantors
may allow the Shelf Registration Statement to cease to become effective and
usable for not more than 90 days in any 365 day period if (a) the board of
directors of the Company determines in good faith that it is in the best
interests of the Company not to disclose the existence of or facts
surrounding any proposed or pending material corporate transaction
involving the Company or the Guarantors, and the Company notifies the
Electing Holders within two business days after its board of directors
makes such determination or (b) the prospectus contained in the Shelf
Registration Statement contains an untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made,
nor misleading; provided that Liquidated Damages shall accrue on the Notes
as provided in Section 2(c) hereof;
(iv) comply with the provisions of the Securities Act with
respect to the disposition of all of the Transfer Restricted Securities
covered by such Shelf Registration Statement in accordance with the
intended methods of disposition by the Electing Holders provided for in
such Shelf Registration Statement;
(v) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Company's principal place
of business or such other reasonable place for inspection by (A) the
Electing Holders, (B) the underwriters (which term, for the purposes of
this Exchange and Registration Rights Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(a)(11) of the
Securities Act), if any, thereof, (C) any sales or placement agent
therefor, (D) counsel for any such underwriter or agent and (E) not more
than one counsel for all the Electing Holders who shall certify to the
Company that they have a current intention to sell the Transfer Restricted
Securities pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of the
Company to respond to such inquiries, as shall be reasonably necessary, in
the judgment of the respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that each such party shall be required
to maintain in confidence and not to disclose to any other person any
information or records reasonably designated by the Company as being
confidential, until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be required so to
disclose such information pursuant to a subpoena or
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order of any court or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order, and only after
such person shall have given the Company prompt prior written notice of
such requirement), or (C) such information is required to be set forth in
such Shelf Registration Statement or the prospectus included therein or in
an amendment to such Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be,
complies with applicable requirements of the federal securities laws and
the rules and regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(vi) promptly advise each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which notification
may be made through any managing underwriter that is a representative of
such underwriter for such purpose) and confirm such advice in writing, (A)
when such Shelf Registration Statement or the prospectus included therein
or any prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or 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 threatening of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 3(d)(xiv) or Section 5
cease to be true and correct in all material respects, (E) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of the Transfer Restricted Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, or (F) if at any time when a prospectus is required to be
delivered under the Securities Act, that such 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 or contains an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(vii) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest
practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing Holder, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the
Commission and as such managing underwriter or underwriters, such agent or
such Electing Holder reasonably requests to be included therein relating to
the terms of the sale of such Transfer Restricted Securities, including
information with respect to the principal amount of Transfer Restricted
Securities being sold by such Electing Holder or agent or to any
underwriters, the name and description
11
of such Electing Holder, agent or underwriter, the offering price of such
Transfer Restricted Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
offering of the Transfer Restricted Securities to be sold by such Electing
Holder or agent or to such underwriters; and make all required filings of
such prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(ix) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(v) an executed copy (or, in
the case of an Electing Holder, a conformed copy) of such Shelf
Registration Statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of an Electing Holder of
Transfer Restricted Securities, upon request) and documents incorporated by
reference therein) and such number of copies of such Shelf Registration
Statement (excluding exhibits thereto and documents incorporated by
reference therein unless specifically so requested by such Electing Holder,
agent or underwriter, as the case may be) and of the prospectus included in
such Shelf Registration Statement (including each preliminary prospectus
and any summary prospectus), in conformity in all material respects with
the applicable requirements of the Securities Act and the Trust Indenture
Act, and such other documents, as such Electing Holder, agent, if any, and
underwriter, if any, may reasonably request in order to facilitate the
offering and disposition of the Transfer Restricted Securities owned by
such Electing Holder, offered or sold by such agent or underwritten by such
underwriter and to permit such Electing Holder, agent and underwriter to
satisfy the prospectus delivery requirements of the Securities Act; and the
Company hereby consents to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or supplement thereto
by each such Electing Holder and by any such agent and underwriter, in each
case in the form most recently provided to such person by the Company, in
connection with the offering and sale of the Transfer Restricted Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(x) use commercially reasonable efforts to (A) register or
qualify the Transfer Restricted Securities to be included in such Shelf
Registration Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder and each placement or sales agent, if
any, therefor and underwriter, if any, thereof shall reasonably request,
(B) keep such registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers, sales and dealings
therein in such jurisdictions during the period the Shelf Registration is
required to remain effective under Section 2(b) above and for so long as
may be necessary to enable any such Electing Holder, agent or underwriter
to complete its distribution of Securities pursuant to such Shelf
Registration Statement and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such Electing Holder,
agent, if any, and underwriter, if any, to consummate the disposition in
such jurisdictions of such Transfer Restricted Securities; provided,
however, that neither the Company nor the Guarantors shall be required for
any such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but for
the requirements of this Section 3(d)(x), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to its certificate
of incorporation or by-laws or any agreement between it and its
shareholders;
12
(xi) use its commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the Shelf
Registration or the offering or sale in connection therewith or to enable
the selling holder or holders to offer, or to consummate the disposition
of, their Transfer Restricted Securities;
(xii) unless any Transfer Restricted Securities shall be in
book-entry only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold, which
certificates, if so required by any securities exchange upon which any
Transfer Restricted Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel engraved
borders, and which certificates shall not bear any restrictive legends;
and, in the case of an underwritten offering, enable such Transfer
Restricted Securities to be in such denominations and registered in such
names as the managing underwriters may request at least two business days
prior to any sale of the Transfer Restricted Securities;
(xiii) provide a CUSIP number for all Transfer Restricted
Securities, not later than the applicable Effective Time;
(xiv) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including customary
provisions relating to indemnification and contribution, make such
representations and warranties and take such other actions in connection
therewith as the Majority Holders shall reasonably request in order to
expedite or facilitate the disposition of such Transfer Restricted
Securities;
(xv) whether or not an agreement of the type referred to in
Section 3(d)(xiv) hereof is entered into and whether or not any portion of
the offering contemplated by the Shelf Registration is an underwritten
offering or is made through a placement or sales agent or any other entity,
(A) furnish a certificate, dated the date of the effectiveness of the Shelf
Registration Statement, signed by the Chairman of the Board, the President
or a Vice President and the Chief Financial Officer of the Company,
confirming, as of the date thereof, the matters set forth in Section 7(h)
of the Purchase Agreement and such other matters as the managing
underwriters, if any, or as the Majority Holders may reasonably request;
(B) obtain an opinion of counsel to the Company in customary form and
covering such matters, of the type customarily covered by such an opinion,
as the managing underwriters, if any, or as the Majority Holders may
reasonably request, addressed to such Electing Holder or Electing Holders
and the placement or sales agent, if any, therefor and the underwriters, if
any, thereof and dated the effective date of such Shelf Registration
Statement (and if such Shelf Registration Statement contemplates an
underwritten offering of a part or all of the Transfer Restricted
Securities, dated the date of the closing under the underwriting agreement
relating thereto) (it being agreed that the matters to be covered by such
opinion shall include the matters similar to those covered in Sections 7(c)
and 7(d) of the Purchase Agreement and such others as the managing
underwriters, if any, or the Majority Holders may reasonably request); (C)
obtain a "cold comfort" letter or letters from the independent certified
public accountants of the Company addressed to the selling Electing
Holders, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of such Shelf
Registration Statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such Shelf
13
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the latest
such statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering pursuant to
any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the latest
such statements included in such prospectus, dated the date of the closing
under the underwriting agreement relating thereto), such letter or letters
to be in customary form and covering such matters of the type customarily
covered by letters of such type; (D) deliver such documents and
certificates, including officers' certificates, as may be reasonably
requested by any Electing Holders of at least 30% in aggregate principal
amount of the Transfer Restricted Securities at the time outstanding or the
placement or sales agent, if any, therefor and the managing underwriters,
if any, thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in Section
5(a) hereof and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement
entered into by the Company or the Guarantors; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Transfer Restricted
Securities of any proposal by the Company to amend or waive any provision
of this Exchange and Registration Rights Agreement pursuant to Section 9(h)
hereof and of any amendment or waiver effected pursuant thereto, each of
which notices shall contain the text of the amendment or waiver proposed or
effected, as the case may be;
(xvii) in the event that any broker-dealer registered under
the Exchange Act shall underwrite any Transfer Restricted Securities or
participate as a member of an underwriting syndicate or selling group or
"assist in the distribution" (within the meaning of the Conduct Rules (the
"Conduct Rules") of the National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time to time) thereof,
whether as a holder of such Transfer Restricted Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Conduct Rules, including by (A) if such Conduct Rules
shall so require, engaging a "qualified independent underwriter" (as
defined in such Conduct Rules) to participate in the preparation of the
Shelf Registration Statement relating to such Transfer Restricted
Securities, to exercise usual standards of due diligence in respect thereto
and, if any portion of the offering contemplated by such Shelf Registration
Statement is an underwritten offering or is made through a placement or
sales agent, to recommend the yield of such Transfer Restricted Securities,
(B) indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 6 hereof (or to
such other customary extent as may be requested by such underwriter), and
(C) providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Conduct
Rules; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but in any event not later than eighteen months after the
effective date of such Shelf
14
Registration Statement, an earning statement of the Company and its
subsidiaries complying with Section 11 (a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to Section
3(d)(viii)(F) above, to notify the Electing Holders, the placement or sales
agent, if any, therefor and the managing underwriters, if any, thereof, the
Company shall without delay prepare and furnish to each of the Electing
Holders, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Transfer Restricted Securities, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading. Each Electing Holder agrees that upon receipt of
any notice from the Company pursuant to Section 3(d)(vi)(F) hereof, such
Electing Holder shall forthwith discontinue the disposition of Transfer
Restricted Securities pursuant to the Shelf Registration Statement applicable
to such Transfer Restricted Securities until such Electing Holder shall have
received copies of such amended or supplemented prospectus, and if so
directed by the Company, such Electing Holder shall deliver to the Company
(at the Company's expense) all copies, other than permanent file copies, then
in such Electing Holder's possession of the prospectus covering such Transfer
Restricted Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice Questionnaire,
the Company may require such Electing Holder to furnish to the Company such
additional information regarding such Electing Holder and such Electing
Holder's intended method of distribution of Transfer Restricted Securities as
may be required in order to comply with the Securities Act and may exclude
from registration the Transfer Restricted Securities of any holder who fails
to furnish such information within a reasonable time after receiving such
request. Each such Electing Holder agrees to notify the Company as promptly
as practicable of any inaccuracy or change in information previously
furnished by such Electing Holder to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to such
Shelf Registration contains or would contain an untrue statement of a
material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Transfer Restricted Securities or
omits to state any material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Transfer Restricted
Securities required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made 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
electing Holder or the disposition of such Transfer Restricted Securities, an
untrue statement of a material fact or omit to state a material fact required
to be stated therein in light of the circumstances under which they were
made, not misleading in light of the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, 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.
15
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses, including reasonable
fees and disbursements of counsel for the placement or sales agent or
underwriters in connection with such registration, filing and review, (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(d)(xii) hereof and determination of their eligibility for investment
under the laws of such jurisdictions as any managing underwriters or the
Electing Holders may designate, including any reasonable fees and disbursements
of counsel for the Electing Holders or underwriters in connection with such
qualification and determination, (c) all expenses relating to the preparation,
printing, production, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the expenses of preparing the Securities for delivery and the
expenses of printing or producing any underwriting agreements, agreements among
underwriters, selling agreements and blue sky or legal investment memoranda and
all other documents in connection with the offering, sale or delivery of
Securities to be disposed of (including certificates representing the
Securities), (d) messenger, telephone and delivery expenses relating to the
offering, sale or delivery of Securities and the preparation of documents
referred in clause (c) above, (e) fees and expenses of the Trustee under the
Indenture, any agent of the Trustee and any counsel for the Trustee of any
collateral agent or custodian, (f) internal expenses (including all salaries and
expenses of the Company's officers and employees performing legal or accounting
duties), (g) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (h) fees, disbursements and expenses of any "qualified
independent underwriter" engaged pursuant to Section 3(d)(xvii) hereof, (i)
reasonable fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Shelf Registration, as selected by the
Electing Holders of at least a majority in aggregate principal amount of the
Transfer Restricted Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Company), (j) any fees charged by securities
rating services for rating the Securities, and (k) 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 Transfer Restricted Securities or any placement or
sales agent therefor or underwriter thereof, the Company shall reimburse such
person for the full amount of the Registration Expenses so incurred, assumed or
paid promptly after receipt of a request therefor. Notwithstanding the
foregoing, the holders of the Transfer Restricted Securities being registered
shall pay all agency fees and commissions and underwriting discounts and
commissions and transfer taxes attributable to the sale of such Transfer
Restricted 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.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each
Purchaser and each of the holders from time to time of Transfer Restricted
Securities that:
16
(a) Each registration statement covering Transfer Restricted Securities
and each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c)
hereof and any further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed with the
Commission, as the case may be, and, in the case of an underwritten offering
of Transfer Restricted Securities, at the time of the closing under the
underwriting agreement relating thereto, will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture
Act and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act, other
than from (i) such time as a notice has been given to holders of Transfer
Restricted Securities pursuant to Section 3(d)(vi)(F) or Section 3(c)(ii)(F)
hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(e) or Section 3(c)(iii) hereof,
each such registration statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(d) or
Section 3(c) hereof, as then amended or supplemented, will conform in all
material respects to the requirements of the Securities Act and the Trust
Indenture Act and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by or
on behalf of a holder of Transfer Restricted Securities expressly for use
therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in
all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents will contain or
contained an untrue statement of a material fact or will omit or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of a holder of Transfer Restricted Securities expressly for use
therein.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, (i) any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any subsidiary of the Company
is a party or by which the Company or any subsidiary of the Company is bound
or to which any of the property or assets of the Company or any subsidiary of
the Company is subject, and that is required to be filed with the Commission
under Item 601(b)(10) of Regulation S-K, which breach, violation or default
would not reasonably be expected to have a material adverse effect on the
business, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole ("Material Adverse Effect"), (ii) the
provisions of the charter or the by-laws of the Company or the Guarantors or
(iii) any statute or any order, rule or regulation of any court or
governmental agency or body having
17
jurisdiction over the Company or any subsidiary of the Company or any of
their properties that would reasonably be expected to have a Material Adverse
Effect; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Company and the Guarantors of the
transactions contemplated by this Exchange and Registration Rights Agreement,
except the registration under the Securities Act of the Securities,
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under State securities or blue sky laws in connection with the
offering and distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company and the Guarantors. The Company and
the Guarantors, jointly and severally, will indemnify and hold harmless each
of the holders of Transfer Restricted Securities included in an Exchange
Offer Registration Statement, each of the Electing Holders of Transfer
Restricted Securities included in a Shelf Registration Statement and each
person who participates as a placement or sales agent or as an underwriter in
any offering or sale of such Transfer Restricted Securities against any
losses, claims, damages or liabilities, joint or several, to which such
holder, agent or underwriter may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages and liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Exchange Offer Registration Statement or Shelf Registration Statement, as the
case may be, under which such Transfer Restricted Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such holder, Electing
Holder, agent or underwriter, or 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 light of the circumstances under which they were
made, not misleading, and will reimburse such holder, such Electing Holder,
such agent and such underwriter for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that
neither the Company nor the Guarantors shall be liable to any such person in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration
statement, or preliminary, final or summary prospectus, or amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such person expressly
for use therein and provided further that with respect to any such untrue
statement or omission made in the preliminary prospectus, the foregoing
indemnity shall not inure to the benefit of the holder from whom the person
asserting such loss, claim, damage, liability or action purchased the
Transfer Restricted Securities, to the extent that such sale was a sale by
the holder and any such loss, claim, damage, liability or action of such
holder is a result of the fact that both (i) a copy of the prospectus (or the
prospectus as then amended or supplemented) was not sent or given to such
person at or prior to the written confirmation of the sale of such Transfer
Restricted Securities to such person, and (ii) the untrue statement or
omission in the preliminary prospectus was corrected in the prospectus (or
the prospectus as then
18
amended or supplemented) unless, such failure to deliver the prospectus was a
result of noncompliance by the Company.
(b) Indemnification by the Holders and any Agents and Underwriters The
Electing Holder of Transfer Restricted Securities included in any
registration statement filed pursuant to Section 2(b) hereof and each
underwriter named in any such underwriting agreement with respect thereto,
severally and not jointly, will (i) indemnify and hold harmless the Company
the Guarantors, and all other holders of Transfer Restricted Securities,
against any losses, claims, damages and liabilities to which the Company the
Guarantors or such other holders of Transfer Restricted Securities may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in such registration statement, or any preliminary,
final or summary prospectus contained therein or furnished by the Company to
any such Electing Holder, agent or underwriter, or 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 not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of such Electing Holder or underwriter expressly for use therein, and (ii)
reimburse the Company and the Guarantors for any legal or other expenses
reasonably incurred by the Company and the Guarantors in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that no such Electing Holder shall be required
to undertake liability to any person under this Section 6(b) for any amounts
in excess of the dollar amount of the proceeds to be received by such
Electing Holder from the sale of such Electing Holder's Transfer Restricted
Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement
of any action, such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party pursuant to the indemnification
provisions of or contemplated by this Section 6, notify such indemnifying
party in writing of the commencement of such action; but the failure so to
notify the indemnifying party shall not relieve the indemnifying party from
any liability which it may have to any indemnified party otherwise than under
the indemnification provisions of or contemplated by Section 6(a) or 6(b)
hereof. In case any such action shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement thereof,
such indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not
be liable to such indemnified party for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless
19
such settlement, compromise or judgment (i) includes an unconditional release
of the indemnified party from all liability arising out of such action 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.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party and the indemnified party from the sate of the Transfer Restricted
Securities or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of them
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or liabilities
(or actions in respect thereof) referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), no holder shall be
required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Transfer
Restricted Securities (after deducting any fees, discounts and commissions
applicable thereto) 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, and no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such underwriter has otherwise been required to pay by
reason of such untrue or all untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11 (f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Transfer Restricted Securities registered or under-written, as the
case may be, by them and not joint.
(e) The obligations of the Company and the Guarantors under this Section
6 shall be in addition to any liability which the Company or the Guarantors
may otherwise have and shall extend, upon the same terms and conditions, to
each officer, director and partner of each holder, agent and underwriter and
each person, if any, who controls any holder, agent or
20
underwriter within the meaning of the Securities Act; and the obligations of
the holders and any agents or underwriters contemplated by this Section 6
shall be in addition to any liability which the respective holder, agent or
underwriter may otherwise have and shall extent, upon the same terms and
conditions, to each officer and director of the Company or the Guarantors
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company or the Guarantors) and
to each person, if any, who controls the Company within the meaning of the
Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof shall
be designated by Electing Holders holding at least a majority in aggregate
principal amount of the Transfer Restricted Securities to be included in such
offering, provided that such designated managing underwriter or underwriters
is or are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Transfer Restricted
Securities hereby agrees with each other such holder that no such holder may
participate in any underwritten offering 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
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. Rule 144 and Rule 144A.
The Company covenants to the holders of Transfer Restricted Securities
that to the extent it shall be required to do so under the Exchange Act, the
Company shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including the reports under Sections 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act), and shall take such further action
as any holder of Transfer Restricted Securities may reasonably request, all to
the extent required from time to time to enable such holder to, sell Transfer
Restricted Securities without registration under the Securities Act within the
limitations of the exemption provided by Rule 144 and Rule 144A under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Transfer Restricted Securities in connection with that
holder's sale pursuant to Rule 144 or Rule 144A, the Company shall deliver to
such holder a written statement as to whether it has complied with such
requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Transfer Restricted Securities or any
other securities which would be inconsistent with the terms contained in this
Exchange and Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the holders from time to
time of the Transfer Restricted
21
Securities may be irreparably harmed by any such failure, and accordingly
agree that the Purchasers and such holders, in addition to any other remedy
to which they may be entitled at law or in equity, shall the entitled to
compel specific performance of the obligations of the Company under this
Exchange and Registration Rights Agreement in accordance with the terms and
conditions of this Exchange and Registration Rights Agreement, in any court
of the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to
it at ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Drew St. ▇.
▇▇▇▇▇▇▇ and if to a holder, to the address of such holder set forth in the
security register or other records of the Company, or to such other address
as the Company or any such holder may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders
from time to time of the Transfer Restricted Securities and the respective
successors and assigns of the parties hereto and such holders. In the event
that any transferee of any holder of Transfer Restricted Securities shall
acquire Transfer Restricted Securities, in any manner, whether by gift,
bequest, purchase, operation of law or otherwise, such transferee shall,
without any further writing or action of any kind, be deemed a beneficiary
hereof for all purposes and such Transfer Restricted Securities shall be held
subject to all of the terms of this Exchange and Registration Rights
Agreement, and by taking and holding such Transfer Restricted Securities such
transferee shall be entitled to receive the benefits of, and be conclusively
deemed to have agreed to be bound by all of the applicable terms and
provisions of this Exchange and Registration Rights Agreement. If the Company
shall so request, any such successor, assign or transferee shall agree in
writing to acquire and hold the Transfer Restricted Securities subject to all
of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and
Registration Rights 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 Transfer Restricted
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 Transfer Restricted Securities pursuant to the Purchase Agreement and the
transfer and registration of Transfer Restricted Securities by such holder
and the consummation of an Exchange Offer.
(f) Governing Law. This Exchange and Registration Rights Agreement shall
be governed by and construed in accordance with the laws of the State of New
York.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted
for convenience only, do not constitute a part of this Exchange and
Registration Rights Agreement and shall not affect in any way the meaning or
interpretation of this Exchange and Registration Rights Agreement.
22
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the Indenture
and the form of Securities) or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement supersedes
all prior agreements and understandings between the parties with respect to
its subject matter. This Exchange and Registration Rights Agreement may be
amended and the observance of any term of this Exchange and Registration
Rights Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively) only by a written instrument duly
executed by the Company and the holders of at least a majority in aggregate
principal amount of the Transfer Restricted Securities at the time
outstanding. Each holder of any Transfer Restricted Securities at the time
or thereafter outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 9(h), whether or not any notice, writing or marking
indicating such amendment or waiver appears on such Transfer Restricted
Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the holders of Transfer
Restricted Securities shall be made available for inspection and copying on
any business day by any holder of Transfer Restricted Securities for proper
purposes only (which shall include any purpose related to the rights of the
holders of Transfer Restricted Securities under the Securities, the Indenture
and this Agreement) at the offices of the Company at the address thereof set
forth in Section 9(c) above and at the office of the Trustee under the
Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
23
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company, the Guarantors and each of the
Representatives plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Purchasers, this letter and
such acceptance hereof shall constitute a binding agreement between each of the
Purchasers, the Guarantors and the Company. It is understood that your
acceptance of this letter on behalf of each of the Purchasers is pursuant to the
authority set forth in a form of Agreement among Purchasers, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
▇▇▇▇▇ & MINOR, INC.
By:_____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Operating Officer
▇▇▇▇▇ & Minor Medical, Inc.
National Medical Supply Corporation
▇▇▇▇▇ & Minor West, Inc.
Koley's Medical Supply, Inc.
Stuart Medical, Inc.
By:_____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Operating Officer
Accepted as of the date hereof:
▇▇▇▇▇▇ Brothers Inc.
Banc of America Securities LLC
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
First Union Securities, Inc.
▇▇▇▇▇▇▇, Sachs & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: ▇▇▇▇▇▇ Brothers Inc. on behalf of the Purchasers
By: .................................................
24
Exhibit A
▇▇▇▇▇ & Minor
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
------------------------------
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the ▇▇▇▇▇ & Minor, Inc. (the "Company") 8
1/2% Senior Subordinated Notes due 2011 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
------------------------------------------------------------------------------
enclosed materials as soon as possible as their rights to have the Securities
--------------------------------------
included in the registration statement depend upon their returning the Notice
and Questionnaire by _________________. Please forward a copy of the enclosed
documents to each beneficial owner that holds interests in the Securities
through you. If you require more copies of the enclosed materials or have any
questions pertaining to this matter, please contact ▇▇▇▇▇ & Minor, Inc., ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇.
▇▇▇▇▇ & Minor, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between ▇▇▇▇▇ & Minor, Inc. (the
"Company") and the Purchasers named therein. Pursuant to the Exchange and
Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form _____ (the "Shelf Registration Statement") for the registration and
resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities
Act"), of the Company's 8 1/2% Senior Subordinated Notes due 2011 (the
"Securities"). A copy of the Exchange and Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Exchange and Registration Rights Agreement.
A-1
Each beneficial owner of Transfer Restricted Securities is entitled to have the
Transfer Restricted Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Transfer Restricted Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE _______________. Beneficial owners of
Transfer Restricted Securities who do not complete, execute and return this
Notice and Questionnaire by such date (i) will not be named as selling
securityholders in the Shelf Registration Statement and (ii) may not use the
prospectus forming a part thereof for resales of Transfer Restricted Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related prospectus. Accordingly, holders
and beneficial owners of Transfer Restricted Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the Shelf Registration Statement
and related prospectus.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Transfer Restricted
Securities hereby elects to include in the Shelf Registration Statement the
Transfer Restricted Securities beneficially owned by it and listed below in Item
(3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Transfer Restricted Securities by the
terms and conditions of this Notice and Questionnaire and the Exchange and
Registration Rights Agreement, including, without limitation, Section 6 of the
Exchange and Registration Rights Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
Upon a sale of Transfer Restricted Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1): (a) Full Legal Name of Selling Securityholder:
___________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Transfer Restricted Securities Listed in Item (3) below:
___________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Transfer Restricted Securities
Listed in Item (3) below are Held:
___________________________________________________________________
(2) Address for Notices to Selling Securityholder:
_________________________
_________________________
Telephone: _________________________
Fax: _________________________
Contact Person: _________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does
not beneficially own any Securities.
(a) Principal amount of Transfer Restricted Securities beneficially
owned: ______________ CUSIP No(s). of such Transfer Restricted
Securities:_____________________________
(b) Principal amount of Securities other than Transfer Restricted
Securities beneficially owned:_________________________________
CUSIP No(s). of such other Securities:_________________________
(c) Principal amount of Transfer Restricted Securities which the
undersigned wishes to be included in the Shelf Registration
Statement:____________________________________________
CUSIP No(s). of such Transfer Restricted Securities to be included
in the Shelf Registration Statement:_____________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any
other securities of the Company, other than the Securities listed
above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
A-4
Except as set forth below, neither the Selling Securityholder nor
any of its affiliates, officers, directors or principal equity
holders (5% or more) has held any position or office or has had any
other material relationship with the Company (or its predecessors
or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Transfer Restricted Securities listed
above in Item (3) only as follows (if at all): Such Transfer
Restricted Securities may be sold from time to time directly by the
undersigned Selling Securityholder or, alternatively, through
underwriters, broker-dealers or agents. Such Transfer Restricted
Securities may be sold in one or more transactions at fixed prices,
at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales
may be effected in transactions (which may involve crosses or block
transactions) (i) on any national securities exchange or quotation
service on which the Registered Securities may be listed or quoted
at the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Transfer Restricted Securities or
otherwise the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short
sales of the Transfer Restricted Securities in the course of
hedging the positions they assume. The Selling Securityholder may
also sell Transfer Restricted Securities short and deliver Transfer
Restricted Securities to close out such short positions, or loan or
pledge Transfer Restricted Securities to broker-dealers that in
turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Transfer Restricted Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
A-5
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
▇▇▇▇▇ & Minor, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Drew St. ▇. ▇▇▇▇▇▇▇
(ii) With a copy to:
Hunton & ▇▇▇▇▇▇▇▇
Riverfront Plaza, East Tower
▇▇▇ ▇. ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Cyane ▇. ▇▇▇▇▇
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Transfer Restricted Securities
beneficially owned by such Selling Securityholder and listed in Item (3) above.
This Agreement shall be governed in all respects by the laws of the State of New
York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:_____________________________
______________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Transfer Restricted
Securities)
By:___________________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE _________________ TO THE COMPANY'S COUNSEL AT:
▇▇▇▇▇ & Minor, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Drew St. ▇. ▇▇▇▇▇▇▇
A-7
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
SunTrust Bank
▇▇▇▇▇ & Minor, Inc.
c/o SunTrust Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: ▇▇▇▇▇ & Minor, Inc. (the "Company")
8 1/2% Senior Subordinated Notes due 2011
Dear Sirs:
Please be advised that_____________________________ has transferred $______
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form ___ (File No. 333- _______) filed by
the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated _______ or in supplements thereto, and that the aggregate principal amount
of the Notes transferred are the Notes listed in such Prospectus opposite such
owner's name.
Dated:
Very truly yours,
______________________________________
(Name)
By: ______________________________________
(Authorized Signature)
B-1
