EXHIBIT 4.02
PHARMA SERVICES INTERMEDIATE HOLDING CORP.
$219,000,000 PRINCIPAL AT MATURITY 11 1/2% SENIOR DISCOUNT NOTES DUE 2014
Registration Rights Agreement
New York, New York
March 18, 2004
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Pharma Services Intermediate Holding Corp., a corporation organized
under the laws of the State of Delaware (the "Issuer"), proposes to issue and
sell to Citigroup Global Markets Inc. (the "Initial Purchaser") $219,000,000
aggregate principal amount at maturity of its 11 1/2% senior discount notes due
2014 (the "Notes") upon the terms set forth in a purchase agreement dated March
11, 2004 (the "Purchase Agreement") relating to the initial placement of the
Notes (the "Initial Placement"). The Notes will be issued pursuant to the
Indenture (as defined herein). To induce the Initial Purchaser to enter into the
Purchase Agreement and to satisfy a condition of your obligations thereunder,
the Issuer (as defined herein) hereby agrees with you for your benefit and the
benefit of the registered holders from time to time of Notes and Exchange Notes
(as defined herein) (including the Initial Purchaser) (each a "Holder" and,
together, the "Holders" for as long as such Person holds Notes), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following defined terms shall have the following
respective meanings:
"Act" shall mean the Securities Act of 1933, as amended.
"Affiliate" of, or Person "affiliated" with, any specified Person
shall mean any Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such specified Person. For purposes of this definition, "control" of a Person
shall mean the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled by" and "under common control with" shall have
meanings correlative to the foregoing.
"Agreement" shall have the meaning set forth in the preamble hereto.
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"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Conduct Rules" shall have the meaning set forth in Section 4(t)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" shall mean debt securities of the Issuer identical
in all material respects to the Notes (except that the additional interest
provisions, the transfer restrictions and the restrictive legends shall be
modified or eliminated, as appropriate) and to be issued under the Indenture.
"Exchange Offer Registration Period" shall mean the up to 90-day
period following the consummation of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Issuer on an appropriate form under the Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments thereto, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include the
Initial Purchaser) that is a Broker-Dealer and elects to exchange any Notes that
it acquired for its own account as a result of market-making activities or other
trading activities (but not directly from any Issuer or any Affiliate of any
Issuer) for Exchange Notes.
"Final Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"Holder(s)" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Notes, to be
dated as of the original issuance of the Notes, between the Issuer and the
Trustee, as amended, amended and restated or supplemented from time to time in
accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
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"Initial Purchaser" shall have the meaning set forth in the preamble
hereto.
"Inspector" shall have the meaning set forth in Section 4(q)(ii).
"Issuer" shall have the meaning set forth in the preamble hereto.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount at maturity of Notes and Exchange Notes, as the case
may be, registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"Notes" shall have the meaning set forth in the preamble hereto.
"Person" shall mean an individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or other legal
entity.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Notes or the Exchange Notes covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Issuer to issue and deliver to the Holders of the Notes that are not prohibited
by any law or policy of the Commission from participating in such offer a like
aggregate principal amount at maturity of Exchange Notes in exchange for the
Notes.
"Registration Default" shall have the meaning set forth in Section
3(c).
"Registration Default Period" shall have the meaning set forth in
Section 3(c)(vii).
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Notes or the
Exchange Notes pursuant to the provisions of this Agreement, any amendments and
supplements to such registra-
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tion statement, including post-effective amendments (in each case including the
Prospectus contained therein), all exhibits thereto and all material
incorporated by reference therein.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" shall have the meaning set forth in
Section 3(b)(ii) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuer prepared and filed with the Commission pursuant to the
provisions of Section 3 hereof which covers some or all of the Notes or Exchange
Notes, as applicable, on an appropriate form under Rule 415 under the Act, or
any successor or similar rule that may be adopted by the Commission, amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
"underwriter" shall mean any Person deemed an "underwriter," under
the Act, of the Notes or Exchange Notes in connection with an offering thereof
under a Shelf Registration Statement.
2. Registered Exchange Offer.
(a) To the extent not prohibited by any applicable law or any
applicable interpretation or any applicable policy of the staff of the
Commission, (i) the Issuer shall use its reasonable best efforts to prepare and,
not later than 360 days following the Closing Date (or if such 360th day is not
a Business Day, the next succeeding Business Day), file with the Commission the
Exchange Offer Registration Statement with respect to the Registered Exchange
Offer and (ii) the Issuer shall use its reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Act not
later than 420 days following the Closing Date (or if such 420th day is not a
Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuer shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Notes for Exchange Notes (assuming that such Holder is not
an Affiliate of the Issuer, acquires the Exchange Notes in the ordinary course
of such Holder's business, is not engaged in and does not intend to engage in
and has no arrangements or understandings with any Person to participate in the
distribution of the Exchange Notes, is not a broker-dealer tendering Notes
directly acquired from the Issuer for its own account and is not prohibited by
any law, interpretation or policy of the Commission from participating in the
Registered Exchange Offer) to trade such
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Exchange Notes from and after their receipt without any limitations or
restrictions under the Act and under state securities or blue sky laws.
(c) In connection with the Registered Exchange Offer, the Issuer
shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) if the Issuer receives notice from an Exchanging Dealer that
such Exchanging Dealer holds Notes acquired for the account of such
Exchanging Dealer as a result of market making or other trading
activities, use its reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act, supplemented
and amended as required under the Act to ensure that it is available for
sales of Exchange Notes by Exchanging Dealers during the Exchange Offer
Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York City time, on the last Business Day on
which the Registered Exchange Offer is open by sending to the entity
specified in the Prospectus, a facsimile or letter setting forth the name
of such Holder, the principal amount of the Notes delivered for exchange
and a statement that such ▇▇▇▇▇▇ is withdrawing such ▇▇▇▇▇▇'s election to
have such Notes exchanged;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, if requested by the Commission, provide a supplemental letter
to the Commission (A) stating that the Issuer is conducting the Registered
Exchange Offer in reliance on the position of the Commission in Exxon
Capital Holdings Corporation (pub. avail. May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and Co. Incorporated (pub. avail. June 5, 1991); and (B) including a
representation that the Issuer has not entered into any arrangement or
understanding with any Person to distribute the Exchange Notes to be
received in the Registered Exchange Offer and that, to the best of the
Issuer's information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the Exchange Notes in the ordinary
course of business and has no arrangement or understanding with any Person
to participate in the distribution of the Exchange Notes; and
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(vii) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) Promptly after the close of the Registered Exchange Offer, the
Issuer shall:
(i) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Registered Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and letter of
transmittal, which shall be an exhibit thereto;
(ii) deliver to the Trustee for cancellation in accordance with
Section 4(r) hereof all Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder of Notes a principal amount of Exchange Notes equal to the
principal amount of the Notes of such Holder so accepted for exchange;
provided that in the case of any Notes held in global form by a
depository, authentication and delivery to such depository of one or more
replacement Notes in global form in an equivalent amount thereto for the
account of such Holders in accordance with the Indenture shall satisfy
such authentication and delivery requirement.
(e) Each Holder, by tendering Notes for exchange for Exchange Notes,
acknowledges and agrees that any Broker-Dealer and any such Holder using the
Registered Exchange Offer to participate in a distribution of the Exchange Notes
(x) could not under Commission policy as in effect on the date of this Agreement
rely on the position of the Commission in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co. Incorporated
(pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail.
May 13, 1988), as interpreted in Shearman & Sterling (pub. avail. July 2, 1993)
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction and must be covered by an effective registration statement
containing the selling security holder information required by Items 507 and 508
of Regulation S-K, as applicable, under the Act if the resales are of Exchange
Notes obtained by such Holder in exchange for Notes acquired by such Holder
directly from any Issuer or one of its Affiliates. Accordingly, each Holder
participating in the Registered Exchange Offer shall be required to represent to
the Issuer in writing (which may be contained in the letter of transmittal
contemplated by the Registered Exchange Offer) that, at the time of the
consummation of the Registered Exchange Offer:
(i) any Exchange Notes received by such Holder will be acquired in
the ordinary course of business;
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(ii) such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Notes or the Exchange
Notes within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Issuer.
(f) If the Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Notes constituting any portion of an unsold allotment, at the written request of
the Initial Purchaser, the Issuer shall issue and deliver to the Initial
Purchaser or the Person purchasing Exchange Notes registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from the Initial
Purchaser, in exchange for such Notes, or Exchange Notes, as the case may be, a
like principal amount of the Notes (the "Private Exchange Notes") of the Issuer
that are identical in all material respects to the Exchange Notes except for the
placement of a restrictive legal legend on such Private Exchange Notes. The
Issuer shall use its reasonable best efforts to cause the CUSIP Service Bureau
to issue the same CUSIP number for such Private Exchange Notes as for Exchange
Notes issued pursuant to the Registered Exchange Offer.
3. Shelf Registration.
(a) If (i) due to any change in law, applicable interpretations
thereof or changes in policy by the Commission's staff, the Issuer determines
upon advice of its outside counsel that it is not permitted to effect the
Registered Exchange Offer as contemplated by Section 2 hereof; (ii) for any
other reason the Exchange Offer Registration Statement is not declared effective
within 420 days, or the Registered Exchange Offer is not consummated within 450
days, after the Issue Date; or (iii) prior to the 20th day following
consummation of the Registered Exchange Offer the Issuer receives written notice
that (A) the Initial Purchaser so requests with respect to Notes (or Private
Exchange Notes) that are not eligible to be exchanged for Exchange Notes in the
Registered Exchange Offer and that are held by it following consummation of the
Registered Exchange Offer; (B) any Holder (other than the Initial Purchaser or
Exchanging Dealer) is not eligible to participate in the Registered Exchange
Offer; or (C) in the case that the Initial Purchaser participates in the
Registered Exchange Offer or acquires Private Exchange Notes pursuant to Section
2(f) hereof, the Initial Purchaser does not receive freely tradeable Exchange
Notes in exchange for Notes constituting any portion of an unsold allotment (it
being understood that (x) the requirement that the Initial Purchaser deliver a
Prospectus containing the information required by Items 507 and 508 of
Regulation S-K, as applicable, under the Act in connection with sales of
Exchange Notes acquired in exchange for such Notes shall result in such Exchange
Notes being not "freely tradeable"; and (y) the requirement that an Exchanging
Dealer deliver a Prospectus in connection with sales of Exchange Notes acquired
in the Registered Exchange Offer in exchange for Notes acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Notes being not "freely tradeable"), the Issuer shall effect a Shelf
Registration Statement in accordance with Section 3(b) hereof. For all purposes
of this Agreement, the obligation to have a Shelf Registration Statement
declared effective under
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Section 3(a)(iii) shall be deemed to arise as set forth in Section 3(b)(i). The
obligation to file a Shelf Registration Statement under Section 3(a)(iii) shall
be deemed to arise on the later of the 360th day after the Issue Date or the day
the Issuer receives notice relating to a Section 3(a)(iii) Shelf Registration
Statement.
(b) (i) The Issuer shall as promptly as reasonably practicable (but
in no event more than 30 days after so required or requested pursuant to Section
3(a)(i) or (ii) and no later than the later of the 60th day after so required
pursuant to Section 3(a)(iii) or the 90th day after the Issue Date), file with
the Commission, and thereafter shall use its reasonable best efforts to cause to
be declared effective under the Act (within 90 days after so required or
requested pursuant to Section 3(a)(i) or (ii) or within 60 days of the filing
date of a Shelf Registration Statement required or requested pursuant to Section
3(a)(iii)), a Shelf Registration Statement relating to the offer and sale of the
Notes or the Exchange Notes, as applicable, by the Holders thereof from time to
time in accordance with the methods of distribution elected by a majority of
such Holders and set forth in such Shelf Registration Statement; provided,
however, that nothing in this Section 3(b) shall require the filing of a Shelf
Registration Statement prior to the deadline for filing the Exchange Offer
Registration Statement set forth in Section 2(a); provided, further, that no
Holder (other than the Initial Purchaser) shall be entitled to have the Notes
held by it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder; and provided, further, that with respect to Exchange
Notes or Private Exchange Notes received by the Initial Purchaser in exchange
for Notes constituting any portion of an unsold allotment, the Issuer may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Items 507 and 508 of Regulation S-K, as applicable,
in satisfaction of its obligations under this subsection with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(ii) The Issuer shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended as
required by the Act, in order to permit the Prospectus forming part thereof to
be usable by Holders for a period of two years from the original issuance date
of the Notes or such shorter period that will terminate when all the Notes or
Exchange Notes, as applicable, covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be
outstanding (in any such case, such period being called the "Shelf Registration
Period"). The Issuer shall be deemed not to have used its reasonable best
efforts to keep a Shelf Registration Statement effective during the Shelf
Registration Period if it voluntarily takes any action that would result in
Holders of Notes covered thereby not being able to use such Shelf Registration
Statement to offer and sell such Notes covered by such Shelf Registration
Statement at any time during the Shelf Registration Period, unless such action
is (x) required by the Commission, applicable law or otherwise undertaken by the
Issuer in good faith and for valid
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business reasons (not including avoidance of the Issuer's obligations
hereunder), including the acquisition or divestiture of assets, and (y)
permitted pursuant to Section 4(k)(ii) hereof.
(c) In the event that:
(i) within 360 days after the Issue Date, neither the Exchange Offer
Registration Statement nor, if required to be filed pursuant to Section
3(a)(i) or (ii) above, any Shelf Registration Statement has been filed
with the Commission;
(ii) within 30 days after a Shelf Registration Statement is required
to be filed pursuant to Section 3(a)(i) or (ii), so long as such 30th day
is a day after the 420th day following the Issue Date, the Shelf
Registration Statement has not been filed with Commission;
(iii) within 420 days after the Issue Date, the Exchange Offer
Registration Statement has not been declared effective as required by
Section 2(a);
(iv) within 450 days after the Issue Date, neither the Exchange
Offer has been consummated nor, if required to be filed pursuant to
Section 3(a)(i) or (ii) above, the Shelf Registration Statement has been
declared effective;
(v) within 60 days of the day on which the obligation to file a
Shelf Registration Statement arises pursuant solely to Section 3(a)(iii)
above, the Issuer fails to file such Shelf Registration Statement with the
Commission;
(vi) within 60 days of the day on which the obligation to have a
Shelf Registration Statement declared effective arises pursuant solely to
Section 3(a)(iii) above, such Shelf Registration Statement has not been
declared effective; or
(vii) after either the Exchange Offer Registration Statement or the
Shelf Registration Statement has been declared effective, such
Registration Statement thereafter ceases to be effective or fails to be
usable in connection with resales of Notes or Exchange Notes in accordance
with and during the periods specified in this Agreement, other than as
permitted pursuant to Section 3(b)(ii) and Section 4(k)(ii).
(each such event 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, additional
interest will accrue on the aggregate principal amount solely those Notes and
Exchange Notes subject to such Registration Default (in addition to the stated
interest on the Notes and Exchange Notes) from and including the date on which
any such Registration Default shall occur to, but excluding the date that is the
earlier of (1) the date on which all Registration Defaults applicable to the
subject Notes and Exchange Notes have been cured or (2) the date on which all
the Notes and Exchange Notes oth-
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erwise become freely transferable by Holders other than Affiliates of the Issuer
without further registration under the Act. Additional interest will accrue at
an initial rate of 0.25% per annum, which rate shall increase by 0.25% per annum
for each subsequent 90-day period during which such Registration Default
continues up to a maximum of 1.00% per annum. Any such accrued interest shall be
payable in cash to holders of the notes on each interest payment date at such
time as interest on the Notes is payable in cash. If, after the cure of all
Registration Defaults then in effect, there is a subsequent Registration
Default, the rate of additional interest for such subsequent Registration
Default shall initially be 0.25% regardless of the rate in effect with respect
to any prior Registration Default at the time of cure of such Registration
Default. Notwithstanding the foregoing, the amount of additional interest
payable shall not increase because more than one Registration Default has
occurred and is pending.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) the Issuer shall:
(i) furnish to each of you or your counsel, not less than
three Business Days prior to the filing thereof with the Commission,
a copy of the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, and each amendment
thereto and each amendment or supplement, if any, to the Prospectus
included therein (and upon written request, all documents
incorporated by reference therein after the initial filing) and
shall use its reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as you
reasonably propose within a reasonable time prior to such filing;
(ii) in the case of an Exchange Offer Registration Statement,
to the extent permitted by the Act, include the information in
substantially the form set forth in Annex A hereto on the facing
page of the Exchange Offer Registration Statement, in substantially
the form set forth in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth details of
the Exchange Offer, in substantially the form set forth in Annex C
hereto in the underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration Statement,
and in substantially the form set forth in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange
Offer; and
(iii) in the case of a Shelf Registration Statement, subject
to clause (n) below, include the names of the Holders that propose
to sell Notes or Exchange Notes pursuant to the Shelf Registration
Statement as selling security
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holders and the applicable information required by Items 507 and 508
of Regulation S-K as provided by the Holders.
(b) The Issuer shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The Issuer shall advise you, the Holders of Notes or Exchange
Notes covered by any Shelf Registration Statement and any Exchanging
Dealer under any Exchange Offer Registration Statement that has provided
in writing to the Issuer a telephone or facsimile number and address for
notices, and, if requested by you or any such Holder or Exchanging Dealer,
shall confirm such advice in writing (which notice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the use
of the Prospectus until the Issuer shall have remedied the basis for such
suspension):
(i) when a Registration Statement or any amendment thereto has
been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Issuer of any notification with
respect to the suspension of the qualification of the Notes included
therein for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the
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Prospectus, in the light of the circumstances under which they were
made) not misleading; provided that such notice need not identify
the reasons for such event that requires such change in the
Registration Statement.
(d) The Issuer shall use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the Notes therein for sale in any
jurisdiction at the earliest possible time.
(e) The Issuer shall furnish to each Holder of Notes or Exchange
Notes covered by any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including, upon written request, all material
incorporated therein by reference and exhibits thereto (including exhibits
incorporated by reference therein).
(f) The Issuer shall, during the Shelf Registration Period, deliver
to each Holder of Notes or Exchange Notes covered by any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request. The Issuer consents to the use (in all
cases in accordance with applicable law and subject to compliance with the
terms of this Agreement) of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Notes in connection with the
offering and sale of the Notes covered by the Prospectus, or any amendment
or supplement thereto, included in the Shelf Registration Statement.
(g) The Issuer shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including, upon written request, all material incorporated by reference
therein, and all exhibits thereto (including exhibits incorporated by
reference therein).
(h) The Issuer shall promptly deliver to the Initial Purchaser, each
Exchanging Dealer and each other Person required to deliver a Prospectus
during the Exchange Offer Registration Period, without charge, as many
copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as any such Person may
reasonably request. The Issuer consents to the use (in all cases in
accordance with applicable law and subject to compliance with the terms of
this Agreement) of the Prospectus or any amendment or supplement thereto
by the Initial Purchaser, any Exchanging Dealer and any such other Person
that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the Exchange
Notes covered by the Prospectus, or any amendment or supplement thereto,
included in the Exchange Offer Registration Statement.
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(i) Prior to the Registered Exchange Offer or any other offering of
Notes or Exchange Notes pursuant to any Registration Statement, the Issuer
shall arrange, if necessary, for the qualification of the Notes or the
Exchange Notes for sale under the laws of such jurisdictions as any Holder
shall reasonably request and will maintain such qualification in effect so
long as required; provided that in no event shall the Issuer be obligated
(i) to qualify to do business in any jurisdiction where it is not then so
qualified or (ii) to take any action that would subject it to taxation or
service of process in suits, other than those arising out of the Initial
Placement, the Registered Exchange Offer or any offering pursuant to a
Shelf Registration Statement, in any such jurisdiction where it is not
then so subject.
(j) The Issuer shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Exchange
Notes or Notes to be issued or sold pursuant to any Registration Statement
free of any restrictive legends and in such denominations and registered
in such names as Holders may request.
(k)
(i) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Issuer shall promptly
prepare a post-effective amendment to the applicable Registration
Statement or an amendment or supplement to the related Prospectus or
file any other required document so that, as thereafter delivered to
the Initial Purchaser, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In such
circumstances, the period of effectiveness of the Exchange Offer
Registration Statement provided for in Section 2 hereof and the
Shelf Registration Statement provided for in Section 3(b) hereof
shall each be extended by the number of days from and including the
date of the giving of a notice of suspension pursuant to Section
4(c) hereof to and including the date when the Initial Purchaser,
the Holders and any known Exchanging Dealer shall have received such
amended or supplemented Prospectus pursuant to this Section 4; or
(ii) Upon the occurrence or existence of any pending corporate
development or any other material event that, in the reasonable
judgment of the Issuer, makes it appropriate to suspend the
availability of a Shelf Registration Statement and the related
Prospectus, the Issuer shall give notice (without notice of the
nature or details of such events) to the Holders that the
availability of the Shelf Registration is suspended and, upon actual
receipt of any such notice, each Holder agrees not to sell any
registrable Notes pursuant to the Shelf Registration until such
▇▇▇▇▇▇'s receipt of copies of the supplemented or amended Prospectus
provided for in Section 4(h) hereof, or until it is advised
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in writing by the Issuer that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The period during which the availability of the Shelf Registration
and any Prospectus is suspended shall not exceed 45 days in any
three-month period or 90 days in any twelve-month period.
Notwithstanding this Section 4(k), in no event shall the Issuer be
required to maintain the effectiveness of any Exchange Offer Registration
Statement or Shelf Registration Statement beyond the second anniversary of
the original Issue Date of the Notes, except as set forth in Section
3(b)(ii). As soon as practicable following receipt of notice from the
Issuer in accordance with Sections 4(c) or (k) hereof, as the case maybe,
each Holder and Exchanging Dealer agrees to suspend use of the Prospectus
until such Holder and Exchanging Dealer receives copies of the amended or
supplemented Prospectus or until it receives written notice from the
Issuer that the use of the applicable Prospectus may be resumed.
(l) Not later than the effective date of any Registration Statement,
the Issuer shall provide a CUSIP number for the Notes or the Exchange
Notes, as the case may be, registered under such Registration Statement
and provide the Trustee with printed certificates for such Notes or
Exchange Notes, in a form eligible for deposit with The Depository Trust
Company.
(m) The Issuer shall comply with all applicable rules and
regulations of the Commission and make generally available to their
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act.
(n) The Issuer shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner.
(o) The Issuer may require each Holder of Notes to be sold pursuant
to any Shelf Registration Statement to furnish to the Issuer such
information regarding the Holder and the distribution of such Notes as the
Issuer may from time to time reasonably require for inclusion in such
Registration Statement. The Issuer may exclude from such Shelf
Registration Statement the Notes or Exchange Notes of any Holder that
unreasonably fails to furnish such information within a reasonable time
after receiving such request and the failure to include such Notes or
Exchange Notes of any such Holder shall not be deemed to be a default
hereunder. Each Holder agrees to promptly furnish additional information
required to be disclosed in order to make the information previously
furnished to the Issuer by such Holder, regarding such Holder, not
materially misleading.
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(p) In the case of any Shelf Registration Statement, the Issuer
shall enter into such and take all other appropriate actions (including,
if requested by Holders representing 10% of the aggregate principal amount
of Notes covered by such Shelf Registration Statement, an underwriting
agreement in customary form) in order to expedite or facilitate the
registration or the disposition of the Notes or Exchange Notes, and in
connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures no less
favorable than those set forth in Section 6 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing
Underwriters, if any, with respect to all parties to be indemnified
pursuant to Section 6).
(q) In the case of any Shelf Registration Statement, the Issuer
shall:
(i) upon written request and reasonable advance notice, make
reasonably available for inspection by the Holders of Notes or
Exchange Notes to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney retained by the Holders or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Issuer during normal
business hours at the offices where such information is typically
kept;
(ii) upon written request and reasonable advance notice, cause
the officers, directors and employees of the Issuer to supply all
relevant information reasonably requested by the Holders or any such
underwriter or attorney in connection with any such Shelf
Registration Statement (each an "Inspector") as is customary for
similar due diligence examinations during normal business hours at
the offices where such information is typically kept; provided,
however, that each Inspector shall agree in writing that any
confidential information referred to in Section 4(q)(i) above or
this Section 4(q)(ii) shall be kept confidential by such Inspector,
unless such disclosure is made in connection with a court proceeding
or required by law, or such information becomes available to the
public generally or through a third party (other than an Affiliate
of such Inspector) without an accompanying obligation of
confidentiality; provided, further, that prior written notice shall
be provided as soon as practicable to the Issuer of the potential
disclosure of any information in connection with a court proceeding
or required by law to permit the Issuer to obtain a protective order
or take such other action to prevent disclosure of such information;
(iii) make such representations and warranties to the Holders
of Notes or Exchange Notes registered thereunder and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten
offerings and covering matters including, but not lim-
-15-
ited to, those set forth in the Purchase Agreement as may be
reasonably requested;
(iv) obtain opinions of counsel to the Issuer (which may be
the Issuer's internal counsel) and updates thereof (which counsel
and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each
selling Holder (if then customary in underwritten offerings) and the
underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such Holders and
underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Issuer (and, if
necessary, any other independent certified public accountants of the
Issuer or any subsidiary of the Issuer or of any business acquired
by the Issuer for which financial statements and financial data are,
or are required to be, included in the Shelf Registration
Statement), addressed to the underwriters, if any, in customary form
and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings;
and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 4(l) and with any customary conditions contained in the
underwriting agreement or other customary agreement entered into by
the Issuer.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
4(q) shall be performed at each closing under any underwriting or similar
agreement as and to the extent required thereunder.
(r) If a Registered Exchange Offer is to be consummated, upon
delivery of the Notes by Holders to the Issuer (or to such other Person as
directed by the Issuer) in exchange for the Exchange Notes, the Issuer
shall mark, or caused to be marked, on the Notes so exchanged that such
Notes are being canceled in exchange for the Exchange Notes. In no event
shall the Notes be marked as paid or otherwise satisfied.
(s) The Issuer will use its reasonable best efforts if the Notes
have been rated prior to the initial sale of such Notes pursuant to the
Purchase Agreement, to confirm such ratings will apply to the Notes or the
Exchange Notes, as the case may be, covered by an Exchange Offer
Registration Statement.
-16-
(t) In the event that any Broker-Dealer shall underwrite any Notes
or Exchange Notes or participate as a member of an underwriting syndicate
or selling group or "assist in the distribution" (within the meaning of
the Conduct Rules of the National Association of Securities Dealers, Inc.
(the "Conduct Rules")) thereof, whether as a Holder or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Issuer shall assist such Broker-Dealer in complying with
the requirements of such Conduct Rules, including, without limitation, by:
(i) if such Conduct Rules shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and,
if any portion of the offering contemplated by such Registration
Statement is an underwritten offering or is made through a placement
or sales agent, to recommend the yield of such Notes or Exchange
Notes;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in
Section 6 hereof; and
(iii) providing such information to such Broker-Dealer as may
be required in order for such Broker-Dealer to comply with the
requirements of such Conduct Rules.
(u) The Issuer shall cooperate with the Holders participating in the
disposition of the Notes and one counsel acting on behalf of all such
Holders in connection with the filings, if any, required to be made with
the NASD.
(v) The Issuer shall use its reasonable best efforts to take all
other steps necessary to effect the registration of the Notes or the
Exchange Notes, as the case may be, covered by a Registration Statement.
5. Registration Expenses. The Issuer shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof, and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchaser for the reasonable fees and
disbursements of such one firm or counsel acting in connection therewith. Each
Holder shall pay all commissions and transfer taxes, if any, relating to the
sale or disposition of such Holder's Notes.
6. Indemnification and Contribution.
(a) The Issuer agrees to indemnify and hold harmless each Holder of
Notes or Exchange Notes, as the case may be, covered by any
-17-
Registration Statement (including the Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer), the directors, officers, employees and agents of each such Holder and
each Person who controls any such Holder within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal, state or
foreign statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement as originally filed
or in any amendment thereof, or in any preliminary prospectus or the Prospectus,
or in any amendment thereof 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,
and jointly and severally agree to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Issuer will not be liable in
any case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Issuer by or on behalf of any such
Holder relating to such Holder specifically for inclusion therein.
The Issuer also agrees to indemnify or contribute as provided in
Section 6(d) (below) to Losses of each underwriter of Notes or Exchange Notes,
as the case may be, registered under a Shelf Registration Statement, its
directors, officers, employees or agents and each Person who controls such
underwriter on substantially the same basis as that of the indemnification of
the Initial Purchaser and the selling Holders provided in this Section 6(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 4(p) hereof.
(b) The Holder of Notes covered by a Registration Statement
(including the Initial Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer) severally agrees to
indemnify and hold harmless the Issuer, its directors, officers or agents and
each Person who controls the Issuer within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Issuer to
each such Holder, but only in reliance upon and conformity with written
information relating to such Holder furnished to the Issuer by or on behalf of
such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect
-18-
thereof is to be made against the indemnifying party under this Section 6,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ one
firm of separate counsel (in addition to one local counsel firm), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with an actual
conflict of interest; (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded, based upon the advice
of counsel, that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party; (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. It is
understood, however, that the indemnifying party shall, in connection with any
one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general circumstances, be liable for
the fees and expenses of only one firm of attorneys (in addition to one local
counsel) at any time for all such indemnified parties. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (ii) does not include a statement as to, or an
admission of, fault or culpability or failure to act by or on behalf of any
indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute
-19-
to the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or defending
same) (collectively "Losses") to which such indemnified party may be subject in
such proportion as is appropriate to reflect the relative benefits received by
such indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement which
resulted in such Losses; provided, however, that in no case shall the Initial
Purchaser or any subsequent Holder of any Note or Exchange Note be responsible,
in the aggregate, for any amount in excess of the purchase discount or
commission applicable to such Note or, in the case of an Exchange Note,
applicable to the Note that was exchangeable into such Exchange Note, as set
forth on the cover page of the Final Memorandum, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Notes purchased by such underwriter under the Registration
Statement which resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of such indemnifying party, on the one hand, and such indemnified party,
on the other hand, in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations. The
relative benefits received by the Issuer shall be deemed to be equal to the
total net proceeds from the Initial Placement (before deducting expenses) as set
forth on the cover page of the Final Memorandum. The relative benefits received
by the Initial Purchaser shall be deemed to be equal to the total purchase
discounts and commissions as set forth on the cover page of the Final Memorandum
and benefits received by any other Holders shall be deemed to be equal to the
value of receiving Notes or Exchange Notes, as applicable, registered under the
Act. Benefits received by any underwriter shall be deemed to be equal to the
total underwriting discounts and commissions, as set forth on the cover page of
the Prospectus forming a part of the Registration Statement which resulted in
such Losses. Relative fault shall be determined by reference to, among other
things, whether any alleged untrue statement of a material fact or omission to
state a material fact relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The parties agree that
it would not be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6, each Person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
Person who controls the Issuer within the meaning of either the Act or the
Exchange Act, each officer of the Issuer who shall have signed the Registration
Statement and each director of the Issuer shall have the same rights to
-20-
contribution as the Issuer, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Issuer or any of the officers, directors or controlling Persons referred to
in this Section 6, and will survive the sale by a Holder of Notes covered by a
Registration Statement.
7. Underwritten Registrations.
(a) If any of the Notes or Exchange Notes, as the case may be,
covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriter(s) shall be selected by the Majority Holders
and shall be reasonably satisfactory to the Issuer.
(b) No Person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such Person (i) agrees to sell such
Person's Notes or Exchange Notes, as the case may be, on the basis reasonably
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. No Inconsistent Agreements. The Issuer has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, otherwise than with the prior written
consent of (i) the Issuer and (ii) the Majority Holders; provided that, with
respect to any matter that directly or indirectly affects any rights of the
Initial Purchaser hereunder, the Issuer shall obtain the written consent of the
Initial Purchaser against which such amendment, qualification, supplement,
waiver or consent is to be effective. Notwithstanding the foregoing (except the
foregoing proviso), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders whose
Notes or Exchange Notes, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the
basis of Notes or Exchange Notes, as the case may be, being sold rather than
registered under such Registration Statement.
-21-
10. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such Holder
to the Issuer in accordance with the provisions of this Section 10, which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Citigroup Global Markets Inc.;
(b) if to you, initially at the respective addresses set forth in
the Purchase Agreement; and
(c) if to the Issuer, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given at the time delivered personally, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day, if timely delivered to a nationally recognized air
courier guaranteeing overnight delivery.
The Initial Purchaser or the Issuer by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent, by the
Issuer and subsequent Holders of Notes and Exchange Notes. The Issuer hereby
agrees to extend the benefits of this Agreement to any Holder of Notes or
Exchange Notes, and any such Holder may specifically enforce the provisions of
this Agreement as if an original party hereto; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Notes or Exchange Notes in violation of the terms of the Indenture or
Purchase Agreement.
12. Counterparts. This Agreement may be in signed counterparts, each
of which shall be an original and all of which together shall constitute one and
the same agreement.
13. Headings. The headings used herein are for convenience only and
shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
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15. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted with respect to the Notes and
Exchange Notes. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
16. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
17. Notes Held by the Issuer, etc. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Notes or Exchange
Notes is required hereunder, Notes or Exchange Notes, as applicable, held by the
Issuer or its Affiliates (other than subsequent Holders of Notes or Exchange
Notes if such subsequent Holders are deemed to be Affiliates solely by reason of
their holdings of such Notes or Exchange Notes) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
18. Submission to Jurisdiction. By the execution and delivery of
this Agreement, the Issuer submits to the non-exclusive jurisdiction of any
federal or state court in the State of New York in any suit or proceeding
arising out of or relating to this Agreement or brought under federal or state
securities laws. By receiving the rights and benefits under this Agreement, each
Holder also submits to the non-exclusive jurisdiction of any federal or state
court in the State of New York in any suit or proceeding arising out of or
relating to this Agreement or brought under federal or state securities laws.
[Signature Page Follows]
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[signature page to Registration Rights Agreement]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Issuer and the Initial Purchaser.
Very truly yours,
PHARMA SERVICES INTERMEDIATE HOLDING CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
SCHEDULE I
Initial Purchaser:
Citigroup Global Markets Inc.
Sch. I-1
ANNEX A
Each Broker-Dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The letter of
transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a Broker-Dealer in connection with resales of
Exchange Notes received in exchange for Notes where such Notes were acquired by
such Broker-Dealer as a result of market-making activities or other trading
activities. The Issuer has agreed that, starting on the expiration date and
ending on the close of business 90 days after the expiration date, it will make
this Prospectus available to any Broker-Dealer for use in connection with any
such resale. See "Plan of Distribution."
A-1
ANNEX B
Each Broker-Dealer that receives Exchange Notes for its own account
in exchange for Notes, where such Notes were acquired by such Broker-Dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
B-1
ANNEX C
Plan of Distribution
Each Broker-Dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Issuer has agreed that, starting on
the expiration date and ending on the close of business 90 days after the
expiration date, it will make this Prospectus, as amended or supplemented,
available to any Broker-Dealer for use in connection with any such resale. In
addition, until __________, 200__, all dealers effecting transactions in the
Exchange Notes may be required to deliver a prospectus.
The Issuer will not receive any proceeds from any sale of Exchange
Notes by Broker-Dealers. Exchange Notes received by Broker-Dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
Broker-Dealer and/or the purchasers of any such Exchange Notes. Any
Broker-Dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Act and any profit of any such resale of
Exchange Notes and any commissions or concessions received by any such Persons
may be deemed to be underwriting compensation under the Act. The letter of
transmittal states that by acknowledging that it will deliver and by delivering
a prospectus, a Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
For a period of 90 days after the Expiration Date, the Issuer will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the letter of transmittal. The Issuer has agreed to pay all expenses incident
to the Exchange Offer (including the expenses of one counsel for the holder of
the Notes) other than commissions or concessions of any brokers or dealers and
will indemnify the holders of the Notes (including any Broker-Dealers) against
certain liabilities, including liabilities under the Act.
C-1
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name: _________________________________________
Address: ______________________________________
______________________________________
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Notes in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of Exchange Notes
and it has no arrangements or understandings with any Person to participate in a
distribution of the Exchange Notes. If the undersigned is a Broker-Dealer that
will receive Exchange Notes for its own account in exchange for Notes, it
represents that the Notes to be exchanged for Exchange Notes were acquired by it
as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
D-1