EXHIBIT (4)-2
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REGISTRATION RIGHTS AGREEMENT
Dated as of May 22, 2002
By and Among
HEALTHSOUTH CORPORATION,
as Issuer,
and
UBS WARBURG LLC,
DEUTSCHE BANK SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC,
SCOTIA CAPITAL (USA) INC.,
FIRST UNION SECURITIES, INC.,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
FLEET SECURITIES, INC.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
NATCITY INVESTMENTS, INC. and
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
as Initial Purchasers
7 5/8% Senior Notes due 2012
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Table of Contents
Page
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Section 1 Definitions..................................................1
Section 2 Exchange Offer...............................................4
Section 3 Shelf Registration...........................................7
(a) Shelf Registration.....................................7
(b) Subsequent Shelf Registrations.........................7
(c) Supplements and Amendments.............................8
Section 4 Additional Interest..........................................8
Section 5 Registration Procedures......................................9
Section 6 Registration Expenses.......................................17
Section 7 Indemnification.............................................18
Section 8 Rules 144 and 144A..........................................20
Section 9 Underwritten Registrations..................................21
Section 10 Miscellaneous...............................................21
(a) No Inconsistent Agreements............................21
(b) Adjustments Affecting Registrable Notes...............21
(c) Amendments and Waivers................................21
(d) Notices...............................................22
(e) Successors and Assigns................................22
(f) Counterparts..........................................22
(g) Headings..............................................23
(h) Governing Law.........................................23
(i) Severability..........................................23
(j) Securities Held by the Issuer or Its Affiliates.......23
(k) Third Party Beneficiaries.............................23
(l) Attorneys' Fees.......................................23
(m) Entire Agreement......................................23
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is dated as of
May 22, 2002, by and among HEALTHSOUTH CORPORATION, a Delaware corporation (the
"ISSUER"), on the one hand, and UBS WARBURG LLC, DEUTSCHE BANK SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC, SCOTIA CAPITAL (USA) INC., FIRST UNION
SECURITIES, INC., ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., FLEET SECURITIES, INC., ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ INC., NATCITY INVESTMENTS, INC. and ▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
(collectively, the "INITIAL PURCHASERS"), on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of May 22, 2002, among the Issuer and the Initial Purchasers
(the "PURCHASE AGREEMENT"), relating to the $1,000,000,000 aggregate principal
amount of the Issuer's 7 5/8% Senior Notes due 2012 (the "Notes"). The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligations to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
Section 1 Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"ADDITIONAL INTEREST" shall have the meaning set forth in SECTION 4(a)
hereof.
"ADVICE" shall have the meaning set forth in the final paragraph of
SECTION 5 hereof.
"AGREEMENT" shall have the meaning set forth in the introductory
paragraph hereto.
"APPLICABLE PERIOD" shall have the meaning set forth in SECTION 2(b)
hereof.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"COMMISSION" shall mean the Securities and Exchange Commission.
"DAY" means a calendar day.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in the second
paragraph of SECTION 3(a) hereof.
"EVENT DATE" shall have the meaning set forth in SECTION 4(b) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" shall have the meaning set forth in SECTION 2(a)
hereof.
"EXCHANGE OFFER" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning set
forth in SECTION 2(a) hereof.
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"HOLDER" shall mean any holder of a Registrable Note or Registrable
Notes.
"INDEMNIFIED PERSON" shall have the meaning set forth in SECTION 7(c)
hereof.
"INDEMNIFYING PERSON" shall have the meaning set forth in SECTION 7(c)
hereof.
"INDENTURE" shall mean the Indenture, dated as of May 22, 2002, by and
among the Issuer and The Bank of Nova Scotia Trust Company of New York, as
trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble
hereof.
"INITIAL SHELF REGISTRATION" shall have the meaning set forth in
SECTION 3(a) hereof.
"INSPECTORS" shall have the meaning set forth in SECTION 5(n) hereof.
"ISSUE DATE" shall mean May 22, 2002, the date of original issuance of
the Notes.
"ISSUER" shall have the meaning set forth in the introductory paragraph
hereto and shall also include the Issuer's permitted successors and assigns.
"LEGAL HOLIDAY" shall mean a Saturday, a Sunday, a federally recognized
holiday or a day on which banking institutions are not required to be open in
the State of New York.
"NASD" shall have the meaning set forth in SECTION 5(s) hereof.
"NOTES" shall have the meaning set forth in the second introductory
paragraph hereof.
"PARTICIPANT" shall have the meaning set forth in SECTION 7(a) hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
SECTION 2(b) hereof.
"PERSON" shall mean an individual, trustee, corporation, partnership,
joint stock company, trust, unincorporated association, union, business
association, firm, government or agency or political subdivision thereof or
other legal entity.
"PRIVATE EXCHANGE" shall have the meaning set forth in SECTION 2(b)
hereof.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in SECTION
2(b) hereof.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
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"PURCHASE AGREEMENT" shall have the meaning set forth in the second
introductory paragraph hereof.
"RECORDS" shall have the meaning set forth in SECTION 5(n) hereof.
"REGISTRABLE NOTES" shall mean each Note upon its original issuance and
at all times subsequent thereto, each Exchange Note as to which SECTION 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until (i) a Registration Statement (other than, with respect
to any Exchange Note as to which SECTION 2(c)(iv) hereof is applicable, the
Exchange Offer Registration Statement) covering such Note, Exchange Note or
Private Exchange Note has been declared effective by the Commission and such
Note, Exchange Note or such Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Registration Statement, (ii) such
Note has been exchanged pursuant to the Exchange Offer for one or more Exchange
Notes that may be resold without restriction under state and federal securities
laws, (iii) such Note, Exchange Note or Private Exchange Note, as the case may
be, ceases to be outstanding for purposes of the Indenture or (iv) the date on
which any such Note, Exchange Note or Private Exchange Note is distributed to
the public pursuant to Rule 144 or is saleable pursuant to Rule 144(k) under the
Securities Act.
"REGISTRATION DEFAULT" shall have the meaning set forth in SECTION 4(a)
hereof.
"REGISTRATION STATEMENT" shall mean any appropriate registration
statement of the Issuer covering any of the Registrable Notes pursuant to the
provisions of this Agreement, including, but not limited to, the Exchange Offer
Registration Statement, filed with the Commission under the Securities Act, and
all amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"REQUESTING PARTICIPATING BROKER-DEALER" shall have the meaning set
forth in SECTION 2(b) hereof.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the Commission providing for offers and
sales of securities made in compliance therewith resulting in offers and sales
by subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
"RULE 144A" shall mean Rule 144A promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the Commission.
"RULE 415" shall mean Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
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"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"SHELF FILING EVENT" shall have the meaning set forth in SECTION 2(c)
hereof.
"SHELF REGISTRATION" shall have the meaning set forth in SECTION 3(b)
hereof.
"SUBSEQUENT SHELF REGISTRATION" shall have the meaning set forth in
SECTION 3(b) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"TRUSTEE" shall mean the trustee under the Indenture and the trustee
(if any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" shall mean a
registration in which securities of the Issuer are sold to an underwriter for
reoffering to the public.
Section 2 Exchange Offer. (a) The Issuer shall, at the Issuer's cost
(as set forth in SECTION 6 hereof), (i) file (or confidentially submit) a
Registration Statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") within 60
days after the Issue Date with the Commission on an appropriate registration
form with respect to a registered offer (the "EXCHANGE OFFER") to exchange any
and all of the Registrable Notes for a like aggregate principal amount of notes
(the "Exchange Notes") that are identical in all material respects to the Notes
(except that the Exchange Notes shall not contain terms with respect to transfer
restrictions or Additional Interest upon a Registration Default) and (ii) use
its reasonable best efforts to cause the Exchange Offer Registration Statement
to be declared effective under the Securities Act on or prior to 150 days after
the Issue Date and (iii) use its reasonable best efforts to consummate the
Exchange Offer on or prior to 180 days after the Issue Date. Upon the Exchange
Offer Registration Statement being declared effective by the Commission, the
Issuer will offer the Exchange Notes in exchange for surrender of the Notes. The
Issuer shall keep the Exchange Offer open for not less than 20 Business Days (or
longer if required by applicable law) after the date notice of the Exchange
Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be required to
represent to the Issuer in writing that (i) such Holder is not an affiliate of
the Issuer within the meaning of the Securities Act, (ii) any Exchange Notes to
be received by it will be acquired in the ordinary course of its business, (iii)
at the time of the commencement of the Exchange Offer such Holder will have no
arrangement or understanding with any Person to participate in the distribution
(as such term is used in the Securities Act) of the Exchange Notes in violation
of the provisions of the Securities Act, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes and (v) if such Holder is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities, it will
deliver a Prospectus in connection with any resale of such Exchange Notes.
Upon consummation of the Exchange Offer in accordance with this SECTION
2, the provisions of this Agreement shall continue to apply, mutatis mutandis,
solely with respect to Registrable Notes that are Private Exchange Notes,
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Exchange Notes as to which SECTION 2(c)(iv) is applicable and Exchange Notes
held by Participating Broker-Dealers, and the Issuer shall have no further
obligation to register Registrable Notes (other than Private Exchange Notes and
other than in respect of any Exchange Notes as to which SECTION 2(c)(iv) hereof
applies) pursuant to SECTION 3 hereof. No securities other than the Exchange
Notes shall be included in the Exchange Offer Registration Statement.
(b) The Issuer and the Initial Purchasers acknowledge that the
staff of the Commission has taken the position that any broker-dealer that
elects to exchange Notes that were acquired by such broker-dealer for its own
account as a result of market-making or other trading activities for Exchange
Notes in the Exchange Offer (a "PARTICIPATING BROKER-DEALER") may be deemed to
be an "underwriter" within the meaning of the Securities Act and must deliver a
Prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Issuer and the Initial Purchasers also acknowledge that it is the
staff of the Commission's position that if the Prospectus contained in the
Exchange Offer Registration Statement includes a plan of distribution containing
a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "REQUESTING PARTICIPATING BROKER-DEALER"), the Issuer agrees to
use its reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective for a period of up to 180 days after the date
on which the Exchange Offer Registration Statement is declared effective, or
such longer period if extended pursuant to the last paragraph of SECTION 5
hereof (such period, the "APPLICABLE PERIOD"), or such earlier date as all
Requesting Participating Broker-Dealers shall have notified the Issuer in
writing that such Requesting Participating Broker-Dealers have resold all
Exchange Notes acquired in the Exchange Offer. The Issuer shall include a plan
of distribution in such Exchange Offer Registration Statement that meets the
requirements set forth in the preceding paragraph.
If, prior to consummation of the Exchange Offer, any Holder holds any
Notes acquired by it that have, or that are reasonably likely to be determined
to have, the status of an unsold allotment in an initial distribution, or if any
Holder is not entitled to participate in the Exchange Offer, the Issuer upon the
request of any such Holder shall, simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in
exchange (the "PRIVATE EXCHANGE") for such Notes held by any such Holder, a like
principal amount of notes (the "PRIVATE EXCHANGE NOTES") of the Issuer that are
identical in all material respects to the Exchange Notes. The Private Exchange
Notes shall be issued pursuant to the same indenture as the Exchange Notes and
bear the same CUSIP number as the Exchange Notes.
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In connection with the Exchange Offer, the Issuer shall:
(1) mail to each Holder entitled to participate in the Exchange Offer a
copy of the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and related
documents;
(2) utilize the services of a depositary for the Exchange Offer with an
address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last Business Day on which the Exchange
Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws,
rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuer shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes Exchange Notes or Private Exchange Notes, as the case may be,
equal in principal amount to the Notes of such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the Commission, (ii) no action or proceeding shall have been
instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Issuer to proceed with the Exchange Offer
or the Private Exchange, and no material adverse development shall have occurred
in any existing action or proceeding with respect to the Issuer and (iii) all
governmental approvals shall have been obtained, which approvals the Issuer
deems necessary for the consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued under
(i) the Indenture or (ii) an indenture identical in all material respects to the
Indenture (in either case, with such changes as are necessary to comply with any
requirements of the Commission to effect or maintain the qualification thereof
under the TIA) and which, in either case, has been qualified under the TIA and
shall provide that the Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture or Additional Interest upon a
Registration Default. The Indenture or such indenture shall provide that, as to
each class of Notes under the Indenture, the Exchange Notes, the Private
Exchange Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange Notes, the Private Exchange Notes or the
Notes will have the right to vote or consent as a separate class on any matter.
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(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuer to
effect the Exchange Offer, (ii) if for any reason the Exchange Offer is not
consummated within 180 days after the Issue Date, (iii) any Holder of Private
Exchange Notes so requests; or (iv) in the case of any Holder that participates
in the Exchange Offer, such Holder does not receive Exchange Notes on the date
of the exchange that may be sold without restriction under federal securities
laws (other than due solely to the status of such Holder as an affiliate of the
Issuer within the meaning of the Securities Act) (each such event referred to in
clauses (i) through (iv) of this sentence, a "SHELF FILING EVENT"), then the
Issuer shall file a Shelf Registration pursuant to SECTION 3 hereof.
Section 3 Shelf Registration. If at any time a Shelf Filing Event shall
occur, then:
(a) Shelf Registration. The Issuer shall file with the Commission a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Notes not exchanged in the Exchange
Offer, Private Exchange Notes and Exchange Notes as to which SECTION 2(c)(iv) is
applicable (the "INITIAL SHELF REGISTRATION"). The Issuer shall use its
reasonable best efforts to file with the Commission the Initial Shelf
Registration as promptly as practicable, but in no event later than 45 days
after the Issuer has notice of the Shelf Filing Event. The Initial Shelf
Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in the manner or
manners designated by them (including, without limitation, one or more
underwritten offerings). The Issuer shall not permit any securities other than
the Registrable Notes to be included in the Initial Shelf Registration or any
Subsequent Shelf Registration.
The Issuer shall use its reasonable best efforts (x) to cause the
Initial Shelf Registration to be declared effective under the Securities Act on
or prior to the later of the 60th day after the Issuer has notice of the Shelf
Filing Event or the 180th day after the Issue Date and (y) to keep the Initial
Shelf Registration continuously effective under the Securities Act for the
period ending on the date which is two years from the Issue Date (the
"EFFECTIVENESS PERIOD"), or such shorter period ending when all Registrable
Notes covered by Shelf Registration have been sold in the manner set forth and
as contemplated in such Shelf Registration; provided, however, that the Issuer
may suspend the effectiveness of a Shelf Registration Statement by written
notice to the Holders for a period not to exceed 30 days in any calendar year if
(i) an event occurs and is continuing as a result of which the Shelf
Registration Statement would, in the Issuer's good faith judgment, contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading and (ii) (a) the Issuer
determines in good faith that the disclosure of such event at such time would
have a material adverse effect on the business, operations or prospects of the
Issuer and its subsidiaries, taken as a whole, or (b) the disclosure otherwise
relates to a previously undisclosed pending material business transaction, the
disclosure of which would impede the Issuer's ability to consummate such
transaction.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the securities registered thereunder), the Issuer shall use its reasonable
best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall as soon as practicable after such
cessation amend the Initial Shelf Registration or such Subsequent Shelf
Registration, as the case may be, in a manner to obtain the withdrawal of the
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order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Notes covered by and not sold under the Initial Shelf Registration or such
earlier Subsequent Shelf Registration (each, a "SUBSEQUENT SHELF REGISTRATION").
If a Subsequent Shelf Registration is filed, the Issuer shall use its reasonable
best efforts to cause the Subsequent Shelf Registration to be declared effective
under the Securities Act as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration and any Subsequent Shelf
Registration was previously continuously effective, or such shorter period
ending when all Registrable Notes covered by such Shelf Registration have been
sold in the manner set forth and as contemplated by such Shelf Registration. As
used herein, the term "SHELF REGISTRATION" means the Initial Shelf Registration
and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuer shall promptly supplement
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter of such Registrable
Notes.
Section 4 Additional Interest. (a) The Issuer and the Initial
Purchasers agree that the Holders will suffer damages if the Issuer fails to
fulfill its obligations under SECTION 2 or SECTION 3 hereof and that it would
not be feasible to ascertain the extent of such damages with precision.
Accordingly, in the event that:
(i) the Issuer does not file (or confidentially submit) with
the Commission on or prior to the 60th day following the Issue Date, or
cause to become effective on or prior to the 150th day following the
Issue Date, the Exchange Offer Registration Statement,
(ii) the Issuer is obligated to file the Initial Shelf
Registration and such Initial Shelf Registration is not filed with the
Commission on or prior to the 45th day following the date on which the
Issuer has notice of the Shelf Filing Event or such Initial Shelf
Registration is not declared effective on or prior to the later of the
60th day following the date on which the Issuer has notice of the Shelf
Filing Event or the 180th day following the Issue Date,
(iii) the Issuer fails to consummate the Exchange Offer on or
prior to the 180th day following the Issue Date, or
(iv) the Shelf Registration or the Exchange Offer Registration
Statement is declared effective but thereafter ceases to be declared
effective or usable in connection with resales of Registrable Notes
during the periods specified herein, except if the Shelf Registration
or the Exchange Offer Registration Statement ceases to be effective or
usable as specifically permitted herein or solely as a result of (x)
the filing of a post-effective amendment to such Shelf Registration to
incorporate annual audited financial information with respect to the
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Issuer where such post-effective amendment is not yet effective and
needs to be declared effective to permit holders to use the related
Prospectus or (y) other material events, with respect to the Issuer,
that would need to be described in such Shelf Registration or the
related Prospectus and, in the case of this clause (y), the Issuer is
proceeding promptly and in good faith to amend or supplement the Shelf
Registration or the Exchange Offer Registration Statement and related
Prospectus to describe such events
(each such event referred to in clauses (i) through (iv) above, a "REGISTRATION
DEFAULT"), then the Issuer shall pay, as liquidated damages, additional interest
("ADDITIONAL INTEREST") on the Registrable Notes in cash on each Interest
Payment Date (as defined in the Indenture) in an amount equal to one-quarter of
one percent (0.25%) per annum of the aggregate principal amount of the
Registrable Notes, with respect to the first 90-day period following such
Registration Default. The amount of such Additional Interest will increase by an
additional one-quarter of one percent (0.25%) to a maximum of one percent (1.0%)
per annum of the aggregate principal amount of the Registrable Notes for each
subsequent 90-day period until such Registration Default has been cured. Upon
(1) the filing (or confidential submission) of the Exchange Offer Registration
Statement after the 60-day period described in clause (i) above, (2) the
effectiveness of the Exchange Offer Registration Statement after the 150-day
period described in clause (i) above, (3) the filing (or confidential
submission) of the Initial Shelf Registration after the 45-day period described
in clause (ii) above, (4) the effectiveness of the Initial Shelf Registration
after the 60-day period or the 180-day period, as the case may be, described in
clause (ii) above, (5) the consummation of the Exchange Offer after the 180-day
period described in clause (iii) above, or (6) the cure of any Registration
Default described in clause (iv) above, the interest rate borne by the Notes
from the date of such filing, effectiveness or consummation, as the case may be,
will be reduced to the original interest rate if the Issuer is otherwise in
compliance with this paragraph; provided, however, that if, after any such
reduction in interest rate, a different event specified above occurs, the
interest rate may again be increased pursuant to the foregoing provisions.
(b) The Issuer shall notify the Trustee within one Business
Day after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "EVENT DATE"). Any amounts of
Additional Interest due pursuant to SECTION 4(a) hereof will be payable in cash
semi-annually on the Interest Payment Dates specified in the Indenture (to the
holders of record as specified in the Indenture), commencing with the first such
Interest Payment Date occurring after any such Additional Interest commences to
accrue. The amount of Additional Interest will be determined by multiplying the
applicable Additional Interest rate by the principal amount of the Registrable
Notes, multiplied by a fraction, the numerator of which is the number of days
such Additional Interest rate was applicable during such period (determined on
the basis of a 360-day year comprised of twelve 30-day months and, in the case
of a partial month, the actual number of days elapsed), and the denominator of
which is 360.
Section 5 Registration Procedures. In connection with the filing of any
Registration Statement pursuant to SECTION 2 or 3 hereof, the Issuer shall
effect such registrations to permit the sale of the securities covered thereby
in accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Issuer hereunder the Issuer shall:
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(a) Prepare and file (or confidentially submit) with the
Commission, a Registration Statement or Registration Statements as prescribed by
SECTION 2 or 3 hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that, if (1) such filing is pursuant to SECTION 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to SECTION 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Issuer shall furnish to and afford the Holders of the Registrable Notes
covered by such Registration Statement or each such Participating Broker-Dealer,
as the case may be, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including copies
of any documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least five Business Days prior to
such filing). The Issuer shall not file any Registration Statement or Prospectus
or any amendments or supplements thereto if the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case may be, their
counsel, or the managing underwriters, if any, shall reasonably object.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period or
the Applicable Period, as the case may be; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable law, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) promulgated under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act applicable to each of them with respect
to the disposition of all securities covered by such Registration Statement as
so amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus, in each case, in accordance with the intended
methods of distribution set forth in such Registration Statement or Prospectus,
as so amended. The Issuer shall be deemed not to have used its reasonable best
efforts to keep a Registration Statement effective during the Effectiveness
Period or the Applicable Period, as the case may be, relating thereto if the
Issuer voluntarily takes any action that would result in selling Holders of the
Registrable Notes covered thereby or Participating Broker-Dealers seeking to
sell Exchange Notes not being able to sell such Registrable Notes or such
Exchange Notes during that period unless such action is required by applicable
law; provided, however, that the Issuer may suspend the effectiveness of a
Registration Statement by written notice to the Holders or the Participating
Broker-Dealers for a period not to exceed 30 days in any calendar year if (i) an
event occurs and is continuing as a result of which the Registration Statement
would, in the Issuer's good faith judgment, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading and (ii) (a) the Issuer determines in good
faith that the disclosure of such event at such time would have a material
adverse effect on the business, operations or prospects of the Issuer and its
subsidiaries, taken as a whole, or (b) the disclosure otherwise relates to a
previously undisclosed pending material business transaction, the disclosure of
which would impede the Issuer's ability to consummate such transaction.
10
(c) If (1) a Shelf Registration is filed pursuant to SECTION 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to SECTION 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto, notify the selling Holders
of Registrable Notes, or each such Participating Broker-Dealer, as the case may
be, their counsel and the managing underwriters, if any, as promptly as
possible, and, if requested by any such Person, confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any Holder
may, upon request, obtain, at the sole expense of the Issuer, one conformed copy
of such Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose, (iii) if at any time when a Prospectus is
required by the Securities Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by Participating Broker-Dealers
the representations and warranties of the Issuer contained in any agreement
(including any underwriting agreement) contemplated by SECTION 5(m) hereof cease
to be true and correct in all respects (subject to any materiality qualifiers in
such representations and warranties), (iv) of the receipt by the Issuer of any
notification with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the Registrable Notes
or the Exchange Notes to be sold by any Participating Broker-Dealer for offer or
sale in any jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known to the Issuer that makes any statement made in
such Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in or amendments or supplements to
such Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any 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 and (vi)
of the Issuer's determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to SECTION 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to SECTION 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto, use its reasonable best
efforts to prevent the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from qualification) of
any of the Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any such
order is issued, to use its reasonable best efforts to obtain the withdrawal of
any such order at the earliest practicable moment.
11
(e) If (1) a Shelf Registration is filed pursuant to SECTION 3
hereof and if requested by the managing underwriter or underwriters (if any), or
the Holders of a majority in aggregate principal amount of the Registrable Notes
being sold in connection with an underwritten offering, or (2) a Prospectus
contained in the Exchange Offer Registration Statement filed pursuant to SECTION
2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto and if requested by any Participating
Broker-Dealer, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters (if any), such Holders or any Participating Broker-Dealer (based
upon advice of counsel) determine is reasonably necessary to be included
therein, (ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Issuer has received
notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment; provided, however, that the Issuer shall not be
required to take any action hereunder that would, in the written opinion of
counsel to the Issuer, violate applicable laws and (iii) supplement or make
amendments to such Registration Statement (based upon advice of counsel).
(f) If (1) a Shelf Registration is filed pursuant to SECTION 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to SECTION 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto, furnish to each selling
Holder of Registrable Notes and to each such Participating Broker-Dealer who so
requests and to counsel and each managing underwriter, if any, at the sole
expense of the Issuer, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to SECTION 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to SECTION 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto, deliver to each selling
Holder of Registrable Notes, or each such Participating Broker-Dealer, as the
case may be, their respective counsel, and the underwriter or underwriters, if
any, at the sole expense of the Issuer, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each amendment
or supplement thereto and any documents incorporated by reference therein as
such Persons may reasonably request; and, subject to the last paragraph of this
SECTION 5, the Issuer hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of Registrable
Notes or each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Notes covered by, or the sale by
Participating Broker-Dealers of the Exchange Notes pursuant to, such Prospectus
and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Offer Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use its reasonable best efforts to register or qualify, and
to cooperate with the selling Holders of Registrable Notes or each such
12
Participating Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, such Registrable Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request; provided, however, that where Exchange Notes
held by Participating Broker-Dealers or Registrable Notes are offered other than
through an underwritten offering, the Issuer agrees to cause the Issuer's
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this SECTION 5(h); and keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the applicable Registration
Statement; provided, however, that the Issuer shall not be required to (A)
qualify generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or (C) subject
itself to taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to SECTION 3
hereof, cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may request at
least two Business Days prior to any sale of such Registrable Notes.
(j) Use its reasonable best efforts to cause the Registrable
Notes covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be reasonably necessary
to enable the seller or sellers thereof or the underwriter or underwriters, if
any, to consummate the disposition of such Registrable Notes, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Issuer will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals.
(k) If (1) a Shelf Registration is filed pursuant to SECTION 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to SECTION 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto, upon the occurrence of any
event contemplated by PARAGRAPH 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to SECTION 5(a) hereof) file with the
Commission, at the sole expense of the Issuer, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
13
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for the Registrable
Notes.
(m) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities similar
to the Notes and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants with,
the underwriters with respect to the business of the Issuer and its subsidiaries
(including any acquired business, properties or entity, if applicable) and the
Registration Statement, Prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, as are customarily made
by issuers to underwriters in underwritten offerings of debt securities similar
to the Notes (but in no event materially more extensive than those in the
Purchase Agreement), and confirm the same in writing if and when requested; (ii)
use its reasonable best efforts to obtain the written opinions of counsel to the
Issuer and written updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
the managing underwriter or underwriters (but in no event materially more
extensive than those required by the Purchase Agreement); (iii) use its
reasonable best efforts to obtain "cold comfort" letters and updates thereof in
form, scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Issuer
(and, if necessary, any other independent certified public accountants of 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 or
incorporated by reference in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings (but in no event materially more extensive than those
required by the Purchase Agreement); and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and procedures
no less favorable than those set forth in SECTION 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration Statement and
the managing underwriter or underwriters or agents) with respect to all parties
to be indemnified pursuant to said Section. The above shall be done at each
closing under such underwriting agreement, or as and to the extent required
thereunder.
(n) If (1) a Shelf Registration is filed pursuant to SECTION 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to SECTION 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period relating thereto, make available for
inspection by any selling Holder of such Registrable Notes being sold, or each
such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and any
14
attorney, accountant or other agent retained by any such selling Holder or each
such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "INSPECTORS"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent corporate
documents and instruments of the Issuer and its subsidiaries (collectively, the
"RECORDS") as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers, directors,
employees and agents of the Issuer and its subsidiaries to supply all
information reasonably requested by any such Inspector in connection with such
Registration Statement and Prospectus. Each Inspector shall agree in writing
that it will not disclose any records that the Issuer determines, in good faith,
to be confidential and that it notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement or Prospectus,
(ii) the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
information is necessary or advisable in connection with any action, claim, suit
or proceeding, directly or indirectly involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving this
Agreement or the Purchase Agreement, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder, or (iv) the information in such
Records has been made generally available to the public other than by an act or
a failure to act by a Holder or an Inspector in violation of this Agreement;
provided, however, that such Inspector shall take such actions as are reasonably
necessary to protect the confidentiality of such information (if practicable) to
the extent such action is otherwise not inconsistent with, an impairment of or
in derogation of the rights and interests of the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or any other
indenture provided for in SECTION 2(b) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Registrable Notes; in connection
therewith, cooperate with the trustee under any such indenture and the Holders
of the Registrable Notes, to effect such changes to such indenture as may be
required for such indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use its reasonable best efforts to cause such trustee
to execute, all documents as 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.
(p) Comply with all applicable rules and regulations of the
Commission and make generally available to the Issuer's securityholders earnings
statements satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
(i) commencing at the end of any fiscal quarter in which Registrable Notes are
sold to underwriters in a firm commitment or best efforts underwritten offering
and (ii) if not sold to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Issuer after the effective date of
a Registration Statement.
(q) Upon consummation of the Exchange Offer or a Private
Exchange, use its reasonable best efforts to obtain an opinion of counsel to the
Issuer, in a form customary for underwritten transactions, addressed to the
Trustee for the benefit of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, that the Exchange
15
Notes or Private Exchange Notes, as the case may be, and the related indenture
constitute legal, valid and binding obligations of the Issuer, enforceable
against the Issuer in accordance with their terms, subject to customary
exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the Issuer (or
to such other Person as directed by the Issuer) in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, ▇▇▇▇, or cause to be
marked, on such Registrable Notes that such Registrable Notes are being
cancelled in exchange for the Exchange Notes or the Private Exchange Notes, as
the case may be; in no event shall such Registrable Notes be marked as paid or
otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
(t) Use its reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Registrable Notes
covered by a Registration Statement contemplated hereby.
The Issuer may require each seller of Registrable Notes as to which any
registration is being effected to furnish to the Issuer such information
regarding such seller and the distribution of such Registrable Notes as the
Issuer may, from time to time, reasonably request. The Issuer may exclude from
such registration the Registrable Notes of any seller so long as such seller
fails to furnish such information within a reasonable time after receiving such
request. Each seller as to which any Shelf Registration is being effected agrees
to furnish promptly to the Issuer all information required to be disclosed in
order to make the information previously furnished to the Issuer by such seller
not materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Issuer, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Issuer or (ii) in the event that such reference to
such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon actual receipt
of any notice from the Issuer of the happening of any event of the kind
described in SECTION 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder
will forthwith discontinue disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be, until such Holder's or
16
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by SECTION 5(k) hereof, or until it is advised
in writing (the "ADVICE") by the Issuer that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event that the Issuer shall give any such notice,
the Applicable Period shall be extended by the number of days during such
periods from and including the date of the giving of such notice to and
including the date when each seller of Registrable Notes covered by such
Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by SECTION 5(k) hereof or (y)
the Advice.
Section 6 Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Issuer shall be borne by
the Issuer, whether or not the Exchange Offer Registration Statement or any
Shelf Registration is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes for
investment under the laws of such jurisdictions (x) where the holders of
Registrable Notes are located, in the case of the Exchange Notes or (y) as
provided in SECTION 5(h) hereof, in the case of Registrable Notes or Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing Prospectuses if
the printing of Prospectuses is requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement or in respect of
Registrable Notes or Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Issuer and reasonable fees and disbursements of one special counsel for all of
the sellers of Registrable Notes (exclusive of any counsel retained pursuant to
SECTION 7 hereof), (v) fees and disbursements of all independent certified
public accountants referred to in SECTION 5(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Issuer desires such insurance, (vii) fees and expenses of all
other Persons retained by the Issuer, (viii) internal expenses of the Issuer
(including, without limitation, all salaries and expenses of officers and
employees of the Issuer performing legal or accounting duties), (ix) the expense
of any annual audit, (x) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange, and the
obtaining of a rating of the securities, in each case if applicable, and (xi)
the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, indentures and any other
documents necessary in order to comply with this Agreement. Notwithstanding the
foregoing or anything to the contrary, each Holder shall pay all underwriting
discounts and commissions of any underwriters with respect to any Registrable
Notes sold by or on behalf of it.
17
Section 7 Indemnification. (a) The Issuer agrees to indemnify and hold
harmless each Holder of Registrable Notes and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period relating thereto, the
officers, directors, employees and agents of each such Person, and each Person,
if any, who controls any such Person within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act (each, a "PARTICIPANT"),
from and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Issuer shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by, arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the case of the
Prospectus in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Participant furnished to the Issuer in writing by or on behalf of such
Participant expressly for use therein.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Issuer, its directors, officers, employees and
agents and each Person who controls the Issuer within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent (but
on a several, and not joint, basis) as the foregoing indemnity from the Issuer
to each Participant, in each case to the extent, but only to the extent, that
any loss, claim, damage or liability is caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant furnished to the Issuer
in writing by or on behalf of such Participant expressly for use in any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Issuer shall have furnished any amendments or supplements
thereto) or any preliminary prospectus.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such Person (the "INDEMNIFIED
PERSON") shall promptly notify the Persons against whom such indemnity may be
sought (the "INDEMNIFYING PERSONS") in writing, and the Indemnifying Persons,
upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Persons may reasonably designate in such proceeding
and shall pay the fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Persons shall not relieve any of them of any obligation or
liability which any of the Indemnifying Persons may have hereunder or otherwise,
except to the extent such failure materially prejudices the Indemnifying
Persons. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Persons and
the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Persons shall have failed within a reasonable period of time to
18
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both any Indemnifying Person and the Indemnified Person or any affiliate thereof
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that, unless there exists a conflict among Indemnified Persons, the Indemnifying
Persons shall not, in connection with any one such proceeding or separate but
substantially similar related proceeding in the same jurisdiction arising out of
the same general allegations, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed promptly as
they are incurred. Any such separate firm for the Participants and such control
Persons of Participants shall be designated in writing by Participants who sold
a majority in interest of Registrable Notes and Exchange Notes sold by all such
Participants and shall be reasonably acceptable to the Issuer and any such
separate firm for the Issuer, their respective directors, their respective
officers and such control Persons of the Issuer shall be designated in writing
by the Issuer and shall be reasonably acceptable to the Holders. The
Indemnifying Persons shall not be liable for any settlement of any proceeding
effected without their prior written consent (which consent shall not be
unreasonably withheld or delayed), but if settled with such consent or if there
be a final judgment for the plaintiff for which the Indemnified Person is
entitled to indemnification pursuant to this Agreement, each of the Indemnifying
Persons agrees to indemnify and hold harmless each Indemnified Person from and
against any loss or liability by reason of such settlement or judgment. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Persons (which consent shall not be unreasonably withheld or delayed), effect
any settlement or compromise of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement (A) includes an unconditional written release of such Indemnified
Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of such Indemnified Person.
(d) If the indemnification provided for in the first and
second paragraphs of this SECTION 7 is for any reason unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraphs, in lieu of indemnifying such Indemnified Person
thereunder and in order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Person or Persons
on the one hand and the Indemnified Person or Persons on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations. The relative
fault of the parties 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 Issuer on the one hand or such Participant or such other
Indemnified Person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances.
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(e) The parties agree that it would not be just and equitable
if contribution pursuant to this SECTION 7 were determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this SECTION 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid 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.
(f) Any losses, claims, damages, liabilities or expenses for
which an Indemnified Person is entitled to indemnification or contribution under
this SECTION 7 shall be paid by the Indemnifying Person to the Indemnified
Person as such losses, claims, damages, liabilities or expenses are incurred.
The indemnity and contribution agreements contained in this SECTION 7 and the
representations and warranties of the Issuer set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Holder or any person who controls a
Holder, the Issuer, their respective directors, officers, employees or agents or
any person controlling the Issuer, and (ii) any termination of this Agreement.
(g) The indemnity and contribution agreements contained in
this SECTION 7 will be in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
Section 8 Rules 144 and 144A. The Issuer covenants that it will file
the reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the Commission thereunder in a
timely manner in accordance with the requirements of the Securities Act and the
Exchange Act and if at any time the Issuer is not required to file such reports,
it will, upon the request of any Holder or beneficial owner of Registrable
Notes, make available such information necessary to permit sales pursuant to
Rule 144A under the Securities Act. The Issuer further covenants that it will
take such further action as any Holder of Registrable Notes may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Notes without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144(k) and Rule 144A under the
Securities Act, as such Rules may be amended from time to time or (b) any
similar rule or regulation hereafter adopted by the Commission. Notwithstanding
the foregoing, nothing in this SECTION 8 shall be deemed to require the Issuer
to register any of its securities pursuant to the Exchange Act.
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Section 9 Underwritten Registrations. If any of the Registrable Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Holders of a majority in aggregate
principal amount of such Registrable Notes included in such offering and shall
be reasonably acceptable to the Issuer.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (i) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
Section 10 Miscellaneous.
(a) No Inconsistent Agreements. The Issuer has not, as of the date
hereof, and the Issuer shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of the Issuer's other issued
and outstanding securities under any such agreements. The Issuer has not entered
and will not enter into any agreement with respect to any of its securities
which will grant to any Person piggy-back registration rights with respect to
any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuer shall not,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given except pursuant to a written agreement
duly signed and delivered by (i) the Issuer and (ii)(1) the Holders of not less
than a majority in aggregate principal amount of the then outstanding
Registrable Notes and (2) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that SECTION 7 and this SECTION
10(c) may not be amended, modified or supplemented except pursuant to a written
agreement duly signed and delivered by each Holder and each Participating
Broker-Dealer (including any person who was a Holder or Participating
Broker-Dealer of Registrable Notes or Exchange Notes, as the case may be,
disposed of pursuant to any Registration Statement) affected by any such
amendment, modification or supplement. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
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Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered or
certified first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture.
(ii) if to the Issuer, at the address as follows:
HEALTHSOUTH Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(iii) if to the Initial Purchasers, at the address as follows:
UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Syndicate Department
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, 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 and in the manner specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers; 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 holds
Registrable Notes.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
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when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuer or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuer or any of its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Third Party Beneficiaries. Holders, beneficial owners of
Registrable Notes, Participating Broker-Dealers and the controlling persons and
agents referred to in SECTION 7 are intended third party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons. No other Person
is intended to be, or shall be construed as, a third-party beneficiary of this
Agreement.
(l) Attorneys' Fees. As between the parties to this Agreement, in any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its costs and expenses and any other available remedy.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuer on the other, or between or among any agents, representatives,
23
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
HEALTHSOUTH CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief
Operating Officer
UBS WARBURG LLC
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
SCOTIA CAPITAL (USA) INC.
FIRST UNION SECURITIES, INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
FLEET SECURITIES, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
NATCITY INVESTMENTS, INC.
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By: UBS WARBURG LLC
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
25