REGISTRATION RIGHTS AGREEMENT by and among Centene Corporation and Banc of America Securities LLC Wachovia Capital Markets, LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated Dated as of March 22, 2007
Exhibit
10.1
by
and
among
Centene
Corporation
and
Banc
of America Securities LLC
Wachovia
Capital Markets, LLC
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Dated
as
of March 22, 2007
This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
March 22, 2007, by and between Centene Corporation, a Delaware corporation
(the
“Company”) and Banc of America Securities LLC, Wachovia Capital Markets, LLC and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as representatives of
the initial purchasers named on Schedule A to the Purchase Agreement (as
defined
below) (collectively, the “Initial Purchasers”), who has agreed to purchase the
Company’s 7 ¼% Senior Notes due 2014 (the “Initial Notes”) pursuant to the
Purchase Agreement. The Initial Notes are herein collectively referred to
as the
“Initial Securities.”
This
Agreement is made pursuant to the Purchase Agreement, dated March 15, 2007
(the
“Purchase Agreement”), between the Company and the Initial Purchasers (i) for
the benefit of the Initial Purchasers and (ii) for the benefit of the holders
from time to time of the Initial Securities, including the Initial Purchasers.
In order to induce the Initial Purchasers to purchase the Initial Securities,
the Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to
the
obligations of the Initial Purchasers set forth in the Purchase
Agreement.
The
parties hereby agree as follows:
Section
1. Definitions.
As
used
in this Agreement, the following capitalized terms shall have the following
meanings:
Additional
Interest Payment Date: With
respect to the Initial Securities, each Interest Payment Date.
Blackout
Period:
As
defined in Section 4(c) hereof.
Broker-Dealer:
Any
broker or dealer registered under the Exchange Act.
Business
Day:
Any day
other than a Saturday, Sunday or U.S. federal holiday or a day on which banking
institutions or trust companies located in New York, New York are authorized
or
obligated to be closed.
Closing
Date: The
date
of this Agreement.
Commission:
The
Securities and Exchange Commission.
Consummate:
A
registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement relating to the
Exchange Securities to be issued in the Exchange Offer, (ii) the maintenance
of
such Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to
the
Registrar under the Indenture of Exchange Securities in the same aggregate
principal amount as the aggregate principal amount of Initial Securities
that
were tendered by Holders thereof pursuant to the Exchange
Offer.
Effectiveness
Target Date: As
defined in Section 5 hereof.
Exchange
Act: The
Securities Exchange Act of 1934, as amended.
Exchange
Offer: The
registration by the Company under the Securities Act of the Exchange Securities
pursuant to a Registration Statement under to which the Company offers the
Holders of all outstanding Transfer Restricted Securities the opportunity
to
exchange all such outstanding Transfer Restricted Securities held by such
Holders for Exchange Securities in an aggregate principal amount equal to
the
aggregate principal amount of the Transfer Restricted Securities tendered
in
such exchange offer by such Holders.
Exchange
Offer Registration Statement: The
Registration Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt
Resales: The
transactions in which the Initial Purchasers propose to sell the Initial
Securities to certain “qualified institutional buyers,” as such term is defined
in Rule 144A under the Securities Act and to certain non-U.S. persons pursuant
to Regulation S under the Securities Act.
Exchange
Securities: The
7 ¼%
Senior Notes due 2014, issued as part of the same series under the Indenture
as
the Initial Notes, to be issued to Holders in exchange for Transfer Restricted
Securities pursuant to this Agreement.
Holders:
As
defined in Section 2(b) hereof.
Indemnified
Holder: As
defined in Section 8(a) hereof.
Indenture:
The
Indenture, dated as of March 22, 2007, by and between the Company, and The
Bank
of New York, as trustee (the “Trustee”), pursuant to which the Initial
Securities and the Exchange Securities are to be issued, as such Indenture
is
amended or supplemented from time to time in accordance with the terms
thereof.
Initial
Purchasers: As
defined in the preamble hereto.
Initial
Notes: As
defined in the preamble hereto.
Initial
Placement: The
issuance and sale by the Company of the Initial Securities to the Initial
Purchasers pursuant to the Purchase Agreement.
Initial
Securities: As
defined in the preamble hereto.
Interest
Payment Date: As
defined in the Indenture and the Securities.
NASD:
National
Association of Securities Dealers Inc.
Person:
An
individual, partnership, corporation, trust or unincorporated organization,
or a
government or agency or political subdivision thereof.
Prospectus:
The
prospectus included in a Registration Statement, as amended or supplemented
by
any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into
such
Prospectus.
Registration
Default: As
defined in Section 5 hereof.
Registration
Statement: Any
registration statement of the Company relating to (a) an offering of Exchange
Securities pursuant to an Exchange Offer or (b) the registration for resale
of
Transfer Restricted Securities pursuant to a Shelf Registration Statement,
which
is filed pursuant to the provisions of this Agreement, in each case, including
the Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material incorporated
by reference therein.
Securities
Act: The
Securities Act of 1933, as amended.
Shelf
Filing Deadline: As
defined in Section 4(a) hereof.
Shelf
Registration Statement: As
defined in Section 4(a) hereof.
Trust
Indenture Act: The
Trust
Indenture Act of 1939, as amended.
Transfer
Restricted Securities: Each
Initial Security, until the earliest to occur of (a) the date on which such
Initial Security is exchanged in the Exchange Offer for an Exchange Security
entitled to be resold to the public by the Holder thereof without complying
with
the prospectus delivery requirements of the Securities Act, (b) the date
on
which such Initial Security has been effectively registered under the Securities
Act and disposed of in accordance with a Shelf Registration Statement and
(c)
the date on which such Initial Security is distributed to the public pursuant
to
Rule 144 under the Securities Act or by a Broker-Dealer pursuant to the “Plan of
Distribution” contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein).
Underwritten
Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter
for
reoffering to the public.
Section
2. Securities
Subject to this Agreement.
(a)
Transfer
Restricted Securities. The
securities entitled to the benefits of this Agreement are the Transfer
Restricted Securities.
(b)
Holders
of Transfer Restricted Securities. A
Person
is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”)
whenever such Person owns Transfer Restricted Securities.
Section
3. Registered
Exchange Offer.
(a)
Unless the Exchange Offer shall not be permissible under applicable law or
Commission policy (after the procedures set forth in Section 6(a) hereof
have
been complied
with),
the Company shall (i) use its commercially reasonable efforts to file with
the
Commission as soon as practicable after the Closing Date, but in no event
later
than 90 days after the Closing Date (or if such 90th day is not a Business
Day,
the next succeeding Business Day), a Registration Statement under the Securities
Act relating to the Exchange Securities and the Exchange Offer, (ii) use
its
commercially reasonable efforts to cause such Registration Statement to become
effective at the earliest possible time, but in no event later than 180 days
after the Closing Date (or if such 180th day is not a Business Day, the next
succeeding Business Day), (iii) in connection with the foregoing, file (A)
all
pre-effective amendments to such Registration Statement as may be necessary
in
order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary filings
in
connection with the registration and qualification of the Exchange Securities
to
be made under the state securities or blue sky laws of such jurisdictions
as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Registration Statement, commence the Exchange Offer.
The
Exchange Offer shall be on the appropriate form permitting registration of
the
Exchange Securities to be offered in exchange for the Transfer Restricted
Securities and to permit resales of Initial Securities held by Broker-Dealers
as
contemplated by Section 3(c) hereof.
(b)
The
Company shall cause the Exchange Offer Registration Statement to be effective
continuously and shall keep the Exchange Offer open for not less than 30
calendar days and not more than 45 calendar days after the date notice of
the
Exchange Offer is mailed to the Holders, but in no event shall the Exchange
Offer open for a period of less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer.
The Company shall cause the Exchange Offer to comply with all applicable
federal
and state securities laws. No securities other than the Exchange Securities
shall be included in the Exchange Offer Registration Statement. The Company
shall use its commercially reasonable efforts to cause the Exchange Offer
to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 45
Business Days after the effectiveness of the Exchange Offer Registration
Statement.
(c)
The
Company shall indicate in a “Plan of Distribution” section contained in the
Prospectus forming a part of the Exchange Offer Registration Statement that
any
Broker-Dealer who holds Initial Securities that are Transfer Restricted
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Initial Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an “underwriter” within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Securities
received by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement. Such “Plan of
Distribution” section shall also contain all other information with respect to
such resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such “Plan of Distribution” shall not
name any such Broker-Dealer or disclose the amount of Initial
Securities
held
by
any such Broker-Dealer except to the extent required by the Commission as
a
result of a change in policy after the date of this Agreement.
The
Company shall use its commercially reasonable efforts to keep the Exchange
Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) hereof to the extent necessary
to
ensure that it is available for resales of Initial Securities acquired by
Broker-Dealers for their own accounts as a result of market-making activities
or
other trading activities, and to ensure that it conforms with the requirements
of this Agreement, the Securities Act and the policies, rules and regulations
of
the Commission as announced from time to time, for a period ending on the
earlier of (i) 180 days from the date on which the Exchange Offer Registration
Statement is declared effective and (ii) the date on which a Broker-Dealer
is no
longer required to deliver a prospectus in connection with market-making
or
other trading activities.
The
Company shall provide sufficient copies of the latest version of such Prospectus
to Broker-Dealers promptly upon request at any time during such 180-day (or
shorter as provided in the foregoing sentence) period in order to facilitate
such resales.
Section
4. Shelf
Registration.
(a)
Shelf
Registration. If
(i)
the Company is not required to file an Exchange Offer Registration Statement
or
to Consummate the Exchange Offer because the Exchange Offer is not permitted
by
applicable law or Commission policy (after the procedures set forth in
Section
6(a) hereof have been complied with), (ii) for any reason the Exchange
Offer is
not Consummated within 45 Business Days after the effectiveness of the
Exchange
Offer Registration Statement, or (iii) any
Holder of Transfer Restricted Securities
shall
notify the Company in writing prior to the 20th
day
following Consummation of the Exchange Offer that
(A) such
Holder is prohibited by applicable law or Commission policy from participating
in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder,
or
(C) such Holder is a Broker-Dealer and holds Initial Securities acquired
directly from the Company or one of its affiliates, then, upon such Holder’s
request, the Company shall,at its expense,
(x)
use
its commercially reasonable efforts to cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities Act, which may be an
amendment to the Exchange Offer Registration Statement (in either event,
the
“Shelf Registration Statement”) on or prior to the 60th calendar day after such
filing obligation arises (or if such 60th day is not a Business Day, the
next
succeeding Business Day), such date being the “Shelf Filing Deadline,” which
Shelf Registration Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have provided the information
required pursuant to Section 4(b) hereof; and
(y)
use
its commercially reasonable efforts to cause such Shelf Registration Statement
to be declared effective by the Commission on or before the 180th
calendar
day
after
the Shelf Filing Deadline (or if such 180th day is not a Business Day,
the next
succeeding Business Day).
The
Company shall use its commercially reasonable efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended,
except
during any Blackout Period permitted by Section 4(c) hereof, as required
by and
subject to the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Initial Securities
by
the Holders of Transfer Restricted Securities entitled to the benefit of
this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of
the
Commission as announced from time to time, for a period of at least two
years
following the Closing Date
(or
shorter period that will terminate when all the Transfer Restricted Securities
covered by such Shelf Registration Statement have been sold pursuant to
such
Shelf Registration Statement).
(b)
Provision
by Holders of Certain Information in Connection with the Shelf Registration
Statement. No
Holder
of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement
unless
and until such Holder furnishes to the Company in writing, within 20 Business
Days after receipt of a request therefor, such information as the Company
may
reasonably request for use in connection with any Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein. Each Holder as
to
which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order
to
make the information previously furnished to the Company by such Holder not
materially misleading.
(c)
Blackout Period.
Notwithstanding anything to the contrary in this Agreement, the Company,
upon
notice to the Holders of Transfer Restricted Securities, as provided in the
last
paragraph of Section 6 hereof, may suspend the use of the Prospectus included
in
any Shelf Registration Statement upon the happening of an event contemplated
by
Section 6(c)(iii)(D) hereof for a period of time (“Blackout Period”) not to
exceed an aggregate of 90 days in any twelve month period; provided,
that,
upon
the termination of such Blackout Period, the Company shall notify the Holders
of
Transfer Restricted Securities that such Blackout Period has been
terminated.
Section
5. Additional
Interest.
If
either
(a) the Exchange Offer Registration Statement is not filed with the Commission
on or prior to the 90th calendar day following the Closing Date, (b) the
Exchange Offer Registration Statement is not declared effective on or prior
to
the 180th calendar day following the Closing Date, (c) the Exchange Offer
is not
consummated on or prior to the 45th Business Day after the effectiveness
of the
Exchange Offer Registration Statement, (d) a Shelf Registration Statement
is not
filed or declared effective when required, or (e) a Registration Statement
is
declared effective as required but thereafter fails to remain effective or
useable in connection with resales for more than 30 calendar days (each such
event referred to in clauses (a) through (e) above, a “Registration Default”),
the Company will pay additional interest (“Additional Interest”) in cash to each
Holder of Transfer Restricted Securities with respect to
the
first
90-day period immediately following the occurrence of the first Registration
Default in an amount equal to $0.05 per week per $1,000 principal amount
of
Transfer Restricted Securities held by such Holder. The amount of the Additional
Interest will increase by an additional $0.05 per week per $1,000 principal
amount of Transfer Restricted Securities with respect to each subsequent
90-day
period until all Registration Defaults have been cured, up to a maximum amount
of Additional Interest for all Registration Defaults of $0.50 per week per
$1,000 principal amount of Transfer Restricted Securities. Following the
cure of
all Registration Defaults, all Additional Interest will cease to accrue and
the
interest rate on the notes will revert to the original rate; provided, however,
that if after the date of such additional interest ceases to accrue, a different
Registration Default occurs, Additional Interest may again commence accruing
pursuant to the foregoing provision.
All
obligations of the Company set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Security at the time
such
security ceases to be a Transfer Restricted Security shall survive until
such
time as all such obligations with respect to such security shall have been
satisfied in full.
Section
6. Registration
Procedures.
(a)
Exchange
Offer Registration Statement. In
connection with the Exchange Offer, the Company shall comply with all of
the
provisions of Section 6(c) hereof, shall use commercially reasonable efforts
to
effect such exchange to permit the sale of Transfer Restricted Securities
being
sold in accordance with the intended method or methods of distribution thereof,
and shall comply with all of the following provisions:
(i)
If in the
reasonable opinion of counsel to the Company there is a question as to
whether
the Exchange Offer is permitted by applicable law, the Company hereby agrees
to
use its commercially reasonable best efforts to seek a no-action letter
or other
favorable decision from the Commission allowing the Company to Consummate
an
Exchange Offer for such Initial Securities. The Company hereby agrees to
use its
commercially reasonable best efforts to pursue the issuance of such a decision
to the Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy or
to
obtain such no-action letter or other favorable decision.
The
Company hereby agrees, however, to (A) participate in telephonic conferences
with the Commission, (B) deliver to the Commission staff an analysis prepared
by
counsel to the Company setting forth the legal bases, if any, upon which
such
counsel has concluded that such an Exchange Offer should be permitted and
(C)
diligently pursue a favorable resolution by the Commission staff of such
submission.
(ii)
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 (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the
effect that (A) it is not an affiliate of the Company, (B) at the commencement
of the Exchange Offer, it has no arrangement with any person to participate
in
the distribution within the meaning of the Securities Act
of
the
Exchange Notes, and (C) it is acquiring the Exchange Securities in its ordinary
course of business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company’s 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 Commission policy as in effect on the date of this Agreement rely
on
the position of the Commission enunciated in ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and Co., Inc.
(available June 5, 1991) and Exxon
Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission’s letter to Shearman
& Sterling dated July 2, 1993, and similar no-action letters (which may
include any no-action letter obtained pursuant to clause (i) above), 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
Securities obtained by such Holder in exchange for Initial Securities acquired
by such Holder directly from the Company.
(b)
Shelf
Registration Statement. In
connection with the Shelf Registration Statement, the Company shall comply
with
all the provisions of Section 6(c) hereof and, except during any Blackout
Period
permitted by Section 4(c) hereof, use commercially reasonable efforts to
effect
such registration to permit the sale of the Transfer Restricted Securities
being
sold in accordance with the intended method or methods of distribution
thereof.
(c)
General
Provisions. In
connection with any Registration Statement and any Prospectus required by
this
Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the related
Prospectus required to permit resales of Initial Securities by Broker-Dealers),
the Company shall:
(i)
use
its commercially reasonable efforts to keep such Registration Statement
continuously effective, except during any Blackout Period permitted by Section
4(c) hereof, and provide all requisite financial statements for the period
specified in Section 3 or 4 hereof, as applicable; upon the occurrence of
any
event that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B)
not
to be effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company shall, other than during
any
Blackout Period permitted by Section 4(c) hereof, file promptly an appropriate
amendment to such Registration Statement, in the case of clause (A), correcting
any such misstatement or omission, and, in the case of either clause (A)
or (B),
use its commercially reasonable efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable
thereafter;
(ii)
prepare and file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may be necessary to
keep
such Registration Statement effective for the applicable period set forth
in
Section 3 or 4
hereof,
as applicable, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been sold;
cause the Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Securities
Act, and to comply fully with the applicable provisions of Rules 424 and
430A
under the Securities Act in a timely manner; and comply with the provisions
of
the Securities Act with respect to the disposition of all securities covered
by
such Registration Statement during the applicable period in accordance with
the
intended method or methods of distribution by the sellers thereof set forth
in
such Registration Statement or supplement to the Prospectus;
(iii)
advise the underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, to confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request
by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of
the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction,
or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any statement
of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in
the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or blue sky laws, the Company
shall
use its commercially reasonable efforts to obtain the withdrawal or lifting
of
such order at the earliest possible time;
(iv)
furnish without charge to each of the Initial Purchasers, each selling Holder
named in any Registration Statement, and each of the underwriter(s), if any,
before filing with the Commission, copies of any Registration Statement or
any
Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents incorporated
by
reference after the initial filing of such Registration Statement), which
documents will be subject to the review and comment of such Holders and
underwriter(s) in connection with such sale, if any, for a period of at least
five Business Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by reference)
to which an Initial Purchaser of Transfer Restricted Securities covered by
such
Registration Statement or the underwriter(s), if any, shall reasonably object
in
writing within five Business Days after the receipt thereof (such objection
to
be deemed timely made upon confirmation of telecopy transmission within such
period). The objection of an Initial
Purchaser
or underwriter, if any, shall be deemed to be reasonable if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed
to be
filed, contains a material misstatement or omission;
(v)
promptly prior to the filing of any document that is to be incorporated
by
reference into a Registration Statement or Prospectus, provide copies of
such
document to the Initial Purchasers, each selling Holder named in any
Registration Statement, and to the underwriter(s), if any, make the Company’s
representatives available at reasonable times for discussion of such document
and other customary due diligence matters, and include such information
in such
document prior to the filing thereof as such selling Holders or underwriter(s),
if any, reasonably may request;
(vi) make available at reasonable business hours in the offices where such records are normally maintained for inspection by the Initial Purchasers, the managing underwriter(s), if any, participating in any disposition pursuant to such Registration Statement and any attorney or accountant retained by such Initial Purchasers or any of the underwriter(s), all relevant financial and other records, pertinent corporate documents and documents relating to relevant properties of the Company, subject to confidentiality agreements in form reasonably acceptable to the Company and the Initial Purchasers, and cause the Company’s officers, directors and employees to supply all information that is reasonably requested by any such Holder, underwriter, attorney or accountant in connection with such Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness and to participate in meetings with investors to the extent requested by the managing underwriter(s), if any;
(vii)
if
requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as
such
selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to
the
“Plan of Distribution” of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being
sold to
such underwriter(s), the purchase price being paid therefor and any other
terms
of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified
of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(viii)
cause the Transfer Restricted Securities covered by the Registration Statement
to be rated with the appropriate rating agencies, if so requested by the
Holders
of a majority in aggregate principal amount of Securities covered thereby
or the
underwriter(s), if any;
(ix)
furnish to each Initial Purchaser, each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment thereto,
including financial
statements
and schedules, all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(x)
deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons reasonably may request;
the Company hereby consents to the use of the Prospectus and any amendment
or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or
supplement thereto;
(xi)
enter into such agreements (including an underwriting agreement containing
customary terms), and make such representations and warranties, and take
all
such other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such extent
as may
be reasonably requested by any Initial Purchaser or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or not
the
registration is an Underwritten Registration, the Company shall:
(A)
furnish to the Initial Purchasers, each selling Holder and each underwriter,
if
any, in such substance and scope as they may request and as are customarily
made
by issuers to underwriters in primary underwritten offerings, upon the date
of
the Consummation of the Exchange Offer or, if applicable, the effectiveness
of
the Shelf Registration Statement:
(1)
a
certificate, dated the date of Consummation of the Exchange Offer or the
date of
effectiveness of the Shelf Registration Statement, as the case may be, signed
by
(y) the President or any Vice President and (z) a principal financial or
accounting officer of the Company confirming, as of the date thereof, the
matters set forth in paragraph Section 5(d) of the Purchase Agreement and
such
other matters as such parties may reasonably request;
(2)
an
opinion, dated the date of Consummation of the Exchange Offer or the date
of
effectiveness of the Shelf Registration Statement, as the case may be, of
counsel for the Company covering the matters set forth in Section 5(a) of
the
Purchase Agreement and such other matter as such parties may reasonably request,
and in any event including a statement to the effect that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the Company
representatives of the underwriter(s), if any, and counsel to the
underwriter(s), if any, in connection with the preparation of such Registration
Statement and the related Prospectus and have considered the matters required
to
be stated
therein
and the statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on the basis of the foregoing,
no facts came to such counsel’s attention that caused such counsel to believe
that the applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became effective, and,
in the
case of the Exchange Offer Registration Statement, as of the date of
Consummation, contained an untrue statement of a material fact or omitted
to
state a material fact required to be stated therein or necessary to make
the
statements therein not misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case of the opinion dated
the
date of Consummation of the Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein,
in light
of the circumstances under which they were made,
not
misleading. Without limiting the foregoing, such counsel may state further
that
such counsel assumes no responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial statements, notes
and
schedules and other financial data
included
in any Registration Statement contemplated by this Agreement or the related
Prospectus; and
(3)
a
customary comfort letter, dated the date of effectiveness of the Shelf
Registration Statement, from the Company’s independent accountants, in the
customary form and covering matters of the type customarily requested to
be
covered in comfort letters by underwriters in connection with primary
underwritten offerings, and covering or affirming the matters set forth in
the
comfort letters delivered pursuant to Sections 5(e) and 5(g) of the Purchase
Agreement, without exception;
(B)
set
forth in full or incorporate by reference in the underwriting agreement,
if any,
the indemnification provisions and procedures of Section 8 hereof with respect
to all parties to be indemnified pursuant to said Section; and
(C)
deliver such other documents and certificates as may be reasonably requested
by
such parties to evidence compliance with Section 6(c)(xi)(A) hereof and with
any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company pursuant to this Section 6(c)(xi), if
any.
If
at any
time the representations and warranties of the Company contemplated in Section
6(c)(xi)(A)(1) hereof cease to be true and correct, the Company shall so
advise
the Initial Purchasers and the underwriter(s), if any, and each selling Holder
promptly and, if requested by such Persons, shall confirm such advice in
writing;
(xii)
prior to any public offering of Transfer Restricted Securities, cooperate
with
the selling Holders, the underwriter(s), if any, and their respective counsel
in
connection with the registration and qualification of the Transfer Restricted
Securities under the state securities or blue sky laws of such jurisdictions
as
the selling Holders or underwriter(s), if any, may request and do any and
all
other acts or things necessary or advisable to enable the disposition in
such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided,
however,
that
the Company shall not be required to register or qualify as a foreign
corporation where it is not then so qualified or to take any action that
would
subject it to the service of process in suits or to taxation, other than
as to
matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not then so subject;
(xiii)
shall issue, upon the request of any Holder of Initial Securities covered
by the
Shelf Registration Statement, Exchange Securities having an aggregate principal
amount equal to the aggregate principal amount of Initial Securities surrendered
to the Company by such Holder in exchange therefor or being sold by such
Holder;
such Exchange Securities to be registered in the name of such Holder or in
the
name of the purchaser(s) of such Securities, as the case may be; in return,
the
Initial Securities held by such Holder shall be surrendered to the Company
for
cancellation;
(xiv)
cooperate with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends;
and
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any, may
request at least two Business Days prior to any sale of Transfer Restricted
Securities made by such Holders or underwriter(s);
(xv)
use
its commercially reasonable efforts to cause the Transfer Restricted Securities
covered by the Registration Statement to be registered with or approved by
such
other governmental agencies or authorities as may be necessary to enable
the
seller or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso
contained in Section 6(c)(xii) hereof;
(xvi)
if
any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist
or
have occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state
any
material fact necessary in order to make the statements therein not
misleading;
(xvii)
provide a CUSIP number for all Securities not later than the effective date
of
the Registration Statement covering such Securities and provide the Trustee
under the Indenture with printed certificates for such Securities which are
in a
form eligible for
deposit
with the Depository Trust Company and take all other action necessary to
ensure
that all such Securities are eligible for deposit with the Depository Trust
Company;
(xviii)
cooperate and assist in any filings required to be made with the NASD and
in the
performance of any due diligence investigation by any underwriter (including
any
“qualified independent underwriter”) that is required to be retained in
accordance with the rules and regulations of the NASD;
(xix)
otherwise use its commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its
security holders, as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm commitment
or
best efforts Underwritten Offering or (B) if not sold to underwriters in
such an
offering, beginning with the first month of the Company’s first fiscal quarter
commencing after the effective date of the Registration Statement;
(xx)
cause the Indenture to be qualified under the Trust Indenture Act not later
than
the effective date of the first Registration Statement required by this
Agreement, and, in connection therewith, cooperate with the Trustee and the
Holders of Securities to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of the
Trust
Indenture Act; and to execute and use its commercially reasonable efforts
to
cause the Trustee to execute, all documents that may be required to effect
such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner;
(xxi)
cause all Securities covered by the Registration Statement to be listed on
each
securities exchange or automated quotation system on which similar securities
issued by the Company are then listed if requested by the Holders of a majority
in aggregate principal amount of Initial Securities or the managing
underwriter(s), if any; and
(xxii)
provide promptly to each Holder upon request each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15 of the
Exchange Act.
Each
Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of any notice from the Company of the existence of any fact of the
kind
described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof,
or
until it is advised in writing (the “Advice”) by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus.
If so
directed by the Company, each Holder will
deliver
to the Company (at the Company’s expense) all copies, other than permanent file
copies then in such Holder’s possession, of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of
such
notice. In the event the Company shall give any such notice, the time period
regarding the effectiveness of such Registration Statement set forth in Section
3 or 4 hereof, as applicable, shall be extended by the number of days during
the
period from and including the date of the giving of such notice pursuant
to
Section 6(c)(iii)(D) hereof to and including the date when each selling Holder
covered by such Registration Statement shall have received the copies of
the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof
or
shall have received the Advice; provided,
however,
that no
such extension shall be taken into account in determining whether Additional
Interest is due pursuant to Section 5 hereof or the amount of such Additional
Interest, it being agreed that the Company’s option to suspend use of a
Registration Statement pursuant to this paragraph shall be treated as a
Registration Default for purposes of Section 5 hereof.
Section
7. Registration
Expenses.
(a)
All
expenses incident to the Company’s performance of or compliance with this
Agreement will be borne by the Company, regardless of whether a Registration
Statement becomes effective, including, without limitation: (i) all registration
and filing fees and expenses (including filings made by any Initial Purchaser
or
Holder with the NASD (and, if applicable, the fees and expenses of any
“qualified independent underwriter” and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state securities or blue sky laws; (iii) all
expenses of printing (including printing certificates for the Exchange
Securities to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Companyand, subject to Section 7(b) hereof, the Holders
of
Transfer Restricted Securities; (v) all application and filing fees in
connection with listing the Exchange Securities on a securities exchange
or
automated quotation system pursuant to the requirements thereof; and (vi)
all
fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The
Company will, in any event, bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees
and
expenses of any Person, including special experts, retained by the
Company.
(b)
In
connection with any Registration Statement required by this Agreement
(including, without limitation, the Exchange Offer Registration Statement
and
the Shelf Registration Statement), the Company will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities being tendered
in
the Exchange Offer and/or resold pursuant to the “Plan of Distribution”
contained in the Exchange Offer Registration Statement or registered pursuant
to
the Shelf Registration Statement, as applicable, for the reasonable fees
and
disbursements of not more than one counsel, who shall be chosen by the Holders
of a majority in principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.
Section
8. Indemnification.
(a)
The
Company agrees to indemnify and hold harmless (i) each Holder and (ii) each
Person, if any, who controls (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred
to in this clause (ii) being hereinafter referred to as a “controlling person”)
and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any Person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as
an
“Indemnified Holder”), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, judgments, actions and expenses
(including, without limitation, and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing, settling, compromising, paying
or
defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Holder), joint or several,
directly or indirectly caused by, related to, based upon, arising out of
or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (or any amendment
or
supplement thereto), or any omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by an untrue statement or omission or
alleged
untrue statement or omission that is made in reliance upon and in conformity
with information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein. This indemnity
agreement shall be in addition to any liability which the Company may otherwise
have.
In
case
any action or proceeding (including any governmental or regulatory investigation
or proceeding) shall be brought or asserted against any of the Indemnified
Holders with respect to which indemnity may be sought against the Company,
such
Indemnified Holder (or the Indemnified Holder controlled by such controlling
person) shall promptly notify the Company in writing; provided,
however,
that the
failure to give such notice shall not relieve the Company of its obligations
pursuant to this Agreement. Such Indemnified Holder shall have the right
to
employ its own counsel in any such action and the fees and expenses of such
counsel shall be paid, as incurred, by the Company (regardless of whether
it is
ultimately determined that an Indemnified Holder is not entitled to
indemnification hereunder). The Company shall not, in connection with any
one
such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of
more than one separate firm of attorneys (in addition to any local counsel)
at
any time for such Indemnified Holders, which firm shall be designated by
the
Holders. The Company shall be liable for any settlement of any such action
or
proceeding effected with the Company’s prior written consent, which consent
shall not be withheld unreasonably, and the Company agrees to indemnify and
hold
harmless any Indemnified Holder from and against any loss, claim, damage,
liability or expense by reason of any settlement of any action effected with
the
written consent of the Company. The Company shall not, without the prior
written
consent of each Indemnified Holder, settle or compromise or consent to the
entry
of judgment in or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Holder
is a
party thereto), unless such
settlement,
compromise, consent or termination includes an unconditional release of each
Indemnified Holder from all liability arising out of such action, claim,
litigation or proceeding.
(b)
Each
Holder of Transfer Restricted Securities agrees, severally and not jointly,
to
indemnify and hold harmless the Company and its directors, officers of the
Company who sign a Registration Statement, and any Person controlling (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) the Company, and the respective officers, directors, partners, employees,
representatives and agents of each such Person, to the same extent as the
foregoing indemnity from the Company to each of the Indemnified Holders,
but
only with respect to claims and actions based on information relating to
such
Holder furnished in writing by such Holder expressly for use in any Registration
Statement. In case any action or proceeding shall be brought against the
Company
or its directors or officers or any such controlling person in respect of
which
indemnity may be sought against a Holder of Transfer Restricted Securities,
such
Holder shall have the rights and duties given the Company and the Company
its
directors and officers and such controlling person shall have the rights
and
duties given to each Holder by the preceding paragraph.
(c)
If
the indemnification provided for in this Section 8 is unavailable to an
indemnified party under Section 8(a) or (b) hereof (other than by reason
of
exceptions provided in those Sections) in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to therein,
then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by
the
Company on the one hand, and the Holders, on the other hand, from the Initial
Placement (which in the case of the Company shall be deemed to be equal to
the
total gross proceeds to the Company from the Initial Placement), the amount
of
Additional Interest which did not become payable as a result of the filing
of
the Registration Statement resulting in such losses, claims, damages,
liabilities, judgments actions or expenses, and such Registration Statement,
or
if such allocation is not permitted by applicable law, the relative fault
of the
Company, on the one hand, and the Holders, on the other hand, in connection
with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and of the Indemnified
Holder
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission
or
alleged omission to state a material fact relates to information supplied
by the
Company, on the one hand, or the Indemnified Holders, on the other hand,
and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable
by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations
set
forth in the second paragraph of Section 8(a) hereof, any legal or other
fees or
expenses reasonably incurred by such party in connection with investigating
or
defending any action or claim.
The
Company and each Holder of Transfer Restricted Securities agree that it would
not be just and equitable if contribution pursuant to this Section 8(c) were
determined by pro rata allocation (even if the Holders 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 the immediately preceding paragraph. The amount paid or payable by
an
indemnified party as a result of the losses, claims, damages, liabilities
or
expenses referred to in the immediately preceding paragraph shall be deemed
to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of
this
▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Holders (and its related Indemnified Holders) shall
be
required to contribute, in the aggregate, any amount in excess of the amount
by
which the total discount received by such Holder with respect to the Initial
Securities 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. 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’ obligations to contribute pursuant to this
Section 8(c) are several in proportion to the respective principal amount
of
Initial Securities held by each of the Holders hereunder and not
joint.
Section
9. Rule
144A.The
Company hereby agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding, to make available to any Holder or beneficial
owner of Transfer Restricted Securities in connection with any sale thereof
and
any prospective purchaser of such Transfer Restricted Securities from such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Securities Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A under the Securities Act.
Section
10. Participation
in Underwritten Registrations. No
Holder
may participate in any Underwritten Registration hereunder unless such Holder
(a) 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 (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms
of such
underwriting arrangements.
Section
11. Selection
of Underwriters. The
Holders of Transfer Restricted Securities covered by the Shelf Registration
Statement who desire to do so may sell such Transfer Restricted Securities
in an
Underwritten Offering. In any such Underwritten Offering, the investment
banker(s) and managing underwriter(s) that will administer such offering
will be
selected by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities included in such offering; provided,
however,
that
such investment banker(s) and managing underwriter(s) must be reasonably
satisfactory to the Company.
Section
12. Miscellaneous.
(a)
Remedies.
The
Company hereby agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b)
No
Inconsistent Agreements. The
Company will not on or after the date of this Agreement enter into any agreement
with respect to its securities that is inconsistent with the rights granted
to
the Holders in this Agreement or otherwise conflicts with the provisions
hereof.
The Company has not previously entered into any agreement granting any
registration rights with respect to its securities to any Person. The rights
granted to the Holders hereunder do not in any way conflict with and are
not
inconsistent with the rights granted to the holders of the Company’s securities
under any agreement in effect on the date hereof.
(c)
Adjustments
Affecting the Securities. The
Company will not take any action, or permit any change to occur, with respect
to
the Securities that would materially and adversely affect the ability of
the
Holders to Consummate any Exchange Offer.
(d)
Amendments
and Waivers. The
provisions of this Agreement may not be amended, modified or supplemented,
and
waivers or consents to or departures from the provisions hereof may not be
given
unless the Company has (i) in the case of Section 5 hereof and this Section
12(d)(i), obtained the written consent of Holders of all outstanding Transfer
Restricted Securities and (ii) in the case of all other provisions hereof,
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities (excluding any Transfer
Restricted Securities held by the Company or its Affiliates). Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof
that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant
to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered;
provided,
however,
that,
with respect to any matter that directly or indirectly affects the rights
of any
Initial Purchaser hereunder, the Company shall obtain the written consent
of
each such Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.
(e)
Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(i)
if to
a Holder, at the address set forth on the records of the Registrar under
the
Indenture, with a copy to the Registrar under the Indenture; and
(ii)
if
to the Company:
Centene
Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier
No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention:
Chief Financial Officer
With
a
copy to:
▇▇▇▇▇ ▇▇▇▇ LLP
One
Metropolitan Square
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier
No.: 314-259-2020
Attention:
J. ▇▇▇▇ ▇▇▇▇▇▇
All
such
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next Business
Day,
if timely delivered to an air courier guaranteeing overnight
delivery.
Copies
of
all such notices, demands or other communications shall be concurrently
delivered by the Person giving the same to the Trustee at the address specified
in the Indenture.
(f)
Successors
and Assigns. This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties, including, without limitation, and without
the
need for an express assignment, subsequent Holders of Transfer Restricted
Securities; provided,
however,
that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g)
Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be
deemed
to be an original and all of which taken together shall constitute one and
the
same agreement.
(h)
Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(i)
Governing
Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES
THEREOF.
(j)
Severability.
In
the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(k)
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 by the Company with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
CENTENE
CORPORATION
By:
/s/ J. PER ▇▇▇▇▇▇
Senior
Vice President, Chief Financial Officer and Treasurer
The
foregoing Registration Rights Agreement is hereby confirmed and accepted
as of
the date first above written:
BANC
OF
AMERICA SECURITIES LLC
WACHOVIA
CAPITAL MARKETS, LLC
▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By: Banc
of
America Securities LLC
|
By:
|
/s/ ▇▇▇ ▇▇▇▇▇▇ |
Managing
Director