SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
January 31, 2003
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Date of Report (Date of earliest event reported)
Laboratory Corporation of America Holdings
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(Exact name of registrant as specified in its charter)
Delaware 1-11353 13-3757370
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(State or other jurisdiction of Commission (IRS Employer
Incorporation or organization) File No. Identification No.)
358 South Main Street, Burlington, North Carolina 27215
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(Address of principal executive offices) (Zip code)
(336) 229-1127
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Registrant's telephone number, including area code:
Not applicable
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(Former name or former address, if changed since last report)
Exhibit Index on Page 4
2
ITEM 5. OTHER EVENTS.
On January 31, 2003, Laboratory Corporation of America Holdings, a
Delaware corporation (the "Company"), pursuant to a Purchase Agreement dated
as of January 28, 2003 (the "Purchase Agreement") among the Company and the
initial purchasers named in Schedule A thereto (collectively, the "Initial
Purchasers"), sold $350,000,000 aggregate principal amount of its 5 1/2%
Senior Notes due February 1, 2013 (the "Notes") to the Initial Purchasers
(the "Offering"). A copy of the Purchase Agreement is filed herewith as
Exhibit 1.1. The Company issued the Notes pursuant to an indenture dated as
of January 31, 2003 between the Company and Wachovia Bank, National
Association, as trustee (the "Indenture"). A copy of the Indenture is filed
herewith as Exhibit 4.1. The Initial Purchasers will resell the Notes in
private transactions in conformance with Rule 144A under the Securities Act
of 1933, as amended (the "Securities Act"). The Notes have not been
registered under the Securities Act and may not be offered or sold in the
United States absent registration or an applicable exemption from the
registration requirements of the Securities Act. Proceeds from the issuance
of the Notes, estimated at $345.1 million, together with cash on hand, was
used to repay the $350,000,000 principal amount of the Company's bridge
loan facility that was used, together with available cash and borrowings
under the Company's senior credit facilities, to fund the acquisition of all
of the outstanding shares of DIANON Systems, Inc. on January 17, 2003.
On January 28, 2003, the Company entered into a Registration Rights
Agreement with the Initial Purchasers, pursuant to which the Company agreed
to (i) file with the Securities and Exchange Commission on or prior to May 1,
2003 a registration statement on an appropriate form under the Securities Act
(the "Exchange Offer Registration Statement") relating to a registered
exchange offer for the Notes under the Securities Act and (ii) use its
reasonable best efforts to cause the Exchange Offer Registration Statement to
be declared effective under the Securities Act by July 30, 2003. A copy of
the Registration Rights Agreement is filed herewith as Exhibit 10.1.
3
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
1.1 Purchase Agreement dated as of January 28, 2003 among
Laboratory Corporation of America Holdings and the
Initial Purchasers named on Schedule A thereto.
(Filed herewith.)
4.1 Indenture dated as of January 31, 2003 between
Laboratory Corporation of America Holdings and
Wachovia Bank, National Association, as trustee,
including form of 5 1/2% Senior Note due February 1,
2013. (Filed herewith.)
10.1 Registration Rights Agreement dated as of January 28,
2003 between Laboratory Corporation of America
Holdings and the Initial Purchasers named therein.
(Filed herewith.)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
LABORATORY CORPORATION OF AMERICA
HOLDINGS
Date: January 31, 2003 By: /s/ Bradford T. Smith
--------------------------
Bradford T. Smith
Executive Vice President, Chief
Legal Officer and Secretary
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
1.1 Purchase Agreement dated as of January 28, 2003
among Laboratory Corporation of America Holdings
and the Initial Purchasers named on Schedule A
thereto. (Filed herewith.)
4.1 Indenture dated as of January 31, 2003 between
Laboratory Corporation of America Holdings and
Wachovia Bank, National Association, as trustee,
including form of 5 1/2% Senior Note due February
1, 2013. (Filed herewith.)
10.1 Registration Rights Agreement dated as of January
28, 2003 between Laboratory Corporation of
America Holdings and the Initial Purchasers
named therein. (Filed herewith.)
EXHIBIT 1.1
EXECUTION COPY
$350,000,000
LABORATORY CORPORATION OF AMERICA HOLDINGS
5 1/2% Senior Notes due February 1, 2013
PURCHASE AGREEMENT
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January 28, 2003
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
UBS WARBURG LLC
WACHOVIA SECURITIES, INC.
SUNTRUST CAPITAL MARKETS, INC.
U.S. BANCORP PIPER JAFFRAY INC.,
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, NY 10010-3629
Dear Sirs:
1. Introductory. Laboratory Corporation of America Holdings, a Delaware
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the several initial purchasers named in
Schedule A hereto (the "Purchasers") U.S.$350,000,000 principal amount of
its 5 1/2% Senior Notes due February 1, 2013 ("Offered Securities") to be
issued under an indenture dated as of January 31, 2003 (the "Indenture"),
between the Company and Wachovia Bank, National Association, as Trustee on a
private placement basis pursuant to an exemption under Section 4(2) of the
United States Securities Act of 1933 (the "Securities Act"), and hereby agrees
with the several Purchasers as follows:
The holders of the Offered Securities will be entitled to the benefits
of a Registration Rights Agreement of even date herewith among the Company
and the Purchasers (the "Registration Rights Agreement"), pursuant to which
the Company agrees to file a registration statement with the Securities
Exchange Commission (the "Commission") registering the issuance of Exchange
Securities (as defined herein) in exchange for the Offered Securities or,
under the circumstances described herein, the resale of the Offered
Securities under the Securities Act.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities have been prepared by the Company.
Such preliminary offering circular (the "Preliminary Offering Circular")
and offering circular (the "Offering Circular"), as supplemented as of
the date of this Agreement, together with the documents incorporated
therein by reference and any other document approved by the Company for
use in connection with the contemplated resale of the Offered Securities,
are hereinafter collectively referred to as the "Offering Document". On
the date of this Agreement, the Offering Document does not include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by any
Purchaser through Credit Suisse First Boston LLC ("CSFB") specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b) hereof. Except
as disclosed in the Offering Document, on the date of this Agreement,
the Company's Annual Report on Form 10-K most recently filed with the
Commission and all subsequent reports (collectively, the "Exchange Act
Reports") which have been filed by the Company with the Commission or
sent to shareholders pursuant to the Securities Exchange Act of 1934
(the "Exchange Act"), taken together, do not include 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. Such documents, when they were filed
with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(b) [intentionally deleted]
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified individually or in the
aggregate would not have a material adverse effect on the business,
financial condition, properties or results of operations of the Company
and its subsidiaries taken as a whole (a "Material Adverse Effect").
(d) Each subsidiary of the Company has been duly incorporated and
is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Offering Document; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where
the failure to be so qualified individually or in the aggregate would
not have a Material Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly authorized
and validly issued and is fully paid and nonassessable; and the capital
stock of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(e) The Indenture has been duly authorized; the Offered Securities
have been duly authorized; and assuming due authorization, execution and
delivery of the Indenture and authentification of the Offered Securities,
in accordance with the Indenture, by the Trustee, when the Offered
Securities are delivered and paid for pursuant to this Agreement on the
Closing Date (as defined below), the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will conform to the
description thereof contained in the Offering Document; and the Indenture
and such Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(f) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale
of the Offered Securities by the Company, except for the filing of the
Exchange Offer Registration or the Shelf Registration Statement (each as
defined in the Registration Rights Agreement) and the order of the
Commission declaring such registration statement effective and such
consents, approvals, authorizations, orders or filings under state
securities or Blue Sky laws that the failure to obtain would not
individually or in the aggregate (i) have a Material Adverse Effect or
(ii) adversely affect in a material respect the ability of the Company
to perform its obligations under the Indenture, this Agreement or the
Registration Rights Agreement, or would otherwise be material in the
context of the sale of the Offered Securities.
(g) The execution, delivery and performance of the Indenture, this
Agreement, the Registration Rights Agreement, and the issuance and sale
of the Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or (ii) any
agreement or instrument to which the Company or any such subsidiary is
a party or by which the Company or any such subsidiary is bound or to
which any of the properties of the Company or any such subsidiary is
subject, or (iii) the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this Agreement,
except in the case of clause (i) or (ii), any such breach, violation or
default that would not (x) individually or in the aggregate have a
Material Adverse Effect or (y) prevent the consummation of the
transactions contemplated by this Agreement and the Registration Rights
Agreement in connection with the issuance and sale of the Offered
Securities by the Company.
(h) This Agreement and the Registration Rights Agreement have been
duly authorized, executed and delivered by the Company.
(i) Except as disclosed in the Offering Document, the Company and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that individually or in the
aggregate would have a Material Adverse Effect or materially interfere
with the use made or to be made thereof by them; and except as disclosed
in the Offering Document, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases with
no exceptions that would materially interfere with the use made or to be
made thereof by them.
(j) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them
and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect.
(k) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
could reasonably be expected to have a Material Adverse Effect.
(l) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "intellectual property
rights") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.(m) Except as disclosed in the
Offering Document, neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating
to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human
exposure to hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws, or
is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which could reasonably be expected to
lead to such a claim.
(n) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture, this Agreement or the
Registration Rights Agreement, or which are otherwise material in the
context of the sale of the Offered Securities; and no such actions,
suits or proceedings are threatened or, to the Company's knowledge,
contemplated.
(o) The financial statements included in the Offering Document
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and, except as otherwise disclosed in
the Offering Document, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; and the pro forma financial
statements included in the Offering Document were prepared in accordance
with the applicable requirements of the Securities Act and the rules and
regulations thereunder and include all adjustments necessary to present
fairly the pro forma financial position of the respective entity or
entities presented therein at the respective dates indicated and the
results of operations for the respective periods specified.
(p) Except as disclosed in the Offering Document, (i) since the
date of the latest audited financial statements included in the Offering
Document there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the
financial condition, business, properties or results of operations of
the Company and its subsidiaries taken as a whole whether or not arising
in the ordinary course of business; (ii) there have been no transactions
entered into by the Company or any of its subsidiaries which are material
to the Company and its subsidiaries, taken as a whole, other than those
entered into in the ordinary course of business or in connection with the
offering of the Offered Securities; (iii) except for changes occurring
in connection with the offering of the Offered Securities or pursuant to
the issuance or exercise of options pursuant to the Company's stock
option or other employment benefit plans described in the Offering
Document or conversion of outstanding securities described in the
Offering Document, there has been no material change in the capital
stock of the Company or any of its subsidiaries; and (iv) except as
disclosed in or contemplated by the Offering Document, there has been no
dividend or distribution of any kind declared, paid or made by the
Company or any of its wholly owned subsidiaries on any class of its
capital stock.
(q) The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and
files reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system.
(r) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "Investment Company Act"); and the
Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Document, will not be, an "investment company"
as defined in the Investment Company Act.
(s) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(t) Assuming the accuracy of the representations of the Purchasers
in Section 4 hereof and the due performance by the Purchasers of the
covenants and agreements set forth in Section 4 hereof, the offer and
sale of the Offered Securities by the Company to the several Purchasers
in the manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of Section 4(2)
thereof and Regulation S; and it is not necessary to qualify an indenture
in respect of the Offered Securities under the United States Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
(u) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior
to the date hereof, offered or sold in the United States or to any U.S.
person (as such terms are defined in Regulation S under the Securities
Act) the Offered Securities or any security of the same class or series
as the Offered Securities or (ii) has offered or will offer or sell the
Offered Securities (A) in the United States by means of any form of
general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act or (B) with respect to any securities
sold in reliance on Rule 903 of Regulation S ("Regulation S") under the
Securities Act, by means of any directed selling efforts within the
meaning of Rule 902(c) of Regulation S. The Company, its affiliates and
any person acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S. The Company
has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for
this Agreement.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to sell to
the Purchasers, and the Purchasers agree, severally and not jointly, to
purchase from the Company, at a purchase price of 98.599% of the principal
amount thereof plus accrued interest, if any, from January 31, 2003 to the
Closing Date (as hereinafter defined) the respective principal amounts set
forth opposite the names of the several Purchasers in Schedule A hereto. The
Company will deliver against payment of the purchase price the Offered
Securities in the form of one or more permanent global securities in
definitive form (the "Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name
of Cede & Co., as nominee for DTC. Interests in any permanent Global
Securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Offering Document. Payment for the
Offered Securities shall be made by the Purchasers in Federal (same day)
funds by official check or checks or wire transfer to an account at a bank
acceptable to CSFB and the Company drawn to the order of the Company at the
office of Cravath, Swaine & Moore at 10 A.M. (New York time), on January 31,
2003, or at such other time not later than seven full business days thereafter
as CSFB and the Company determine, such time being herein referred to as the
"Closing Date", against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Offered Securities. The Global
Securities will be made available for checking at the above office of Cravath,
Swaine & Moore at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the Company that
it is an "accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S or pursuant to an exemption
from the registration requirements of the Securities Act. Each Purchaser
severally represents and agrees that it has offered and sold the Offered
Securities and will offer and sell, the Offered Securities to only to
Qualified Institutional Buyers in accordance with Rule 144A ("Rule 144A") and
to certain offshore persons in reliance on Regulation S. Accordingly, neither
such Purchaser nor its affiliates, nor any persons acting on its or their
behalf, have engaged or will engage in any directed selling efforts with
respect to the Offered Securities, and such Purchaser, its affiliates and all
persons acting on its or their behalf have complied and will comply with the
offering restrictions requirements of Regulation S and Rule 144A. Terms used
in this subsection (b) have the meanings given to them by Regulation S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other Purchasers
or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities by means of any form
of general solicitation or general advertising, within the meaning of Rule
502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio,
or (ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. Each Purchaser severally
agrees, with respect to resales made in reliance on Rule 144A of any of the
Offered Securities, to deliver either with the confirmation of such resale or
otherwise prior to settlement of such resale a notice to the effect that the
resale of such Offered Securities has been made in reliance upon the exemption
from the registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i) it
has not offered or sold and prior to the date six months after the date of
issue of the Offered Securities will not offer or sell any Offered Securities
to persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
ircumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Offered Securities in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Offered Securities to a
person who is of a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person
to whom such document may otherwise lawfully be issued or passed on.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFB promptly of any proposal to amend
or supplement the Offering Document and will not effect such amendment
or supplementation without CSFB's consent. If, at any time prior to the
completion of the resale of the Offered Securities by the Purchasers any
event occurs as a result of which the Offering Document as then amended
or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, the Company promptly will notify CSFB of such event and
promptly will prepare, at its own expense, an amendment or supplement
which will correct such statement or omission. Neither CSFB's consent
to, nor the Purchasers' delivery to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(b) The Company will furnish to CSFB copies of any preliminary
offering circular, the Offering Document and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as CSFB requests, and the Company will furnish to CSFB on
the date hereof three copies of the Offering Document signed by a duly
authorized officer of the Company, one of which will include the
independent accountants' reports therein manually signed by such
independent accountants. At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company will promptly
furnish or cause to be furnished to CSFB (and, upon request, to each of
the other Purchasers) and, upon request of holders and prospective
purchasers of the Offered Securities, to such holders and purchasers,
copies of the information required to be delivered to holders and
prospective purchasers of the Offered Securities pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto)
in order to permit compliance with Rule 144A in connection with resales
by such holders of the Offered Securities. The Company will pay the
expenses of printing and distributing to the Purchasers all such
documents.
(c) The Company will use its best efforts to arrange for the
qualification of the Offered Securities for sale and the determination of
their eligibility for investment under the laws of such states in the
United States as CSFB designates and will continue such qualifications in
effect so long as required for the resale of the Offered Securities by
the Purchasers provided that the Company will not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any such state.
(d) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFB, each of the other Purchasers
and any holder of Offered Securities a copy of the restrictions on
transfer applicable to the Securities.
(e) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined
in Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them otherwise than
pursuant to an effective registration statement under the Securities Act.
(f) During the period of two years after the Closing Date, the
Company will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act.
(g) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture and
the Registration Rights Agreement including (i) the fees and expenses
of the Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and
initial delivery of the Offered Securities and, as applicable, the
Exchange Securities (as defined in the Registration Rights Agreement),
the preparation and printing of this Agreement, the Registration Rights
Agreement, the Offered Securities, the Indenture, the Offering Document
and amendments and supplements thereto, and any other document relating
to the issuance, offer, sale and delivery of the Offered Securities, and
as applicable, the Exchange Securities; (iii) the cost of qualifying the
Offered Securities for trading in The PortalSM Market ("PORTAL") of The
Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) the
cost of any advertising approved by the Company in connection with the
issue of the Offered Securities, (v) any expenses (including fees and
disbursements of counsel) incurred in connection with qualification of
the Offered Securities or the Exchange Securities for sale under the
laws of such jurisdictions as CSFB designates and the printing of
memoranda relating thereto, (vi) any fees charged by investment rating
agencies for the rating of the Securities or the Exchange Securities,
and (vii) expenses incurred in distributing preliminary offering
circulars and the Offering Document (including any amendments and
supplements thereto) to the Purchasers. The Company will reimburse the
Purchasers for all expenses of the Purchasers and the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities.
(h) In connection with the offering, until CSFB shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities, neither the Company nor any of its
affiliates has or will, either alone or with one or more other persons,
bid for or purchase for any account in which it or any of its affiliates
has a beneficial interest any Offered Securities or attempt to induce any
person to purchase any Offered Securities; and neither it nor any of its
affiliates will make bids or purchases for the purpose of creating
actual, or apparent, active trading in, or of raising the price of, the
Offered Securities.
(i) For a period of 30 days after the date of the initial offering
of the Offered Securities by the Purchasers, the Company will not offer,
sell, contract to sell, pledge, or otherwise dispose of, directly or
indirectly, any debt securities issued or guaranteed by the Company and
having a maturity of more than one year from the date of issue. The
Company will not at any time offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any securities under
circumstances where such offer, sale, pledge, contract or disposition
would cause the exemption afforded by Section 4(2) of the Securities Act
or the safe harbor of Regulation S thereunder to cease to be applicable
to the offer and sale of the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of PricewaterhouseCoopers LLP confirming that they are
independent public accountants within the meaning of the Securities Act
and the applicable published rules and regulations thereunder ("Rules and
Regulations") and to the effect that:
(i) In their opinion the financial statements and schedules
examined by them and included in the Offering Document and in the
Exchange Act Reports comply as to form in all material respects
with the applicable accounting requirements of the Securities Act
and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Offering Document and in the
Exchange Act Reports;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements included in
the Offering Document or in the Exchange Act Reports do
not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act
and the related published Rules and Regulations or any
material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) the unaudited consolidated net sales, net
operating income, net income and net income per share
amounts for the nine-month periods ended September 30,
2001, and September 30, 2002, included in the Offering
Document do not agree with the amounts set forth in the
unaudited consolidated financial statements for those same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited statements of income;
(C) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than three business days prior to
the date of this Agreement, there was any change in the
capital stock or any increase in short-term indebtedness
or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any
decrease in consolidated net current assets or net assets,
as compared with amounts shown on the latest balance sheet
included in the Offering Document; or
(D) for the period from the closing date of the
latest income statement included in the Offering Document
to the closing date of the latest available income
statement read by such accountants there were any
decreases, as compared with the corresponding period of
the previous year and with the period of corresponding
length ended the date of the latest income statement
included in the Offering Document, in consolidated net
sales, net operating income consolidated income before
extraordinary items or net income or in the ratio of
earnings to fixed charges; except in all cases set forth
in clauses (B) and (C) above for changes, increases or
decreases which the Offering Document disclose have
occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document
and the Exchange Act Reports (in each case to the extent
that such dollar amounts, percentages and other financial
information are derived from the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such
dollar amounts, percentages and other financial information
to be in agreement with such results, except as otherwise
specified in such letter.
(v) on the basis of a reading of the pro forma
financial statements, carrying out certain specified
procedures, reading of minutes, inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma
consolidated financial statements, nothing came to their
attention which caused them to believe that the pro forma
financial statements do not comply as to form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X under the
Securities Act or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilations of such statements or on the pro forma basis
described in the notes thereto.
(b) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Purchasers, including CSFB, is material and adverse
and makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities on the
terms and in the manner described in the Offering Document; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change
in U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the judgment of
a majority in interest of the Purchasers including CSFB, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or
in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange or any setting of minimum prices for trading
on such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (v) any
banking moratorium declared by U.S. Federal or, New York authorities;
(vi) any major disruption of settlements of securities or clearance
services in the United States or (vii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of a majority in
interest of the Purchasers including CSFB, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering or
sale of and payment for the Offered Securities on the terms and in the
manner described in the Offering Document.
(c) The Purchasers shall have received an opinion, dated such
Closing Date, of Hogan & Hartson L.L.P., counsel for the Company, that:
(i) The Company is validly existing as a corporation and in
good standing under the laws of the State of Delaware.
(ii) The Company has the corporate power to execute, deliver
and perform this Agreement, the Indenture and the Registration
Rights Agreement. The execution, delivery and performance by the
Company of this Agreement, the Indenture and the Registration
Rights Agreement have been duly authorized by all necessary
corporate action of the Company.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms.
(iv) The Offered Securities have been duly authorized and
executed by the Company and, assuming due authentication by the
Trustee and payment therefor, are duly issued and delivered by the
Company and constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms.
(v) This Agreement and the Registration Rights Agreement have
been duly executed and delivered on behalf of the Company.
(vi) The execution, delivery and performance by the Company of
this Agreement, the Indenture and the Registration Rights Agreement
do not (i) require any approval of its stockholders which has not
been obtained, (ii) violate the General Corporation Law of the
State of Delaware, as amended, or the Certificate of Incorporation
of the Company or the Bylaws of the Company, (iii) violate any
federal statute or regulation covered by such letter, or (iv) to
the best of such counsel's knowledge, violate any court or
administrative order, judgment or decree that names the Company and
is specifically directed to it or any of its property.
(vii) Based upon and assuming the accuracy of the
representations and warranties, and assuming due performance of the
covenants and agreements, of the Company and the Purchasers
contained in this Agreement, it is not necessary in connection with
the offer, sale and delivery of the Offered Securities to the
Purchasers under this Agreement, or in connection with the initial
resale of the Offered Securities in accordance with this Agreement
and the Offering Document, to register the Offered Securities under
the Securities Act of 1933 or to qualify the Indenture under the
Trust Indenture Act of 1939; it being understood that no opinion
need be expressed as to any resale of an Offered Security
subsequent to such initial resale thereof by the Purchasers.
(viii) The Offered Securities conform to the summary of the
terms thereof contained in the Offering Document under the caption
"Description of the Notes".
(ix) In addition to the matters set forth above, such letter
shall also contain a statement of such counsel to the effect that:
while counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements in the Offering
Document, no facts have come to such counsel's attention which have
resulted in such counsel having concluded that the Offering
Document, as of its date and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein not misleading;
provided that in making the foregoing statements (which shall not
constitute an opinion), such counsel need not express any views as
to the financial statements and supporting schedules and other
financial information and data included in or omitted from the
Offering Document.
(d) The Purchasers shall have received an opinion, dated such
Closing Date, of David P. King, General Counsel of the Company, that:
(i) The Company and each subsidiary (a) is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its
business as described in the Offering Document and (c) is qualified
to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so
to qualify could not reasonably be expected to result in a Material
Adverse Effect. All of the issued and outstanding capital stock of
each subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock
of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(ii) The execution, delivery and performance of this
Agreement, the Indenture and the Registration Rights Agreement by
the Company (a) have been duly authorized by all requisite
corporate and, if required, stockholder action of the Company and
(b) will not (i) violate (A) any provision of law, statute, rule or
regulation of the United States of America or the Delaware General
Corporation Law or of the certificate or articles of incorporation
or other constitutive documents or by-laws of the Company or any
subsidiary, (B) any order of any Governmental Authority or (C) any
provision of any indenture, agreement or other instrument to which
the Company or any subsidiary is a party or by which any of them or
any of their property is bound, the effect of which could
reasonably be expected to result in a Material Adverse Effect or
would adversely affect the ability of the Company to perform its
obligations under the Indenture, this Agreement or the Registration
Rights Agreement, or would otherwise be material in the context of
the sale of the Offered Securities, (ii) result in a breach of or
constitute (alone or with notice or lapse of time or both) a
default under, or give rise to any right to accelerate or to
require the prepayment, repurchase or redemption of any obligation
under any such indenture, agreement or other instrument, the effect
of which could reasonably be expected to result in a Material
Adverse Effect or would adversely affect the ability of the Company
to perform its obligations under the Indenture, this Agreement or
the Registration Rights Agreement, or would otherwise be material
in the context of the sale of the Offered Securities or (iii)
result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned by the Company or any
subsidiary.
(iii) No action, consent or approval of, registration or
filing with or any other action by any United States federal
Governmental Authority, or to the extent required under state law,
any state Governmental Authority, is required for the due
execution, delivery and performance by the Company of this
Agreement, the Indenture or the Registration Rights Agreement,
except for the filing of the Exchange Offer Registration Statement
or the Shelf Registration Statement and the order of the Commission
declaring such registration statement effective.
(iv) There are not any actions, suits or proceedings at law or
in equity or by or before any Governmental Authority now pending or
threatened or, to the best of such counsel's knowledge
contemplated, against or affecting the Company or any Subsidiary
that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse
Effect or would materially and adversely affect the ability of the
Company to perform its obligations under the Indenture, this
Agreement or the Registration Rights Agreement or which are
otherwise material in the context of the sale of the Offered
Securities.
(v) The descriptions in the Offering Document of statutes,
legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information required
to be shown.
(e) The Purchasers shall have received from Cravath, Swaine &
Moore, counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities and the Offering Circular, the
exemption from registration for the offer and sale of the Offered
Securities by the Company to the several Purchasers and the resales by
the several Purchasers as contemplated hereby and other related
matters as CSFB may require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(f) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the date of the most recent financial statements
in the Offering Document there has been no material adverse change, nor
any development or event involving a prospective material adverse change,
in the financial condition, business, properties or results of operations
of the Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Offering Document or as described in such
certificate.
(g) The Purchasers shall have received a letter, dated the Closing
Date, of PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three days prior to
the Closing Date for the purposes of this subsection.The Company will
furnish the Purchasers with such conformed copies of such opinions,
certificates, letters and documents as the Purchasers reasonably request.
CSFB may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers
hereunder.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Purchaser, its partners, directors and officers and
each person, if any, who controls such Purchaser within the meaning of Section
15 of the Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Offering Document, or any amendment or
supplement thereto, or any related preliminary offering circular or the
Exchange Act Reports, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, including any losses, claims, damages or liabilities
arising out of or based upon the Company's failure to perform its obligations
under Section 5(a) of this Agreement, and will reimburse each Purchaser for
any legal or other expenses reasonably incurred by such Purchaser in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through CSFB
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (b)
below; and provided, further, that with respect to any untrue statement or
alleged untrue statement in, or omission or alleged omission from, any
preliminary offering circular, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Purchaser that sold the
Offered Securities concerned to the person asserting any such losses, claims,
damages or liabilities, to the extent that such sale was an initial resale by
such Purchaser and any such loss, claim, damage or liability of such Purchaser
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to
such person, a copy of the Offering Document (exclusive of any material
included therein but not attached thereto) if the Company had previously
furnished copies thereof to such Purchaser.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to
state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Purchaser through CSFB specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Purchaser consists of the following information in the Offering Document
furnished on behalf of each Purchaser: (i) the over-allotment and stabilizing
descriptions appearing in the ninth paragraph under the caption "Plan of
Distribution" and (ii) the following information in the Offering Document
furnished on behalf of the Purchasers: the information appearing in the tenth
paragraph under the caption "Plan of Distribution"; provided however, that the
Purchasers shall not be liable for any losses, claims, damages or liabilities
arising out of or based upon the Company's failure to perform its obligations
under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under subsection (a) or (b) above except
to the extent that it has been materially prejudiced (through the forfeiture
of substantive rights or defenses) by such failure; and provided further
that the failure to notify the indemnifying party shall not relieve it from
any liability that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and,
to the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes
(i) an unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action and (ii) does not
include a statement as to or an admission of fault or failure to act by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Purchasers on the other from the offering of
the Offered Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Purchasers on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Purchasers on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by the Purchasers from the Company under this Agreement. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities purchased by it were
resold exceeds the amount of any damages which such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. The Purchasers' obligations in this subsection
(d) to contribute are several in proportion to their respective purchase
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Purchaser within the meaning of the Securities Act or the
Exchange Act; and the obligations of the Purchasers under this Section shall
be in addition to any liability which the respective Purchasers may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Securities hereunder and the aggregate principal
amount of the Offered Securities that such defaulting Purchaser or Purchasers
agreed but failed to purchase does not exceed 10% of the total principal
amount of the Offered Securities, CSFB may make arrangements satisfactory to
the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the
Securities that such defaulting Purchasers agreed but failed to purchase on
such Closing Date. If any Purchaser or Purchasers so default and the
aggregate principal amount of the Offered Securities with respect to which
such default or defaults occur exceeds 10% of the total principal amount of
the Offered Securities and arrangements satisfactory to CSFB and the Company
for the purchase of such Offered Securities by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Purchaser or the Company, except
as provided in Section 9. As used in this Agreement, the term "Purchaser"
includes any person substituted for a Purchaser under this Section. Nothing
herein will relieve a defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Company or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on
behalf of any Purchaser, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement
is terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Purchasers is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company and the Purchasers
pursuant to Section 7 shall remain in effect. If the purchase of the Offered
Securities by the Purchasers is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or
the occurrence of any event specified in clause (iii), (iv), (v), (vi) or
(vii) of Section 6(b), the Company will reimburse the Purchasers for all out-
of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed
to the Purchasers, c/o Credit Suisse First Boston LLC, One Madison Avenue, New
York, NY 10010-3629, Attention: Transactions Advisory Group, or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at
358 South Main Street, Burlington, North Carolina 27215, Attention: Chief
Legal Officer; provided, however, that any notice to a Purchaser pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have
any right or obligation hereunder, except that holders of Offered Securities
shall be entitled to enforce the agreements for their benefit contained in the
second and third sentences of Section 5(b) hereof against the Company as if
such holders were parties hereto.
12. Representation of Purchasers. CSFB will act for the several
Purchasers in connection with this purchase, and any action under this
Agreement taken by CSFB will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and
the several Purchasers in accordance with its terms.
Very truly yours,
LABORATORY CORPORATION OF AMERICA
HOLDINGS
By /s/ Bradford T. Smith
-----------------------------
Bradford T. Smith
The foregoing Purchase Agreement is hereby con-
firmed and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
UBS WARBURG LLC
WACHOVIA SECURITIES, INC.
SUNTRUST CAPITAL MARKETS, INC.
U.S. BANCORP PIPER JAFFRAY INC.
Acting on behalf of themselves and as the
Representatives of the several Purchasers.
BY CREDIT SUISSE FIRST BOSTON LLC
By /s/ Michael J. Wiggins
--------------------------------
Michael J. Wiggins
Director
SCHEDULE A
Principal Amount of
Purchaser Offered Securities
- --------- -------------------
Credit Suisse First Boston LLC...................... $166,250,000
Banc of America Securities LLC..................... 52,500,000
UBS Warburg LLC..................................... 52,500,000
Wachovia Securities, Inc. .......................... 52,500,000
SunTrust Capital Markets, Inc. ..................... 17,500,000
U.S. Bancorp Piper Jaffray Inc. . .................. 8,750,000
-----------------
Total............................... $350,000,000
=================
EXHIBIT 4.1
EXECUTION COPY
===============================================================================
LABORATORY CORPORATION OF AMERICA HOLDINGS
Issuer
5 1/2% Senior Notes due February 1, 2013
____________________
INDENTURE
Dated as of January 31, 2003
_____________________
WACHOVIA BANK, NATIONAL ASSOCIATION,
Trustee
===============================================================================
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- ---------
310(a)(1) ...................................................... 7.10
(a)(2) ...................................................... 7.10
(a)(3) ...................................................... N.A.
(a)(4) ...................................................... N.A.
(b) ......................................................... 7.08; 7.10
(c) ......................................................... N.A.
311(a) ......................................................... 7.11
(b) ......................................................... 7.11
(c) ......................................................... N.A.
312(a) ......................................................... 2.05
(b) ......................................................... N.A.
(c) ......................................................... N.A.
313(a) ......................................................... 7.06
(b)(1) ...................................................... N.A.
(b)(2) ...................................................... 7.06
(c) ......................................................... 7.06
(d) ......................................................... 7.06
314(a) ......................................................... 10.04
(b) ......................................................... N.A.
(c)(1) ...................................................... 10.04
(c)(2) ...................................................... 10.04
(c)(3) ...................................................... N.A.
(d) ......................................................... N.A.
(e) ......................................................... 10.05
(f) ......................................................... 4.10
315(a) ......................................................... 7.01
(b) ......................................................... 7.05; 10.02
(c) ......................................................... 7.01
(d) ......................................................... 7.01
(e) ......................................................... 6.11
316(a) ......................................................... 10.06
(a)(1)(A) ................................................... 6.05
(a)(1)(B) ................................................... 6.04
(a)(2) ...................................................... N.A.
(b) ......................................................... 6.07
317(a)(1) ...................................................... 6.08
(a)(2) ...................................................... 6.09
(b) ......................................................... 2.04
318(a) ......................................................... 10.01
___________________
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be part of the Indenture.
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01. Definitions................................................1
SECTION 1.02. Other Definitions........... ..............................7
SECTION 1.03. Incorporation by Reference of Trust Indenture Act..........7
SECTION 1.04. Rules of Construction......................................8
ARTICLE II
The Securities
--------------
SECTION 2.01. Form and Dating............................................8
SECTION 2.02. Execution and Authentication...............................9
SECTION 2.03. Registrar and Paying Agent.................................9
SECTION 2.04. Paying Agent To Hold Money in Trust.......................10
SECTION 2.05. Securityholder Lists......................................11
SECTION 2.06. Transfer and Exchange.....................................11
SECTION 2.07. Replacement Securities....................................11
SECTION 2.08. Outstanding Securities....................................12
SECTION 2.09. Temporary Securities......................................12
SECTION 2.10. Cancelation...............................................12
SECTION 2.11. Defaulted Interest........................................13
SECTION 2.12. CUSIP Numbers.............................................13
SECTION 2.13. Issuance of Additional Securities.........................13
ARTICLE III
Redemption
----------
SECTION 3.01. Notices to Trustee........................................14
SECTION 3.02. Selection of Securities to Be Redeemed....................15
SECTION 3.03. Notice of Redemption......................................15
SECTION 3.04. Effect of Notice of Redemption............................16
SECTION 3.05. Deposit of Redemption Price...............................16
SECTION 3.06. Securities Redeemed in Part...............................16
ARTICLE IV
Covenants
---------
SECTION 4.01. Payment of Securities.....................................17
SECTION 4.02. Maintenance of Office or Agency for Registration of
Transfer, Exchange and Payment of Securities.........17
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee....18
SECTION 4.04. Provision as to Paying Agent..............................18
SECTION 4.05. Maintenance of Corporate Existence........................19
SECTION 4.06. Limitation on Liens.......................................19
SECTION 4.07. Limitation on Sale and Leaseback Transactions.............21
SECTION 4.08. Limitation on Subsidiary Indebtedness and Preferred
Stock................................................22
SECTION 4.09. Compliance Certificate....................................23
SECTION 4.10. Further Instruments and Acts..............................23
SECTION 4.11. SEC Reports...............................................23
ARTICLE V
Successor Company
-----------------
SECTION 5.01. When Company May Merge or Transfer Assets.................24
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default.........................................25
SECTION 6.02. Acceleration..............................................27
SECTION 6.03. Other Remedies............................................27
SECTION 6.04. Waiver of Past Defaults...................................27
SECTION 6.05. Control by Majority.......................................28
SECTION 6.06. Limitation on Suits.......................................28
SECTION 6.07. Rights of Holders to Receive Payment......................29
SECTION 6.08. Collection Suit by Trustee................................29
SECTION 6.09. Trustee May File Proofs of Claim..........................29
SECTION 6.10. Priorities................................................29
SECTION 6.11. Undertaking for Costs.....................................30
SECTION 6.12. Waiver of Stay or Extension Laws..........................30
ii
ARTICLE VII
Trustee
-------
SECTION 7.01. Duties of Trustee.........................................30
SECTION 7.02. Rights of Trustee.........................................32
SECTION 7.03. Individual Rights of Trustee..............................32
SECTION 7.04. Trustee's Disclaimer......................................33
SECTION 7.05. Notice of Defaults........................................33
SECTION 7.06. Reports by Trustee to Holders.............................33
SECTION 7.07. Compensation and Indemnity................................33
SECTION 7.08. Replacement of Trustee....................................34
SECTION 7.09. Successor Trustee by Merger...............................35
SECTION 7.10. Eligibility; Disqualification.............................36
SECTION 7.11. Preferential Collection of Claims Against Company.........36
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities; Defeasance..........36
SECTION 8.02. Conditions to Defeasance..................................38
SECTION 8.03. Application of Trust Money................................39
SECTION 8.04. Repayment to Company......................................39
SECTION 8.05. Indemnity for U.S. Government Obligations.................40
SECTION 8.06. Reinstatement.............................................40
ARTICLE IX
Amendments
----------
SECTION 9.01. Without Consent of Holders................................40
SECTION 9.02. With Consent of Holders...................................41
SECTION 9.03. Compliance with Trust Indenture Act.......................42
SECTION 9.04. Revocation and Effect of Consents and Waivers.............42
SECTION 9.05. Notation on or Exchange of Securities.....................43
SECTION 9.06. Trustee To Sign Amendments................................43
SECTION 9.07. Payment for Consent.......................................43
iii
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Trust Indenture Act Controls.............................44
SECTION 10.02. Notices..................................................44
SECTION 10.03. Communication by Holders with other Holders..............44
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.......45
SECTION 10.05. Statements Required in Certificate or Opinion............45
SECTION 10.06. When Securities Disregarded..............................46
SECTION 10.07. Rules by Trustee, Paying Agent and Registrar.............46
SECTION 10.08. Legal Holidays...........................................46
SECTION 10.09. Governing Law............................................46
SECTION 10.10. No Recourse Against Others...............................46
SECTION 10.11. Successors...............................................46
SECTION 10.12. Multiple Originals.......................................47
SECTION 10.13. Table of Contents; Headings..............................47
Form of Subsidiary Guaranty
Rule 144A/Regulation S Appendix
iv
INDENTURE dated as of January 31,
2003, between LABORATORY CORPORATION OF
AMERICA HOLDINGS, a Delaware corporation
(the "Company"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association
organized under the laws of the United
States, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's 5 1/2% Senior
Notes due February 1, 2013.
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01. Definitions
"Acquired Indebtedness" means Indebtedness of a Person
(1) existing at the time such Person becomes a Subsidiary or
(2) assumed in connection with the acquisition of assets by such
Person, in each case, other than Indebtedness incurred in
connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition, as the case may be. For
purposes of Section 4.08, any Acquired Indebtedness shall not be
deemed to have been incurred until 270 days from the date
(1) the Person obligated on such Acquired Indebtedness becomes a
Subsidiary of the Company or (2) the acquisition of assets, in
connection with which such Acquired Indebtedness was assumed, is
consummated.
"Additional Securities" means, 5 1/2% Senior Notes due
February 1, 2013 issued from time to time after the Issue Date
under the terms of this Indenture (other than pursuant to
Section 2.06, 2.07, 2.09 or 3.06 of this Indenture and other
than Exchange Securities or Private Exchange Securities issued
pursuant to an exchange offer for other Securities outstanding
under this Indenture).
"Affiliate" means, as applied to any Person, (i) any
other Person, directly or indirectly, Controlling or Controlled
by or under direct or indirect common Control with such
specified Person or (ii) any Person who is a director or officer
(A) of such Person, (B) of any Subsidiary of such Person or (C)
of any Person described in clause (i) above.
"Attributable Debt" means, with respect to a Sale and
Leaseback Transaction, an amount equal to the lesser of:
(1) the fair market value of the property (as determined in good
faith by the Board of Directors); and (2) the present value of
the total net amount of rent payments to be made under the lease
during its remaining term, discounted at the rate of interest
set forth or implicit in the terms of the lease, compounded
semi-annually.
"Board of Directors" means the Board of Directors of
the Company or any committee thereof duly authorized to act on
behalf of such Board of Directors.
"Business Day" means a day other than a Legal Holiday.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent ownership
interests in a Person (other than a corporation) and any and all
warrants or options to purchase any of the foregoing.
"Capitalized Lease" means any obligation of a Person
to pay rent or other amounts incurred with respect to real
property or equipment acquired or leased by such Person and used
in its business that is required to be recorded as a capital
lease in accordance with GAAP.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Company" means Laboratory Corporation of America
Holdings, a Delaware corporation, until a successor replaces it
and thereafter means the successor and, for purposes of any
provision contained herein and required by the TIA, each other
obligor on the Securities.
"Consolidated Total Assets" means, with respect to any
Person as of any date, the amount of total assets as shown on
the consolidated balance sheet of such Person for the most
recent fiscal quarter for which financial statements have been
filed with the SEC, prepared in accordance with GAAP.
"Control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of a person, whether through the
ownership of voting securities, by contract or otherwise, and
the terms "Controlled" and "Controlling" shall have meanings
correlative thereto.
2
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its
nominees and their respective successors.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"GAAP" means generally accepted accounting principles
in the United States of America in effect from time to time,
including those set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements of pronouncements of
the Financial Accounting Standards Board or such other entity as
are approved by a significant segment of the accounting
profession.
"Governmental Authority" means any nation or
government, any state or other political subdivision thereof or
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Holder" or "Securityholder" means a Person in whose
name a Security is registered on the Registrar's books.
"Indebtedness" of any Person means, without
duplication (1) any obligation of such Person for money
borrowed, (2) any obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, (3) any
reimbursement obligation of such Person in respect of letters of
credit or other similar instruments which support financial
obligations which would otherwise become Indebtedness, and (4)
any obligation of such Person under Capitalized Leases;
provided, however, that "Indebtedness" of such Person shall not
include any obligation of such Person to any Subsidiary of such
Person or to any Person with respect to which such Person is a
Subsidiary.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Issue Date" means January 31, 2003.
"Lien" means any mortgage, pledge, hypothecation,
encumbrance, lien or other security interest.
3
"Officer" means the Chairman of the Board, the
Executive Chairman, the Vice Chairman, the President, the Chief
Executive Officer, the Chief Financial Officer, any Executive
Vice President, any Vice President, the Treasurer or the
Secretary of the Company.
"Officers' Certificate" means a certificate signed by
two Officers (in the case of the annual Officers' Certificate
delivered pursuant to Section 4.09, at least one of such
Officers shall be the principal executive officer, principal
financial officer or principal accounting officer of the
Company) and that complies with Sections 10.04 and 10.05 of this
Indenture and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion from
legal counsel that complies with Sections 10.04 and 10.05 of
this Indenture and delivered to the Trustee. The counsel may be
an employee of or counsel to the Company or the Trustee.
"Permitted Acquired Indebtedness" means any Acquired
Indebtedness that remains outstanding following the expiration
of a good faith offer by the Company or the Subsidiary of the
Company obligated under such Acquired Indebtedness to acquire
such Acquired Indebtedness, including, without limitation, an
offer to exchange such Acquired Indebtedness for debt securities
of the Company, on terms, which in the opinion of an independent
investment banking firm of national reputation and standing, are
consistent with market practices in existence at the time for
offers of a similar nature; provided that the initial expiration
date of any such offer shall be not later than the expiration of
the 270-day period referred to in the definition of "Acquired
Indebtedness"; provided further, that the amount of Acquired
Indebtedness that shall constitute "Permitted Acquired
Indebtedness" shall only be equal to the amount of Acquired
Indebtedness that the Company or such Subsidiary has made an
offer to acquire in accordance with the foregoing.
"Permitted Indebtedness" means
(a) Indebtedness outstanding on the Issue Date;
(b) intercompany Indebtedness or Preferred Stock
to the extent owing to or held by the Company or
another Subsidiary;
(c) any Permitted Acquired Indebtedness;
4
(d) Indebtedness under performance bonds or with
respect to workers' compensation claims, in each case
incurred in the ordinary course of business; and
(e) Indebtedness of any Subsidiary Guarantor;
provided that if such Subsidiary shall cease to be a
Subsidiary Guarantor, such Indebtedness will be
treated as incurred at that time and will no longer
constitute Permitted Indebtedness pursuant to this
clause (e).
"Person" means any individual, corporation,
partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" means, with respect to any Person,
any and all shares of preferred stock (however designated)
issued by such Person, that is entitled to preference or
priority over one or more series or classes of capital stock
issued by such Person upon any distribution of such Person's
property and assets, whether by dividend or on liquidation,
whether now outstanding, or issued after the Issue Date.
"principal" of a Security means the principal of the
Security plus the premium, if any, payable on the Security which
is due or overdue or is to become due at the relevant time.
"Principal Property" means any real property and any
related buildings, fixtures or other improvements located in the
United States owned by the Company or its Subsidiaries (1) that
is an operating property included in the list of principal
properties in Item 2 (or any successor Item thereto) of the
Company's annual report on Form 10-K filed with the SEC for the
most recently ended fiscal year, or is an operating property
acquired subsequent to such filing that would have been included
in such Item 2 if it had been owned prior to the date of such
filing or (2) the net book value of which as of the end of the
last fiscal quarter ending immediately prior to the date of
determination exceeds 1% of the Consolidated Total Assets of the
Company as of the same date.
"Restricted Subsidiary" means any Subsidiary of the
Company that owns a Principal Property.
"Sale and Leaseback Transaction" means any arrangement
with any Person providing for the leasing by the Company or any
Restricted Subsidiary of real or personal property that is to be
5
sold or transferred by the Company or such Restricted Subsidiary
to such Person or to any other Person to whom funds have been or
are to be advanced by such Person on the security of such
property or rental obligations of the Company or such Restricted
Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Initial Securities, the
Exchange Securities, the Private Exchange Securities and
Additional Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended.
"Stated Maturity" means, with respect to any Security,
the date specified in such Security as the fixed date on which
the final payment of principal of such Security is due and
payable.
"Subsidiary" means with respect to any Person (herein
referred to as the "parent"), any corporation, partnership,
association or other business entity (a) of which securities or
other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time
any determination is being made, owned, controlled or held, or
(b) that is, at the time any determination is being made,
otherwise Controlled, by the parent or one or more subsidiaries
of the parent or by the parent and one or more subsidiaries of
the parent.
"Subsidiary Guarantor" means any Subsidiary of the
Company if and so long as such Subsidiary provides a guarantee
of the Securities substantially in the form of Annex A of this
Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
SectionSection 77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this
Indenture until a successor replaces it and, thereafter, means
the successor.
"Trust Officer" means any officer or assistant officer
of the Trustee assigned by the Trustee to administer its
corporate trust matters.
6
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"U.S. Government Obligations" means direct obligations
(or certificates representing an ownership interest in such
obligations) of the United States of America (including any
agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States of America is pledged
and which are not callable at the issuer's option.
"Wholly-Owned Subsidiary" means a Subsidiary of the
Company, all of the Capital Stock of which (other than
directors' qualifying shares) is owned by the Company or another
Wholly-Owned Subsidiary.
SECTION 1.02. Other Definitions.
Term Defined in Section
---- ------------------
"Agent Member".............................. Appendix
"Authenticating Agent"...................... Appendix
"Bankruptcy Law"............................ 6.01
"covenant defeasance option"................ 8.01(b)
"cross acceleration provision".............. 6.01
"Custodian"................................. 6.01
"Event of Default".......................... 6.01
"Global Security"........................... Appendix
"Initial Securities......................... Appendix
"legal defeasance option"................... 8.01(b)
"Legal Holiday"............................. 10.08
"Paying Agent".............................. 2.03
"Private Exchange Securities"............... Appendix
"Registrar"................................. Appendix
"Successor Company"......................... 5.01
"Transfer Restricted Securities"............ Appendix
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act. This Indenture is subject to the mandatory
provisions of the TIA which are incorporated by reference in and
made a part of this Indenture. The following TIA terms have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
7
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the
Company and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by the TIA by reference to another
statute or defined by an SEC rule have the meanings assigned to
them by such definitions.
SECTION 1.04. Rules of Construction. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "including" means including without limitation;
(4) "or" is not exclusive;
(5) words in the singular include the plural and
words in the plural include the singular;
(6) the principal amount of any noninterest bearing
or other discount security at any date shall be the
principal amount thereof that would be shown on a balance
sheet of the issuer dated such date prepared in accordance
with GAAP; and
(7) all references to the date the Securities were
originally issued shall refer to the Issue Date.
ARTICLE II
The Securities
--------------
SECTION 2.01. Form and Dating. (a) Provisions
relating to the Initial Securities, the Private Exchange
Securities and the Exchange Securities are set forth in the Rule
144A/Regulation S Appendix attached hereto (the "Appendix") the
terms and provisions of which are hereby incorporated in and
expressly made part of this Indenture. The Initial Securities
and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit 1 to the Appendix, the
terms and provisions of which are hereby incorporated in and
8
expressly made part of this Indenture. The Exchange Securities,
the Private Exchange Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A
attached hereto, the terms and provisions of which are hereby
incorporated in and expressly made part of this Indenture. The
Securities may have notations, legends or endorsements required
by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Company).
Each Security shall be dated the date of its authentication.
The terms of the Securities set forth in the Appendix and
Exhibit A are part of the terms of this Indenture.
SECTION 2.02. Execution and Authentication. Two
Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no
longer holds that office at the time the Trustee authenticates
the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized
signatory of the Trustee manually authenticates the Security.
The signature of the Trustee on a Security shall be conclusive
evidence that such Security has been duly and validly
authenticated and issued under this Indenture.
The Trustee shall authenticate and make available for
delivery the Securities as set forth in the Appendix.
The Trustee may appoint an agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate the
Securities. Unless limited by the terms of such appointment,
any such Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes
authentication by such agent. An Authenticating Agent has the
same rights as any Registrar, Paying Agent or agent for service
of notices and demands.
SECTION 2.03. Registrar and Paying Agent. The
Company shall maintain an office or agency where Securities may
be presented for registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be
presented for payment (the "Paying Agent"). The Registrar shall
keep a register of the Securities and of their transfer and
9
exchange. The Company may have one or more co-registrars and
one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent.
The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a
party to this Indenture, which shall incorporate the terms of
the TIA. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify
the Trustee in writing of the name and address of each such
agent. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The
Company or any Wholly-Owned Subsidiary incorporated or organized
within the United States of America may act as Paying Agent,
Registrar, co-registrar or transfer agent. The Company may
remove any Registrar or Paying Agent upon written notice to such
Registrar or Paying Agent and to the Trustee; provided, however,
that no such removal shall become effective until (i) acceptance
of an appointment by a successor as evidenced by an appropriate
agreement entered into by the Company and such successor
Registrar or Paying Agent, as the case may be, and delivered to
the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as Registrar or Paying Agent until the appointment
of a successor in accordance with clause (i) above. The Paying
Agent or the Registrar may resign as such upon 30 days' prior
written notice to the Company and the Trustee; upon resignation
of any Paying Agent or Registrar, the Company shall appoint a
successor Paying Agent or Registrar, as the case may be, no
later than 30 days thereafter and shall provide notice in
writing to the Trustee of such successor Paying Agent or
Registrar.
The Company initially appoints the Trustee as
Registrar and Paying Agent for the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust.
On the Business Day next preceding the day on which any
principal of or interest on any Security is due and payable, the
Company shall deposit with the Paying Agent a sum sufficient to
pay such principal or interest when due. The Company shall
require each Paying Agent (other than the Trustee) to agree in
writing that such Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by such Paying
Agent for the payment of principal of or interest on the
Securities and shall notify the Trustee of any default by the
Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust fund.
10
The Company at any time may require a Paying Agent (other than
the Trustee) to pay all money held by it to the Trustee and to
account for any funds disbursed by such Paying Agent. Upon
complying with this Section 2.04, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further
liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to
the Company, the Trustee shall serve as Paying Agent for the
Securities.
SECTION 2.05. Securityholder Lists. The Trustee
shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses
of Securityholders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee, in writing at least seven
Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities
shall be issued in registered form and shall be transferable
only upon the surrender of a Security for registration of
transfer and in compliance with the Appendix. When a Security
is presented to the Registrar or a co-registrar with a request
to register a transfer, the Registrar shall register the
transfer as requested if the requirements for this Indenture are
met. When Securities are presented the Securities shall be
issued in registered form and shall be transferable only upon
the surrender of a Security for registration to transfer. When
Securities are presented to the Registrar or a co-registrar with
a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the
exchange as requested if the same requirements are met.
SECTION 2.07. Replacement Securities. If a mutilated
Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Holder provides an
affidavit as to such lost, destroyed or stolen Security and
provides satisfactory indemnification, including, if required by
the Trustee or the Company, indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company,
the Trustee, the Paying Agent, the Registrar and any co-
registrar from any loss which any of them may suffer if a
Security is replaced. The Company and the Trustee may charge
the Holder for their expenses in replacing a Security.
11
Every replacement Security is an additional obligation
of the Company under this Indenture.
The provisions of this Section 2.07 are exclusive and
shall exclude (to the extent lawful) all other rights and
remedies with respect to replacement or repayment of mutilated,
lost, destroyed or wrongfully taken Securities.
SECTION 2.08. Outstanding Securities. Securities
outstanding at any time are all Securities authenticated by the
Trustee except for those canceled by it, those delivered to it
for cancelation and those described in this Section 2.08 as not
outstanding. Subject to the provisions of Section 10.06, a
Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it
ceases to be outstanding unless the Trustee and the Company
receive proof satisfactory to them that the replaced Security is
held by a protected purchaser (as such term is defined in
Section 8-303 of the Uniform Commercial Code).
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or at
Stated Maturity money sufficient to pay all principal and
interest payable on that date with respect to the Securities (or
portions thereof) to be redeemed or maturing, as the case may
be, then on and after that date such Securities (or portions
thereof) cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.09. Temporary Securities. Until definitive
Securities are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities, in the name of the Holder,
and deliver them to the Holder in exchange for temporary
Securities representing an equal principal amount in authorized
denominations. Until so exchanged, the Holder of a temporary
Security shall be in all respects entitled to the same benefits
as a Holder of definitive Securities.
SECTION 2.10. Cancelation. The Company at any time
may deliver Securities to the Trustee for cancelation. The
Registrar and the Paying Agent shall forward to the Trustee any
12
Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel
and destroy in accordance with customary procedures (subject to
the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange,
payment or cancelation and maintain a certificate on file of
such destruction unless the Company directs the Trustee in
writing to deliver canceled Securities to the Company. The
Company may not issue new Securities to replace Securities it
has redeemed, paid or delivered to the Trustee for cancelation.
The Trustee shall not authenticate Securities in place of
canceled Securities other than pursuant to the terms of this
Indenture.
SECTION 2.11. Defaulted Interest. If the Company
defaults in a payment of interest on the Securities, the Company
shall pay defaulted interest (plus interest on such defaulted
interest to the extent lawful) in any lawful manner. The
Company may pay the defaulted interest to the Persons who are
Securityholders on a subsequent special record date. The
Company shall fix or cause to be fixed (or upon the Company's
failure to do so the Trustee shall fix pursuant to a written
instruction of Holders of at least a majority in principal
amount of the Securities) any such special record date and
payment date to the reasonable satisfaction of the Trustee,
which specified record date shall not be less than 10 days prior
to the payment date for such defaulted interest, and shall
promptly mail or cause to be mailed to each Securityholder a
notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP Numbers. The Company in issuing
the Securities may use "CUSIP" numbers (if then generally in
use) and, if so, the Trustee shall use "CUSIP" numbers in
notices as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities
or as contained in any notice and that reliance may be placed
only on the other identification numbers printed on the
Securities, and no redemption shall be affected by any defect in
or omission of such numbers.
SECTION 2.13. Issuance of Additional Securities. The
Company shall be entitled to issue Additional Securities under
this Indenture which shall have identical terms as the Initial
Securities issued on the Issue Date, other than with respect to
the date of issuance and, if appropriate, the issue price. The
Initial Securities issued on the Issue Date, any Additional
13
Securities and all Exchange Securities or Private Exchange
Securities issued in exchange therefor shall be treated as a
single class for all purposes under this Indenture.
With respect to any Additional Securities, the Company
shall set forth in a resolution of the Board of Directors and an
Officers' Certificate, a copy of each which shall be delivered
to the Trustee, the following information:
(1) the aggregate principal amount of such Additional
Securities to be authenticated and delivered pursuant to
this Indenture;
(2) the issue price, the issue date and the CUSIP
number of such Additional Securities; provided, however,
that no Additional Securities may be issued unless such
Additional Securities are fungible in all respects for U.S.
Federal income tax purposes with the Securities then
outstanding as set forth in an Opinion of Counsel addressed
to and delivered to the Trustee;
(3) whether such Additional Securities shall be
Transfer Restricted Securities and issued in the form of
Initial Securities as set forth in the Appendix to this
Indenture or shall be issued in the form of Exchange
Securities as set forth in Exhibit A; and
(4) that the Company has complied with this Section
2.13.
ARTICLE III
Redemption
----------
SECTION 3.01. Notices to Trustee. If the Company
elects to redeem Securities pursuant to paragraph 5 of the
Securities as set forth in Exhibit 1 to the Appendix, it shall
notify the Trustee in writing of the redemption date, the
principal amount of Securities to be redeemed and the paragraph
of the Securities pursuant to which the redemption will occur.
The Company shall give each notice to the Trustee
provided for in this Section at least 45 days before the
redemption date unless the Trustee consents to a shorter period.
Such notice shall be accompanied by an Officers' Certificate and
an Opinion of Counsel to the effect that such redemption will
comply with the conditions herein.
14
SECTION 3.02. Selection of Securities to Be Redeemed.
If fewer than all the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed pro rata or by lot or
by a method that complies with applicable legal and securities
exchange requirements, if any, and that the Trustee in its sole
discretion shall deem to be fair and appropriate and in
accordance with methods generally used at the time of selection
by fiduciaries in similar circumstances. The Trustee shall make
the selection from outstanding Securities not previously called
for redemption. The Trustee may select for redemption portions
of the principal of Securities that have denominations larger
than $1,000. Securities and portions of them the Trustee
selects to be redeemed shall be in principal amounts of $1,000
or a whole multiple of $1,000. Provisions of this Indenture
that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall
notify the Company promptly of the Securities or portions of
Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days
but not more than 60 days before a date for redemption of
Securities, the Company shall mail a notice of redemption by
first-class mail to each Holder of Securities to be redeemed at
such Holder's registered address.
The notice shall identify the Securities to be
redeemed and shall state:
(1) the redemption date;
(2) a description of how the redemption price will be
calculated;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(5) if fewer than all the outstanding Securities are
to be redeemed, the identification and principal amounts of
the particular Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment, interest on Securities (or portion
thereof) called for redemption ceases to accrue on and
after the redemption date; and
15
(7) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed
in such notice or printed on the Securities.
The Trustee shall give the notice of redemption in the
Company's name and at the Company's expense. The Company shall
provide the Trustee with the information required by this
Section.
SECTION 3.04. Effect of Notice of Redemption. Once
notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the
redemption price stated in the notice. Upon surrender to the
Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the
redemption date (subject to the right of Holders of record on
the relevant record date to receive interest due on the related
interest payment date). Failure to give notice or any defect in
the notice to any Holder shall not affect the validity of the
notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. On the
Business Day next preceding a redemption date, the Company shall
deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on such date
other than Securities or portions of Securities called for
redemption which have been delivered by the Company to the
Trustee for cancelation. On or after the redemption date,
interest shall cease to accrue on Securities or portions thereof
called for redemption so long as the Company has deposited with
the Paying Agent funds sufficient to pay the principal of, plus
accrued but unpaid interest, if any, on the Securities to be
redeemed.
SECTION 3.06. Securities Redeemed in Part. Upon
surrender of a Security that is redeemed in part, the Company
shall execute and the Trustee shall authenticate for the Holder
(at the Company's expense) a new Security equal in principal
amount to the unredeemed portion of the Security surrendered.
16
ARTICLE IV
Covenants
---------
SECTION 4.01. Payment of Securities. The Company
shall promptly pay the principal of and interest on the
Securities on the dates and in the manner provided in the
Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee
or the Paying Agent holds in accordance with this Indenture
money sufficient to pay all principal and interest then due.
Notwithstanding anything to the contrary contained in
this Indenture, the Company may, to the extent it is required to
do so by law, deduct or withhold income or other similar taxes
imposed by applicable law from principal or interest payments
hereunder.
The Company shall pay interest on overdue principal at
the rate specified therefor in the Securities, and subject to
Section 2.11, it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency for
Registration of Transfer, Exchange and Payment of Securities.
So long as any of the Securities shall remain outstanding, the
Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, State of New York, where the
Securities may be surrendered for exchange or registration of
transfer as in this Indenture provided, and where notices and
demands to or upon the Company in respect to the Securities may
be served, and where the Securities may be presented or
surrendered for payment. The Company may also from time to time
designate one or more other offices or agencies where Securities
may be presented or surrendered for any and all such purposes
and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an
office or agency in the Borough of Manhattan, The City of New
York, State of New York for such purposes. The Company shall
give to the Trustee prompt written notice of the location of any
such office or agency and of any change of location thereof.
The Company initially appoints the Trustee, Wachovia Bank,
National Association, 1 Penn Plaza, Suite 1414, New York, New
York 10119, for each of said purposes. In case the Company
shall fail to maintain any such office or agency or shall fail
to give such notice of the location or of any change in the
location thereof, such surrenders, presentations and demands may
17
be made and notices may be served at the principal office of the
Trustee, and the Company hereby appoints the Trustee its agent
to receive at the aforesaid office all such surrenders,
presentations, notices and demands. The Trustee shall give the
Company prompt notice of any change in location of the Trustee's
principal office.
SECTION 4.03. Appointment to Fill a Vacancy in the
Office of Trustee. The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, shall appoint, in the
manner provided in Section 7.08, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 4.04. Provision as to Paying Agent. (a) If
the Company shall appoint a Paying Agent other than the Trustee,
it shall cause such Paying Agent to execute and deliver to the
Trustee an instrument in which such agent shall undertake,
subject to the provisions of this Section 4.04,
(1) that it shall hold all sums held by it as such
agent for the payment of the principal of or interest on
the Securities such sums which have been paid to it by the
Company (or by any other obligor on the Securities) in
trust for the benefit of the Holders of the Securities and
shall notify the Trustee of the receipt of sums to be so
held,
(2) that it shall give the Trustee notice of any
failure by the Company (or by any other obligor on the
Securities) to make any payment of the principal of or
interest on the Securities when the same shall be due and
payable,
(3) that it shall at any time during the continuance
of any Event of Default specified in Section 6.01(1) or
6.01(2), upon the written request of the Trustee, deliver
to the Trustee all sums so held in trust by it, and
(4) acknowledge, accept and agree to comply in all
aspects with the provisions of this Indenture relating to
the duties, rights and liabilities of such Paying Agent.
(b) If the Company shall not act as its own Paying
Agent, it shall, by the opening of business (New York City time)
on each due date of the principal and interest on any Security,
deposit with such Paying Agent a sum in same day funds
sufficient to pay the principal of or interest so becoming due,
such sum to be held in trust for the benefit of the holders of
18
Securities entitled to such principal of or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of its failure so to act.
(c) If the Company shall act as its own Paying Agent,
it shall, by the opening of business (New York City time) on
each due date of the principal and interest on any Security, set
aside, segregate and hold in trust for the benefit of the
persons entitled thereto, a sum sufficient to pay such principal
or interest so becoming due and shall notify the Trustee of any
failure to take such action.
(d) Anything in this Section 4.04 to the contrary
notwithstanding, the Company may, at any time, for the purpose
of obtaining a satisfaction and discharge of this Indenture, or
for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by it, or any Paying Agent hereunder, as
required by this Section 4.04, such sums to be held by the
Trustee upon the trusts herein contained.
(e) Anything in this Section 4.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section 4.04 is subject to the provisions of
Sections 8.04 and 8.06.
SECTION 4.05. Maintenance of Corporate Existence. So
long as any of the Securities shall remain outstanding, the
Company shall at all times (except as otherwise provided or
permitted elsewhere in this Indenture) do or cause to be done
all things necessary to preserve and keep in full force and
effect its corporate existence and franchises.
SECTION 4.06. Limitation on Liens. So long as any of
the Securities are outstanding, the Company shall not, and shall
not permit any Restricted Subsidiary to, create, incur, assume
or suffer to exist any Lien upon any Principal Property or
shares of stock or Indebtedness of any Restricted Subsidiary to
secure any Indebtedness, without effectively providing that the
Securities then outstanding shall (so long as such other
Indebtedness shall be so secured) be equally and ratably
secured; provided, however, that this restriction shall not
apply to or prevent the creation or existence of:
(a) Liens for taxes not yet due or that are being
contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are
maintained on the books of the Company or its Restricted
Subsidiaries, as the case may be, in conformity with GAAP;
19
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in
the ordinary course of business securing obligations that
are not overdue for a period of more than 90 days or that
are being contested in good faith by appropriate
proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social
security legislation and deposits securing liability to
insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business that, in the aggregate, are not substantial in
amount and that do not in any case materially detract from
the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary;
(f) Liens in existence on the Issue Date;
(g) Liens arising in connection with trade letters of
credit issued for the account of the Company or a
Restricted Subsidiary securing the reimbursement
obligations in respect of such letters of credit, provided
that such Liens encumber only the property being acquired
through payments made under such letters of credit or the
documents of title and shipping and insurance documents
relating to such property;
(h) Liens upon intellectual property acquired by the
Company or a Restricted Subsidiary (such as software)
securing the obligation of the Company or such Restricted
Subsidiary to make royalty or similar payments to the
seller of such intellectual property, provided that such
Liens encumber only the intellectual property to which such
payments relate;
(i) any Lien upon any property or assets created at
the time of the acquisition, purchase, lease, improvement
20
or development of property or assets used or held by the
Company or any Restricted Subsidiary or within one year
after such time to secure all or a portion of the purchase
price or lease for, or the costs of improvement or
development of, such property or assets;
(j) any Lien upon any property or assets existing
thereon at the time of the acquisition thereof (provided
such Lien was not incurred in anticipation of such
acquisition) by the Company or any Restricted Subsidiary
(whether or not the obligations secured thereby are assumed
by the Company or any Restricted Subsidiary);
(k) any Lien in favor of the Company or any
Restricted Subsidiary;
(l) Liens in respect of judgments that do not
constitute an Event of Default;
(m) Liens to secure any extension, renewal,
refinancing or refunding (or successive extensions,
renewals, refinancings or refundings), in whole or in part,
of any Indebtedness secured by Liens referred to in the
foregoing clauses (f) through (l) or Liens created in
connection with any amendment, consent or waiver relating
to such Indebtedness, so long as such Lien does not extend
to any other property and the Indebtedness so secured does
not exceed the fair market value (as determined by the
Board of Directors) of the assets subject to such Liens at
the time of such extension, renewal, refinancing or
refunding, or such amendment, consent or waiver, as the
case may be; or
(n) any Lien securing any Indebtedness in an amount
which, together with, without duplication, (1) all other
Indebtedness secured by a Lien that is not otherwise
permitted by the provisions of this Section 4.06, and
(2) all Attributable Debt of the Company and its
Subsidiaries with respect to Sale and Leaseback
Transactions permitted only under Section 4.07(e), and
(3) any indebtedness incurred by a Subsidiary of the
Company pursuant to clause (x) or (y) of Section 4.08, does
not at the time of the incurrence of the Indebtedness so
secured exceed 5% of the Company's Consolidated Total
Assets.
SECTION 4.07. Limitation on Sale and Leaseback
Transactions. So long as any Securities are outstanding, the
21
Company shall not enter into, and shall not permit any
Restricted Subsidiary to enter into, any Sale and Leaseback
Transaction with respect to any Principal Property unless:
(a) such Sale and Leaseback Transaction involves a
lease for a term of not more than five years;
(b) such Sale and Leaseback Transaction is between
the Company and a Subsidiary Guarantor or between Subsidiary
Guarantors;
(c) the Company or a Restricted Subsidiary would be
entitled to incur Indebtedness secured by a Lien on such
property or assets involved in such Sale and Leaseback
Transaction without equally and ratably securing the Securities
pursuant to Section 4.06 above;
(d) the cash proceeds of such Sale and Leaseback
Transaction are at least equal to the fair market value thereof
(as determined in good faith by the Board of Directors) or the
debt attributable thereto and the Company applies an amount
equal to the greater of the net proceeds of such sale or the
Attributable Debt with respect to such Sale and Leaseback
Transaction within 270 days of such sale to either (or a
combination) of (1) the retirement (other than the mandatory
retirement, mandatory prepayment or sinking fund payment or by
payment at maturity) of long-term debt of the Company or a
Restricted Subsidiary (other than long-term debt that is
subordinated to the Securities) or (2) the acquisition,
purchase, improvement or development of other comparable
property, including the acquisition of other businesses; or
(e) any Sale and Leaseback Transaction in an amount
which, together with, without duplication, (1) all Attributable
Debt of the Company and its Restricted Subsidiaries under this
clause (e), (2) all other Indebtedness secured by a Lien that is
not otherwise permitted by the provisions of Sections 4.06(a)
through (m), and (3) any Indebtedness incurred by a Subsidiary
of the Company pursuant to clause (x) or (y) of Section 4.08,
does not at the time of such transaction exceed 5% of
Consolidated Total Assets.
SECTION 4.08. Limitation on Subsidiary Indebtedness
and Preferred Stock. So long as any Securities are outstanding,
the Company shall not cause or permit its direct or indirect
Subsidiaries to incur, create, issue, assume or permit to exist
any Indebtedness or Preferred Stock (other than Permitted
Indebtedness) unless the aggregate principal amount of such
22
Indebtedness or Preferred Stock, when taken together with,
without duplication, (1) all other Indebtedness (other than
Permitted Indebtedness) incurred pursuant to this Section 4.08,
(2) all other Indebtedness secured by a Lien that is not
otherwise permitted by the provisions of Section 4.06(a) through
(m), and (3) any Sale Leaseback Transactions permitted only
under Section 4.07(e), does not at the time of the incurrence
exceed the greater of (x) $170 million and (y) 5% of the
Company's Consolidated Total Assets. For the purposes of this
Section 4.08, the aggregate principal amount of any Preferred
Stock shall be the greater of (i) the aggregate maximum
liquidation value of such Preferred Stock and (ii) the maximum
aggregate mandatory redemption or aggregate mandatory repurchase
price with respect to such Preferred Stock.
SECTION 4.09. Compliance Certificate. The Company
shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company an Officers' Certificate stating
that in the course of the performance by the signers of their
duties as Officers of the Company they would normally have
knowledge of any Default or Event of Default and whether or not
the signers know of any Default or Event of Default that
occurred during such period. If they do, the certificate shall
describe the Default or Event of Default, its status and what
action the Company is taking or proposes to take with respect
thereto. The Company also shall comply with TIA Section 314(a)(4).
SECTION 4.10. Further Instruments and Acts. Upon
request of the Trustee, the Company shall execute and deliver
such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
SECTION 4.11. SEC Reports. Notwithstanding that the
Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file
with the SEC (so long as permitted by the SEC) and provide the
Trustee and Securityholders with such annual reports and such
information, documents and other reports as are specified in
Sections 13 and 15(d) of the Exchange Act and applicable to a
U.S. corporation subject to such Sections, such information,
documents and other reports to be so filed and provided at the
times specified for the filing of such information, documents
and reports under such Sections. In addition, at any time that
the Company is neither subject to Section 13 or 15(d) of the
Exchange Act, nor exempt from reporting pursuant to Rule 12g3-
2(b) under the Exchange Act, the Company shall furnish to the
23
Holders of the Initial Securities and to prospective investors
in such Initial Securities, upon the requests of such Holders,
any information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act so long as such
Securities are not freely transferable under the Securities Act.
The Company also shall comply with the other provisions of TIA
Section 314(a).
ARTICLE V
Successor Company
-----------------
SECTION 5.01. When Company May Merge or Transfer
Assets. The Company shall not consolidate or merge with or into
any Person, or sell, lease, convey or otherwise dispose of all
or substantially all of its assets, or assign any of its
obligations under this Indenture or the Securities, to any
Person, unless:
(1) the Person formed by or surviving such
consolidation or merger (if other than the Company), or to
which such sale, lease, conveyance or other disposition or
arrangement shall be made (collectively, the "Successor
Company"), is a corporation organized and existing under
the laws of the United States or any State thereof or the
District of Columbia and the Successor Company assumes by
supplemental indenture in a form reasonably satisfactory to
the Trustee all of the obligations of the Company under
this Indenture and under the Securities;
(2) immediately after giving effect to such
transaction no Default shall have occurred and be
continuing; and
(3) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and
such supplemental indenture (if any) comply with this
Indenture.
The Successor Company shall be the successor to the
Company and shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
Indenture, and the predecessor Company (except in the case of a
lease) shall be released from the obligation to pay the
principal of and interest on the Securities.
24
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of
Default" occurs if:
(1) the Company defaults in any payment of interest
on any Security when the same becomes due and payable and
such default continues for a period of 30 days;
(2) the Company defaults in the payment of the
principal of any Security when the same becomes due and
payable at its Stated Maturity, upon optional redemption,
upon declaration or otherwise;
(3) the Company fails to comply with Section 5.01;
(4) the Company fails to comply with any of its
agreements in the Securities or this Indenture (other than
those referred to in clauses (1), (2) or (3) above) and
such failure continues for 60 days after the notice
specified below;
(5) any default or event of default under any
Indebtedness of the Company or any of its Subsidiaries
(other than any indebtedness of the Company or any
Subsidiary to the seller of a business or asset incurred in
connection with the purchase thereof) which default or
event of default results in at least $50.0 million of
aggregate principal amount of such Indebtedness being
declared due and payable prior to maturity (the "cross
acceleration provision");
(6) failure by the Company or any of its Subsidiaries
to pay at maturity or otherwise when due (after giving
effect to any applicable grace period) at least $50.0
million aggregate principal amount of Indebtedness at any
one time;
(7) the Company pursuant to or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
25
(C) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(D) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws
relating to insolvency; or
(8) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case;
(B) appoints a Custodian of the Company or for
any substantial part of its property; or
(C) orders the winding up or liquidation of the
Company;
or any similar relief is granted under any foreign laws and
the order, decree or relief remains unstayed and in effect
for 60 days.
The foregoing shall constitute Events of Default
whatever the reason for any such Event of Default and whether it
is voluntary or involuntary or is effected by operation of law
or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Title 11, United
States Code, or any similar Federal or state law for the relief
of debtors. The term "Custodian" means any receiver, trustee,
assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
Notwithstanding the foregoing, a Default under
Section 6.01(4) shall not constitute an Event of Default until
the Trustee or the Holders of at least 25% in principal amount
of the outstanding Securities notify the Company of the Default
and the Company does not cure such Default within the time
specified in Section 6.01(4) after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default."
26
The Company shall deliver to the Trustee, within
30 days after the occurrence thereof, written notice in the form
of an Officers' Certificate of any Event of Default under
clauses (5) and (6) and any event which with the giving of
notice or the lapse of time would become an Event of Default
under clause (4) or (6), its status and what action the Company
is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default
(other than an Event of Default specified in Section 6.01(7) or
(8)) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 25% in outstanding principal
amount of the Securities by notice to the Company and the
Trustee, may declare the principal of and accrued and unpaid
interest on all the Securities to be due and payable. Upon such
a declaration, such principal and interest shall be due and
payable immediately. If an Event of Default specified in
Section 6.01(7) or (8) occurs, the principal of and accrued and
unpaid interest on all the Securities shall ipso facto become
and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. The
Holders of a majority in principal amount of the Securities
outstanding by notice to the Trustee may rescind an acceleration
and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration. No
such rescission shall affect any subsequent Default or Event of
Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default
occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal of or interest on the
Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of
them in the proceeding. A delay or omission by the Trustee or
any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders
of a majority in outstanding principal amount of the Securities
by notice to the Trustee may waive an existing Default and its
27
consequences except (i) a Default in the payment of the
principal of or interest on a Security or (ii) a Default in
respect of a provision that under Section 9.02 cannot be amended
without the consent of each Holder affected. When a Default is
waived, it is deemed cured, but no such waiver shall extend to
any subsequent or other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a
majority in outstanding principal amount of the Securities may
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any
trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or
this Indenture or, subject to Section 7.01, that the Trustee
reasonably determines is unduly prejudicial to the rights of
other Holders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any
other action deemed proper by the Trustee that is not
inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. Except to enforce
the right to receive payment of principal or interest when due,
no Holder may pursue any remedy with respect to this Indenture
or the Securities unless:
(1) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in outstanding
principal amount of the Securities make a written request
to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any loss,
liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer
of security or indemnity; and
(5) the Holders of a majority in principal amount of
the Securities do not give the Trustee a direction
inconsistent with the request during such 60-day period.
28
A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority
over another Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of and interest on
the Securities held by such Holder, on or after the respective
due dates expressed in the Securities, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee. If an
Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing, the Trustee may recover judgment in its own name
and as Trustee of an express trust against the Company for the
whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Holders allowed in any judicial
proceedings relative to the Company, its Subsidiaries or their
respective creditors or properties and, unless prohibited by law
or applicable regulations, may vote on behalf of the Holders in
any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the compensation,
expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under
Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects
any money or property pursuant to this Article VI, it shall pay
out the money or property in the following order:
FIRST: to the Trustee for amounts due under
Section 7.07;
SECOND: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without
preference or priority of any kind, according to the
29
amounts due and payable on the Securities for principal and
interest, respectively; and
THIRD: to the Company.
Notwithstanding anything to the contrary in Section
2.11, the Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10. At least 15
days before such record date, the Company shall mail to each
Holder and the Trustee a notice that states the record date, the
payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for
the enforcement of any right or remedy under this Indenture or
in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 6.07 or a
suit by Holders of more than 10% in outstanding principal amount
of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The
Company (to the extent it may lawfully do so) shall not at any
time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such
law, and shall not hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE VII
Trustee
-------
SECTION 7.01. Duties of Trustee. (a) If an Event of
Default has occurred and is continuing, the Trustee shall
exercise the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a
30
prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act
or its own wilful misconduct, except that:
(1) this paragraph does not limit the effect of
Section 7.01(b);
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05.
(d) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Company.
(e) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.
(f) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties
31
hereunder or in the exercise of any of its rights or powers, if
it shall have reasonable grounds to believe that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(g) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this
Section 7.01 and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee
may rely on any document believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers; provided, however,
that the Trustee's conduct does not constitute wilful misconduct
or negligence.
(e) The Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters
relating to this Indenture and the Securities shall be full and
complete authorization and protection from liability in respect
to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such
counsel.
SECTION 7.03. Individual Rights of Trustee. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the
Company or its Affiliates with the same rights it would have if
it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
32
SECTION 7.04. Trustee's Disclaimer. The Trustee
shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities, it
shall not be accountable for the Company's use of the proceeds
from the Securities, it shall not be responsible for the use or
application of any money received by any Paying Agent (other
than itself as Paying Agent), and it shall not be responsible
for any statement of the Company in this Indenture or in any
document issued in connection with the sale of the Securities or
in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Defaults. If a Default or
Event of Default occurs and is continuing and it is known to the
Trustee, the Trustee shall mail to each Holder notice of the
Default or Event of Default within 60 days after it occurs or
promptly upon the Trustee's attaining knowledge of such Default
or Event of Default, whichever comes first. Except in the case
of a Default or Event of Default in payment of principal of, or
interest on, any Security, the Trustee may withhold the notice
if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests
of Holders.
SECTION 7.06. Reports by Trustee to Holders. As
promptly as practicable after each May 15 beginning with the
May 15 following the date of this Indenture, and in any event
prior to July 15 in each year, if required by TIA Section 313, the
Trustee shall mail to each Holder a brief report dated as of
such May 15 that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b). The Trustee shall also transmit
by mail all reports required by TIA Section 313(c).
A copy of each report at the time of its mailing to
Holders shall be filed by the Company with the SEC and each
stock exchange (if any) on which the Securities are listed. The
Company agrees to notify promptly the Trustee whenever the
Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The
Company shall pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation for its
services. The Trustee's compensation shall not be limited by
any law on compensation of a Trustee of an express trust. The
Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, costs of preparing and reviewing
33
reports, certificates and other documents, costs of preparation
and mailing of notices to Holders and reasonable costs of
counsel retained by the Trustee in addition to the compensation
for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Company
shall indemnify and hold harmless the Trustee against any and
all loss, liability or expense (including reasonable attorneys'
fees) incurred by it in connection with the administration of
this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture
(including this Section 7.07) and of defending itself against
any claims (whether asserted by any Holder, the Company or
otherwise). The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company
of its obligations hereunder. The Company shall defend the
claim and the Trustee may have separate counsel and the Company
shall pay the fees and expenses of such counsel. The Company
need not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Trustee through the
Trustee's own wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this
Section 7.07, the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the
Trustee other than money or property held in trust to pay
principal of and interest on particular Securities. The
Trustee's right to receive payment of any amounts due under this
Section 7.07 shall not be subordinate to any other liability or
indebtedness of the Company.
The Company's payment obligations pursuant to this
Section 7.07 shall survive the discharge of this Indenture and
the resignation or removal of the Trustee. When the Trustee
incurs expenses after the occurrence of a Default specified in
Section 6.01(7) or (8) with respect to the Company, the expenses
are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee
may resign at any time by so notifying the Company. The Holders
of a majority in outstanding principal amount of the Securities
may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
34
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge
of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of
acting.
If the Trustee resigns, is removed by the Company, is
removed by the Holders of a majority in outstanding principal
amount of the Securities and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event
being referred to herein as the retiring Trustee), the Company
shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to the Securityholders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in
Section 7.07.
If a successor Trustee does not take office within
60 days after the retiring Trustee resigns or is removed, the
retiring Trustee or the Holders of 10% in outstanding principal
amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a
successor Trustee.
Notwithstanding the replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under
Section 7.07 shall continue for the benefit of the retiring
Trustee.
SECTION 7.09. Successor Trustee by Merger. If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets
to, another corporation or banking association, the resulting,
35
surviving or transferee corporation or banking association
without any further act shall be the successor Trustee.
If at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the
trusts created by this Indenture, any of the Securities shall
have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any
predecessor Trustee, and deliver such Securities so
authenticated; and if at that time any of the Securities shall
not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall
have.
SECTION 7.10. Eligibility; Disqualification. The
Trustee shall at all times satisfy the requirements of TIA
Section 310(a). The Trustee shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply
with TIA Section 310(b); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities or certificates of
interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims
Against Company. The Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (1) the Company delivers to the Trustee
all outstanding Securities (other than Securities replaced
pursuant to Section 2.07) for cancelation or (2) all outstanding
Securities have become due and payable, whether at Stated
Maturity or on a redemption date as a result of the mailing of a
notice of redemption pursuant to Article 3 hereof and the
36
Company irrevocably deposits with the Trustee funds sufficient
to pay at Stated Maturity or upon redemption all outstanding
Securities, including interest thereon to Stated Maturity or
such redemption date (other than Securities replaced pursuant to
Section 2.07), and if in either case the Company pays all other
sums payable hereunder by the Company, then this Indenture
shall, subject to Section 8.01(c), cease to be of further
effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company
(accompanied by an Officers' Certificate and an Opinion of
Counsel stating that all conditions precedent specified herein
relating to the satisfaction and discharge of this Indenture
have been complied with and at the cost and expense of the
Company).
(b) Subject to Sections 8.01(c) and 8.02, the Company
at any time may terminate (1) all its obligations under the
Securities and this Indenture ("legal defeasance option") or
(2) its obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06,
4.07 and 4.08, and the operation of Sections 6.01(3), 6.01(4),
6.01(5) and 6.01(6) ("covenant defeasance option"); provided,
however, no deposit under this Article VIII shall be effective
to terminate the obligations of the Company under the Securities
or this Indenture prior to 91 days following any such deposit.
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option,
payment of the Securities may not be accelerated because of an
Event of Default. If the Company exercises its covenant
defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in
Sections 6.01(3), 6.01(5) or 6.01(6).
Upon satisfaction of the conditions set forth herein
and upon request of the Company, the Trustee shall acknowledge
in writing the discharge of those obligations that the Company
terminates.
(c) Notwithstanding the provisions of
Sections 7.01(a) and (b), the Company's obligations in
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and
this Article VIII shall survive until the Securities have been
paid in full. Thereafter, the Company's obligations in
Sections 7.07, 8.04 and 8.05 shall survive.
37
SECTION 8.02. Conditions to Defeasance. The Company
may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Company irrevocably deposits in trust with
the Trustee money or U.S. Government Obligations for the
payment of principal of and interest on the Securities to
Stated Maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent
accountants expressing their opinion that the payments of
principal and interest when due and without reinvestment on
the deposited U.S. Government Obligations plus any
deposited money without reinvestment will provide cash at
such times and in such amounts as will be sufficient to pay
principal and interest when due on all the Securities to
Stated Maturity or redemption, as the case may be;
(3) 91 days pass after the deposit is made and during
the 91-day period no Default specified in Sections 6.01(7)
or (8) occurs which is continuing at the end of the
periods;
(4) the deposit does not constitute a default under
any other agreement binding on the Company;
(5) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the
deposit does not constitute, or is qualified as, a
regulated investment company under the Investment Company
Act of 1940;
(6) in the case of the legal defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (B) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Securityholders
will not recognize income, gain or loss for Federal income
tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such legal defeasance had not occurred;
38
(7) in the case of the covenant defeasance option,
the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Securityholders shall not
recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and shall
be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred;
(8) the Securityholders shall have a perfected
security interest under applicable law in the cash or U.S.
Government Obligations deposited pursuant to
Section 8.02(1) above;
(9) the Company shall have delivered to the Trustee
an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, to the effect that, after the
passage of 91 days following the deposit, the trust funds
shall not be subject to any applicable bankruptcy,
insolvency, reorganization or similar law affecting
creditors' rights generally;
(10) such defeasance shall not cause the Trustee to
have a conflicting interest with respect to any securities
of the Company; and
(11) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance and discharge of
the Securities and this Indenture as contemplated by this
Article VIII have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at
a future date in accordance with Article III.
SECTION 8.03. Application of Trust Money. The
Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article VIII. It shall apply
the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the
Securities.
SECTION 8.04. Repayment to Company. The Trustee and
the Paying Agent shall promptly turn over to the Company upon
request any excess money or securities held by them upon payment
of all the obligations under this Indenture.
39
Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal of
or interest on the Securities that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money
must look to the Company for payment as general creditors.
SECTION 8.05. Indemnity for U.S. Government
Obligations. The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or
assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government
Obligations.
SECTION 8.06. Reinstatement. If the Trustee or
Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with this Article VIII by reason of
any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the
Company under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to
this Article VIII until such time as the Trustee or Paying Agent
is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided,
however, that, if the Company has made any payment of interest
on or principal of any Securities because of the reinstatement
of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment
from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE IX
Amendments
----------
SECTION 9.01. Without Consent of Holders. The
Company and the Trustee may amend this Indenture or the
Securities without notice to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
40
provided, however, that the uncertificated Securities are
issued in registered form for purposes of Section 163(f) of
the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the
Code;
(4) to add guarantees with respect to the Securities,
or to secure the Securities.
(5) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power
herein conferred upon the Company;
(6) to make any change that does not adversely affect
the rights of any Holder; or
(7) to comply with any requirement of the SEC in
connection with qualifying this Indenture under the TIA.
After an amendment under this Section 9.01 becomes
effective, the Company shall mail to each Securityholder a
notice briefly describing such amendment. The failure to give
such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this
Section 9.01.
SECTION 9.02. With Consent of Holders. The Company
and the Trustee may amend this Indenture or the Securities
without notice to any Securityholder but with the written
consent of the Holders of at least a majority in principal
amount of the Securities then outstanding (including consents
obtained in connection with a tender offer or exchange for the
Securities). However, without the consent of each
Securityholder affected thereby, an amendment may not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment;
(2) reduce the rate of or extend the time for payment
of interest on any Security;
(3) reduce the principal of, or extend the Stated
Maturity of, any Security;
(4) make any Security payable in money other than
that stated in such Security;
41
(5) reduce the amount payable upon redemption of any
Security or change the time at which any Security may be
redeemed in accordance with Article III;
(6) modify or affect in any manner adverse to the
Holders the right of any Holder of the Securities to
receive payment of principal of and interest on such
Holder's Securities on or after the due dates therefor or
to institute suit for the enforcement of any payment on or
with respect to such Holder's Securities;
(7) make any change in Section 6.04 or 6.07 or the
second sentence of this Section 9.02; or
(8) make any change in the ranking or priority of any
Security that would adversely affect the holders of the
Securities.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment under this Section 8.02 becomes
effective, the Company shall mail to Securityholders a notice
briefly describing such amendment. The failure to give such
notice to all Securityholders, or any defect therein, shall not
impair or affect the validity of an amendment under this
Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities shall comply
with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and
Waivers. A consent to an amendment or a waiver by a Holder of a
Security shall bind the Holder and every subsequent Holder of
that Security or portion of the Security that evidences the same
debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any
such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder's Security or portion of the Security
if the Trustee receives the notice of revocation before the date
the amendment or waiver becomes effective. After an amendment
or waiver becomes effective, it shall bind every Holder. An
amendment or waiver becomes effective upon the execution of such
amendment or waiver by the Trustee and the Company.
42
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled
to give their consent or take any other action described above
or required or permitted to be taken pursuant to this Indenture.
If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any
consent previously given or to take any such action, whether or
not such Persons continue to be Holders after such record date.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment changes the terms of a Security, the Trustee may
require the Holder of the Security to deliver it to the Trustee.
The Trustee may, but shall not be required to, place an
appropriate notation on the Security regarding the changed terms
and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new
Security that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Security shall not affect
the validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The
Trustee shall sign any amendment authorized pursuant to this
Article IX if the amendment does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the
Company nor any Affiliate of the Company shall, directly or
indirectly, pay or cause to be paid any consideration, whether
by way of interest, fee or otherwise, to any Holder for or as an
inducement to any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Securities unless
such consideration is offered to be paid to all Holders that so
consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or
agreement.
43
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this
Indenture by the TIA, the provision required by the TIA shall
control.
SECTION 10.02. Notices. Any notice or communication
shall be in writing and delivered in person or mailed by first-
class mail addressed as follows:
if to the Company:
Laboratory Corporation of America Holdings
358 South Main Street
Burlington, NC 27215
Attention: Chief Legal Officer
if to the Trustee:
Wachovia Bank, National Association
401 South Tryon Street, 12th Floor
Charlotte, NC 28288-1179
Attention: Corporate Trust Bond
Administration
The Company or the Trustee by notice to the others may
designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Holder shall
be mailed to the Holder at the Holder's address as it appears on
the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder
or any defect in it shall not affect its sufficiency with
respect to other Holders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION 10.03. Communication by Holders with other
Holders. Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture
44
or the Securities. The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).
SECTION 10.04. Certificate and Opinion as to
Conditions Precedent. Upon any request or application by the
Company to the Trustee to take or refrain from taking any action
under this Indenture, the Company shall furnish to the Trustee
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of such counsel, all such conditions precedent have
been complied with.
Notwithstanding the foregoing, it is understood that no Opinion
of Counsel or Officers' Certificate shall be required pursuant
to this Section 10.04 in connection with the issuance of the
Initial Securities on the Issue Date.
SECTION 10.05. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance
with a covenant or condition provided for in this Indenture
shall include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such
individual, he has made such examination or investigation
as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion
of such individual, such covenant or condition has been
complied with.
45
SECTION 10.06. When Securities Disregarded. In
determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or by any Person,
directly or indirectly, controlling or controlled by or under
direct or indirect common control with the Company shall be
disregarded and deemed not to be outstanding, except that, for
the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent,
only Securities which the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such
determination.
SECTION 10.07. Rules by Trustee, Paying Agent and
Registrar. The Trustee may make reasonable rules for action by
or a meeting of Holders. The Registrar and the Paying Agent may
make reasonable rules for their functions.
SECTION 10.08. Legal Holidays. A "Legal Holiday" is
a Saturday, a Sunday or a day on which commercial banking
institutions are not required to be open in the State of New
York. If a payment date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall
not be affected.
SECTION 10.09. Governing Law. This Indenture and the
Securities shall be governed by, and construed and interpreted
in accordance with, the laws of the State of New York but
without giving effect to applicable principles of conflicts of
law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 10.10. No Recourse Against Others. A
director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim
based on, in respect of or by reason of such obligations or
their creation. By accepting a Security, each Holder shall
waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the
Securities.
SECTION 10.11. Successors. All agreements of the
Company in this Indenture and the Securities shall bind their
46
respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 10.12. Multiple Originals. The parties may
sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the
same agreement. One signed copy is enough to prove this
Indenture.
SECTION 10.13. Table of Contents; Headings. The
table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered
a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
47
IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed as of the date first written
above.
LABORATORY CORPORATION OF AMERICA
HOLDINGS,
By: /s/ Wesley R. Elingburg
---------------------------
Name: Wesley R. Elingburg
Title: Executive Vice President
and Chief Financial Officer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Allison Lancaster-Poole
------------------------------
Name: Allison Lancaster-Poole
Title: Assistant Vice President
48
ANNEX A
[FORM OF SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY SUBSIDIARY GUARANTORS]
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture"), dated as of [ ] among [ ] (the "Subsidiary
Guarantor"), a [ ] corporation and a subsidiary of Laboratory
Corporation of America Holdings, a Delaware corporation (or its
permitted successor) (the "Company"), the Company, [other
Subsidiary Guarantors] and Wachovia Bank, National Association,
as Trustee under the Indenture (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and
delivered to the Trustee an indenture (the "Indenture"), dated
as of January 31, 2003, providing for the issuance of an
aggregate principal amount of $350,000,000 of 5 1/2% Senior Notes
due February 1, 2013 (the "Securities");
WHEREAS, in its discretion, the Company may have the
Subsidiary Guarantor to execute and deliver to the Trustee a
Guaranty Agreement pursuant to which the Subsidiary Guarantor
will Guarantee payment of the Securities; and
WHEREAS, pursuant to Section 9.01(4) of the Indenture,
the Trustee is authorized to execute and deliver this
Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and
for good and valuable consideration, the receipt of which is
hereby acknowledged, the Company, the Subsidiary Guarantor[, the
other Subsidiary Guarantors] and the Trustee mutually covenant
and agree for the equal and ratable benefit of the Holders of
the Securities as follows:
SECTION 1. Capitalized Terms. Capitalized terms used
herein but not defined shall have the meanings assigned to them
in the Indenture.
SECTION 2. Guaranties. The Subsidiary Guarantor
hereby unconditionally and irrevocably guarantees[, jointly and
severally with the other Guarantors], to each Holder and to the
Trustee and its successors and assigns (a) the full and punctual
payment of principal of and interest on the Securities when due,
whether at maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company
under the Indenture and the Securities and (b) the full and
punctual performance within applicable grace periods of all
other obligations of the Company under the Indenture and the
Securities (all the foregoing being hereinafter collectively
called the "Obligations").
The Subsidiary Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from the Subsidiary
Guarantor and that the Subsidiary Guarantor will remain bound
under this Supplemental Indenture notwithstanding any extension
or renewal of any Obligation.
The Subsidiary Guarantor waives presentation to,
demand of, payment from and protest to the Company of any of the
Obligations and also waives notice of protest for nonpayment.
The Subsidiary Guarantor waives notice of any default under the
Securities or the Obligations. The obligations of the
Subsidiary Guarantor hereunder shall not be affected by (a) the
failure of any Holder or the Trustee to assert any claim or
demand or to enforce any right or remedy against the Company or
any other Person under the Indenture, this Supplemental
Indenture, the Securities or any other agreement or otherwise;
(b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or
provisions of the Indenture, this Supplemental Indenture, the
Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Obligations
or any of them; (e) the failure of any Holder or the Trustee to
exercise any right or remedy against any other guarantor of the
Obligations; or (f) except as set forth in Section 7 of this
Supplemental Indenture, any change in the ownership of the
Subsidiary Guarantor.
The Subsidiary Guarantor further agrees that its
guaranty herein constitutes a guarantee of payment, performance
and compliance when due (and not a guarantee of collection) and
waives any right to require that any resort be had by any Holder
or the Trustee to any security held for payment of the
Obligations.
Except as expressly set forth in Section 8.01(b) of
the Indenture and Sections 3 and 7 of this Supplemental
Indenture, the obligations of the Subsidiary Guarantor hereunder
shall not be subject to any reduction, limitation, impairment or
termination for any reason, including any claim of waiver,
2
release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the
obligations of the Subsidiary Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of
any Holder or the Trustee to assert any claim or demand or to
enforce any remedy under the Indenture, this Supplemental
Indenture, the Securities or any other agreement, by any waiver
or modification of any thereof, by any default, failure or
delay, wilful or otherwise, in the performance of the
Obligations, or by any other act or thing or omission or delay
to do any other act or thing which may or might in any manner or
to any extent vary the risk of the Subsidiary Guarantor or would
otherwise operate as a discharge of the Subsidiary Guarantor as
a matter of law or equity.
The Subsidiary Guarantor further agrees that its
guaranty herein shall continue to be effective or be reinstated,
as the case may be, if at any time payment, or any part thereof,
of principal of or interest on any Obligation is rescinded or
must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation
of any other right which any Holder or the Trustee has at law or
in equity against the Subsidiary Guarantor by virtue hereof,
upon the failure of the Company to pay the principal of or
interest on any Obligation when and as the same shall become
due, whether at maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Obligation,
the Subsidiary Guarantor hereby promises to and shall, upon
receipt of written demand by the Trustee, forthwith pay, or
cause to be paid, in cash, to the Holders or the Trustee an
amount equal to the sum of (1) the unpaid amount of such
Obligations, (2) accrued and unpaid interest on such Obligations
(but only to the extent not prohibited by law) and (3) all other
monetary Obligations of the Company to the Holders and the
Trustee.
The Subsidiary Guarantor agrees that, as between it,
on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the Obligations guaranteed hereby may
be accelerated as provided in Article 6 of the Indenture for the
purposes of the Subsidiary Guarantor's guaranty herein,
notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations
3
guaranteed hereby, and (y) in the event of any declaration of
acceleration of such Obligations as provided in Article 6 of the
Indenture, such Obligations (whether or not due and payable)
shall forthwith become due and payable by the Subsidiary
Guarantor for the purposes of this Supplemental Indenture.
The Subsidiary Guarantor also agrees to pay any and
all costs and expenses (including reasonable attorneys' fees)
incurred by the Trustee or any Holder in enforcing any rights
under this Section 2.
SECTION 3. Limitation on Liability. Any term or
provision of this Supplemental Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Obligations
guaranteed hereunder by the Subsidiary Guarantor shall not
exceed the maximum amount that can be hereby guaranteed without
rendering this Supplemental Indenture, as it relates to the
Subsidiary Guarantor, voidable under applicable law relating to
fraudulent conveyance, fraudulent transfer or similar laws
affecting the rights of creditors generally.
SECTION 4. Successors and Assigns. This Supplemental
Indenture shall be binding upon the Subsidiary Guarantor and its
successors and assigns and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that
party in this Supplemental Indenture and in the Securities shall
automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this
Supplemental Indenture.
SECTION 5. No Waiver. Neither a failure nor a delay
on the part of either the Trustee or the Holders in exercising
any right, power or privilege under this Supplemental Indenture
shall operate as a waiver thereof, nor shall a single or partial
exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of
the Trustee and the Holders herein expressly specified are
cumulative and not exclusive of any other rights, remedies or
benefits which either may have under this Supplemental Indenture
at law, in equity, by statute or otherwise.
SECTION 6. Modification. No modification, amendment
or waiver of any provision of this Supplemental Indenture, nor
the consent to any departure by the Subsidiary Guarantor
therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Trustee, and then such waiver or
4
consent shall be effective only in the specific instance and for
the purpose for which given. No notice to or demand on the
Subsidiary Guarantor in any case shall entitle the Subsidiary
Guarantor to any other or further notice or demand in the same,
similar or other circumstances.
SECTION 7. Release. Upon the sale or other
disposition (including by way of consolidation or merger) of the
Subsidiary Guarantor or the sale or disposition of all or
substantially all the assets of the Subsidiary Guarantor (in
each case other than a sale or disposition to the Company or an
affiliate of the Company), the Subsidiary Guarantor shall be
deemed released from all obligations under this Supplemental
Indenture without any further action required on the part of the
Trustee or any Holder. At the request and expense of the
Company, the Trustee shall execute and deliver an appropriate
instrument evidencing such release.
Upon the merger or consolidation of the Subsidiary
Guarantor with or into, or the dissolution and liquidation of
the Subsidiary Guarantor into, a Subsidiary Guarantor or another
Person that Guarantees the Securities, the Subsidiary Guarantor
shall be released from all obligations under this Supplemental
Indenture without any further action required on the part of the
Trustee or any Holder. At the request and expense of the
Company, the Trustee shall execute and deliver an appropriate
instrument evidencing such release.
SECTION 8. Governing Law. This Supplemental
Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York but without giving
effect to applicable principles of conflicts of law to the
extent that the application of the laws of another jurisdiction
would be required thereby.
SECTION 9. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Subsidiary
Guarantor shall not have any liability for any obligations of
the Company under the Securities or the Indenture or of the
Subsidiary Guarantor under its guaranty, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting
a Security, each Holder shall waive and release all such
liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 10. Multiple Originals. The parties may sign
any number of copies of this Supplemental Indenture. Each signed
5
copy shall be an original, but all of them together represent
the same agreement. One signed copy is enough to prove this
Supplemental Indenture.
SECTION 11. Headings. The headings of the Sections
of this Supplemental Indenture have been inserted for
convenience of reference only, are not intended to be considered
a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 12. Contribution. The Subsidiary Guarantor
shall be entitled upon payment in full of all guaranteed
Obligations to a contribution from each other Subsidiary
Guarantor in an amount equal to such other Subsidiary
Guarantor's pro rata portion of such payment based on the
respective net assets of all the Subsidiary Guarantors at the
time of such payment determined in accordance with GAAP.
6
IN WITNESS WHEREOF, the parties have caused this
Supplemental Indenture to be duly executed as of the date first
written above.
[SUBSIDIARY GUARANTOR],
by
------------------------
Name:
Title:
LABORATORY CORPORATION OF
AMERICA HOLDINGS,
by
-----------------------
Name:
Title:
[OTHER SUBSIDIARY
GUARANTORS],
by
-----------------------
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION, Trustee
by
-----------------------
Name:
Title:
7
RULE 144A/REGULATION S APPENDIX
PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. Definitions.
1.1 Definitions.
For the purposes of this Appendix the following terms
shall have the meanings indicated below:
"Depository" means The Depository Trust Company, its
nominees and their respective successors.
"Exchange Securities" means the (1) 5 1/2% Senior Notes
due February 1, 2013 to be issued pursuant to the Indenture in
connection with the Registered Exchange Offer pursuant to the
Registration Rights Agreement or (2) Additional Securities, if
any, issued pursuant to a registration statement filed with the
SEC under the Securities Act.
"Initial Purchasers" means (1) with respect to the
Initial Securities issued on the Issue Date, Credit Suisse First
Boston LLC, Banc of America Securities LLC, UBS Warburg LLC,
Wachovia Securities, Inc., SunTrust Capital Markets, Inc. and
U.S. Bancorp Piper Jaffray Inc. and (2) with respect to each
issuance of Additional Securities, the Persons purchasing such
Additional Securities under the related Purchase Agreement.
"Initial Securities" means (1) $350,000,000 aggregate
principal amount of 5 1/2% Senior Notes due February 1, 2013 issued
on the Issue Date and (2) Additional Securities, if any, issued
in a transaction exempt from the registration requirements of
the Securities Act.
"Private Exchange" means the offer by the Company,
pursuant to the Registration Rights Agreement, to the Initial
Purchasers to issue and deliver to each Initial Purchaser, in
exchange for the Initial Securities held by the Initial
Purchaser as part of its initial distribution, a like aggregate
principal amount of Private Exchange Securities.
2
"Private Exchange Securities" means any 5 1/2% Senior
Notes due February 1, 2013 issued in connection with a Private
Exchange.
"Purchase Agreement" means (1) with respect to the
Initial Securities issued on the Issue Date, the Purchase
Agreement dated January 28, 2003, among the Company and the
Initial Purchasers, and (2) with respect to each issuance of
Additional Securities, the purchase agreement or underwriting
agreement among the Company and the Persons purchasing such
Additional Securities.
"QIB" means a "qualified institutional buyer" as
defined in Rule 144A.
"Registered Exchange Offer" means the offer by the
Company, pursuant to the Registration Rights Agreement, to
certain Holders of Initial Securities, to issue and deliver to
such Holders, in exchange for the Initial Securities, a like
aggregate principal amount of Exchange Securities registered
under the Securities Act.
"Registration Rights Agreement" means (1) with respect
to the Initial Securities issued on the Issue Date, the
Registration Rights Agreement dated January 28, 2003, among the
Company and the Initial Purchasers, and (2) with respect to each
issuance of Additional Securities issued in a transaction exempt
from the registration requirements of the Securities Act, the
registration rights agreement, if any, among the Company and the
Persons purchasing such Additional Securities under the related
Purchase Agreement.
"Securities Act" means the Securities Act of 1933.
"Securities Custodian" means the custodian with
respect to a Global Security (as appointed by the Depository),
or any successor Person thereto and shall initially be the
Trustee.
"Shelf Registration Statement" means a registration
statement filed by the Company with the SEC in connection with
the resale of Initial Securities or Private Exchange Securities
pursuant to the Registration Rights Agreement.
"Transfer Restricted Securities" means Securities that
bear or are required to bear the legend set forth in
Section 2.3(b) hereto.
3
1.2 Other Definitions
Term Defined in Section
------------------
"Agent Members"......................................... 2.1(b)
"Global Security"....................................... 2.1(a)
"Regulation S".......................................... 2.1(a)
"Restricted Global Security"............................ 2.1(a)
"Rule 144A"............................................. 2.1(a)
2. The Securities.
2.1 (a) Form and Dating. Initial Securities offered
and sold to a QIB in reliance on Rule 144A under the Securities
Act ("Rule 144A") or in reliance on Regulation S under the
Securities Act ("Regulation S"), in each case as provided in the
Purchase Agreement, and Private Exchange Securities, as provided
in the Registration Rights Agreement, shall be issued initially
in the form of one or more permanent global Securities in
definitive, fully registered form without interest coupons with
the global securities legend and restricted securities legend
set forth in Exhibit 1 hereto (each, a "Restricted Global
Security"), which shall be deposited on behalf of the purchasers
of the Initial Securities represented thereby with the Trustee,
at its designated corporate trust office, as custodian for the
Depository (or with such other custodian as the Depository may
direct), and registered in the name of the Depository or a
nominee of the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Global Securities may from
time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depository or its nominee as
hereinafter provided. Exchange Securities shall be issued in
global form (with the global securities legend set forth in
Exhibit 1 hereto). Exchange Securities issued in global form
and Restricted Global Securities are sometimes referred to in
this Appendix as "Global Securities."
(b) Book-Entry Provisions. This Section 2.1(b) shall
apply only to a Global Security deposited with or on behalf of
the Depository.
The Company shall execute and the Trustee shall, in
accordance with this Section 2.1(b), authenticate and deliver
initially one or more Global Securities that (a) shall be
registered in the name of the Depository for such Global
Security or Global Securities or the nominee of such Depository
4
and (b) shall be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions or held by the
Trustee as custodian for the Depository.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect
to any Global Security held on their behalf by the Depository or
by the Trustee as the custodian of the Depository or under such
Global Security, and the Company, the Trustee and any agent of
the Company or the Trustee shall be entitled to treat the
Depository as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices of such Depository
governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
(c) Certificated Securities. Except as provided in
this Section 2.1 or Section 2.3 or 2.4, owners of beneficial
interests in Restricted Global Securities shall not be entitled
to receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate
and deliver: (1) on the Issue Date, an aggregate principal
amount of $350,000,000 5 1/2% Senior Notes due February 1, 2013,
(2) any Additional Securities for an original issue in an
aggregate principal amount specified in the written order of the
Company pursuant to Section 2.02 of the Indenture and
(3) Exchange Securities or Private Exchange Securities for issue
only in a Registered Exchange Offer or a Private Exchange,
respectively, pursuant to a Registration Rights Agreement, for a
like principal amount of Initial Securities, in each case upon a
written order of the Company signed by two Officers or by an
Officer and either an Assistant Treasurer or an Assistant
Secretary of the Company. Such order shall specify the amount
of the Securities to be authenticated and the date on which the
original issue of Securities is to be authenticated.
2.3 Transfer and Exchange.
(a) Transfer and Exchange of Global Securities.
(1) The transfer and exchange of Global Securities
or beneficial interests therein shall be effected through
the Depository, in accordance with this Indenture
5
(including applicable restrictions on transfer set forth
herein, if any) and the procedures of the Depository
therefor. A transferor of a beneficial interest in a
Global Security shall deliver to the Registrar a written
order given in accordance with the Depositary's procedures
containing information regarding the participant account of
the Depositary to be credited with a beneficial interest in
the Global Security. The Registrar shall, in accordance
with such instructions instruct the Depositary to credit to
the account of the Person specified in such instructions a
beneficial interest in the Global Security and to debit the
account of the Person making the transfer the beneficial
interest in the Global Security being transferred.
(2) Notwithstanding any other provisions of this
Appendix (other than the provisions set forth in
Section 2.4), a Global Security may not be transferred as a
whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(3) In the event that a Restricted Global Security
is exchanged for Securities in certificated registered form
pursuant to Section 2.4 of this Appendix, prior to the
consummation of a Registered Exchange Offer or the
effectiveness of a Shelf Registration Statement with
respect to such Securities, such Securities may be
exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this
Section 2.3 (including the certification requirements set
forth on the Assignment Form attached to the Initial
Securities and Private Exchange Securities intended to
ensure that such transfers comply with Rule 144A or
Regulation S, as the case may be) and such other procedures
as may from time to time be adopted by the Company.
(b) Legend.
(1) Except as permitted by the following para-
graphs (2), (3) and (4), each Security certificate
evidencing the Restricted Global Securities (and all
Securities issued in exchange therefor or in substitution
thereof) shall bear a legend in substantially the following
form:
6
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS
SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS
HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF
THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY
OR ITS AFFILIATES, (II) IN THE UNITED STATES TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (IV) PURSUANT TO EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
(2) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted
Security represented by a Restricted Global Security)
pursuant to Rule 144 under the Securities Act, the
Registrar shall permit the transferee thereof to exchange
such Transfer Restricted Security for a certificated
Security that does not bear the legend set forth above and
rescind any restriction on the transfer of such Transfer
Restricted Security, if the transferor thereof certifies in
writing to the Registrar that such sale or transfer was
made in reliance on Rule 144 (such certification to be in
the form set forth on the reverse of the Security).
(3) After a transfer of any Initial Securities or
Private Exchange Securities pursuant to and during the
period of the effectiveness of a Shelf Registration
Statement with respect to such Initial Securities or
Private Exchange Securities, as the case may be, all
requirements pertaining to legends on such Initial Security
7
or such Private Exchange Security will cease to apply, the
requirements requiring any such Initial Security or such
Private Exchange Security issued to certain Holders be
issued in global form will cease to apply, and a
certificated Initial Security or Private Exchange Security
or an Initial Security or Private Exchange Security in
global form, in each case without restrictive transfer
legends, will be available to the transferee of the Holder
of such Initial Securities or Private Exchange Securities
upon exchange of such transferring Holder's certificated
Initial Security or Private Exchange Security or directions
to transfer such Holder's interest in the Global Security,
as applicable.
(4) Upon the consummation of a Registered Exchange
Offer with respect to the Initial Securities, all
requirements pertaining to such Initial Securities that
Initial Securities issued to certain Holders be issued in
global form will still apply with respect to Holders of
such Initial Securities that do not exchange their Initial
Securities, and Exchange Securities in global form will be
available to Holders that exchange such Initial Securities
in such Registered Exchange Offer.
(5) Upon the consummation of a Private Exchange with
respect to the Initial Securities, all requirements
pertaining to such Initial Securities that Initial
Securities issued to certain Holders be issued in global
form will still apply with respect to Holders of such
Initial Securities that do not exchange their Initial
Securities, and Private Exchange Securities in global form
with the global securities legend and the Restricted
Securities Legend set forth in Exhibit 1 hereto will be
available to Holders that exchange such Initial Securities
in such Private Exchange.
(c) Cancelation or Adjustment of Global Security. At
such time as all beneficial interests in a Global Security have
either been exchanged for certificated Securities, redeemed,
purchased or canceled, such Global Security shall be returned to
the Depository for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Security is exchanged for
certificated Securities, redeemed, purchased or canceled, the
principal amount of Securities represented by such Global
Security shall be reduced and an adjustment shall be made on the
books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global
8
Security, by the Trustee or the Securities Custodian, to reflect
such reduction.
(d) Obligations with Respect to Transfers and
Exchanges of Securities.
(1) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate certificated Securities and Global Securities
at the Registrar's or co-registrar's request.
(2) No service charge shall be made for any
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer
tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes,
assessments or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.06 and 8.05 of
the Indenture).
(3) The Registrar or co-registrar shall not be
required to register the transfer of or exchange of any
Security for a period beginning 15 Business Days before the
mailing of a notice of an offer to repurchase or redeem
Securities or 15 Business Days before an interest payment
date.
(4) Prior to the due presentation for registration
of transfer of any Security, the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar may deem
and treat the Person in whose name a Security is registered
as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such
Security and for all other purposes whatsoever, whether or
not such Security is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(5) All Securities issued upon any transfer or
exchange pursuant to the terms of this Indenture shall
evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
(e) No Obligation of the Trustee. The Trustee shall
have no responsibility or obligation to any beneficial owner of
a Global Security, a member of, or a participant in the
Depository or other Person with respect to the accuracy of the
9
records of the Depository or its nominee or of any participant
or member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the
Depository) of any notice (including any notice of redemption)
or the payment of any amount, under or with respect to such
Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the
Securities shall be given or made only to or upon the order of
the registered Holders (which shall be the Depository or its
nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only
through the Depository subject to the applicable rules and pro-
cedures of the Depository. The Trustee may rely and shall be
fully protected in relying upon information furnished by the
Depository with respect to its members, participants and any
beneficial owners.
2.4 Certificated Securities.
(a) A Global Security deposited with the Depository
or with the Trustee as custodian for the Depository pursuant to
Section 2.1 shall be transferred to the beneficial owners
thereof in the form of certificated Securities in an aggregate
principal amount equal to the principal amount of such Global
Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 and (i) the Depository
notifies the Company that it is unwilling or unable to continue
as Depository for such Global Security or if at any time such
Depository ceases to be a "clearing agency" registered under the
Exchange Act and a successor depositary is not appointed by the
Company within 90 days of such notice, or (ii) an Event of
Default has occurred and is continuing or (iii) the Company, in
its sole discretion, notifies the Trustee in writing that it
elects to cause the issuance of certificated Securities under
this Indenture.
(b) Any Global Security that is transferable to the
beneficial owners thereof pursuant to this Section shall be
surrendered by the Depository to the Trustee located at its
designated corporate trust office in the Borough of Manhattan,
The City of New York, to be so transferred, in whole or from
time to time in part, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of
such Global Security, an equal aggregate principal amount of
certificated Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this
Section shall be executed, authenticated and delivered only in
10
denominations of $1,000 principal amount and any integral
multiple thereof and registered in such names as the Depository
shall direct. Any certificated Security delivered in exchange
for an interest in the Restricted Global Security shall, except
as otherwise provided by Section 2.3(b), bear the restricted
securities legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security shall be entitled to
grant proxies and otherwise authorize any Person, including
Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
(d) In the event of the occurrence of either of the
events specified in Section 2.4(a), the Company shall promptly
make available to the Trustee a reasonable supply of
certificated Securities in definitive, fully registered form
without interest coupons.
EXHIBIT 1
TO
RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC)
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS SECURITY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED OF IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF
THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY OR ITS
AFFILIATES, (II) IN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
12
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT
OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
CUSIP No. 50540R AE 2
ISIN No. US50540RAE27
No. R-______________ $ ________________
5 1/2% Senior Note due February 1, 2013
Laboratory Corporation of America Holdings, a Delaware
corporation, promises to pay to CEDE & CO., or registered
assigns, the principal sum of [ ] Dollars on February 1,
2013.
Interest Payment Dates: February 1 and August 1,
commencing [ ].
Record Dates: January 15 and July 15.
Additional provisions of this Security are set forth
on the other side of this Security.
Dated:
LABORATORY CORPORATION OF AMERICA
HOLDINGS
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
14
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Wachovia Bank, National Association
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:
--------------------------------
Authorized Signatory
15
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
5 1/2% Senior Note due February 1, 2013
1. Interest
Laboratory Corporation of America Holdings, a Delaware
corporation (such corporation, and its successors and assigns
under the Indenture hereinafter referred to, being herein called
the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above; provided,
however, that if a Registration Default (as defined in the
Registration Rights Agreement) occurs, additional interest will
accrue on this Security at a rate of 0.50% per annum (increasing
by an additional 0.50% per annum after each consecutive 90-day
period that occurs after the date on which such Registration
Default occurs up to a maximum additional interest rate of
2.00%) from and including the date on which any such
Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. The Company
will pay interest semiannually on February 1 and August 1 of
each year, commencing August 1, 2003. Interest on the
Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from
January 31, 2003. Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Company will pay
interest on overdue principal at the rate borne by the
Securities plus 1% per annum, and it will pay interest on
overdue installments of interest at the same rate to the extent
lawful.
2. Method of Payment
The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered
holders of Securities at the close of business on the January 15
or July 15 next preceding the interest payment date even if
Securities are canceled after the record date and on or before
the interest payment date. Holders must surrender Securities to
a Paying Agent to collect principal payments. The Company will
pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium
and interest) will be made by wire transfer of immediately
available funds to the accounts specified by The Depository
16
Trust Company. The Company will make all payments in respect of
a certificated Security (including principal, premium and
interest) by mailing a check to the registered address of each
Holder thereof; provided, however, that payments on a
certificated Security will be made by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United
States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately pre-
ceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, Wachovia Bank, National Association,
a national banking association (the "Trustee"), will act as
Paying Agent and Registrar. The Company may appoint and change
any Paying Agent, Registrar or co-registrar without notice. The
Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture
dated as of January 31, 2003 ("Indenture"), between the Company
and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C.
'' 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders
are referred to the Indenture and the Act for a statement of
those terms.
The Securities are general unsecured obligations of
the Company. The Company shall be entitled to issue Additional
Securities pursuant to Section 2.13 of the Indenture. The
Initial Securities issued on the Issue Date, any Additional
Securities and all Exchange Securities or Private Exchange
Securities issued in exchange therefor will be treated as a
single class for all purposes under the Indenture. The
Indenture contains covenants that limit the ability of the
Company and its Restricted Subsidiaries to create liens on
assets and engage in Sale and Leaseback Transactions. The
Indenture also contains a covenant that limits the ability of
the Company's Subsidiaries from incurring indebtedness or
17
issuing preferred stock. These covenants are subject to
important exceptions and qualifications.
5. Optional Redemption
The Securities are subject to redemption, in whole or
in part, at the option of the Company, at any time at a
redemption price equal to the greater of (1) 100% of the
principal amount of the Securities being redeemed plus accrued
and unpaid interest to the redemption date or (2) the Make-Whole
Amount for the Securities being redeemed.
"Make Whole Amount" means the sum, as determined by a
Quotation Agent, of the present values of the principal amount
of the Securities to be redeemed, together with scheduled
payments of interest (exclusive of interest to the redemption
date) from the redemption date to the maturity date of the
Securities being redeemed, in each case discounted to the
redemption date on a semi-annual basis, assuming a 360-day year
consisting of twelve 30-day months, at the Adjusted Treasury
Rate, plus accrued and unpaid interest on the principal amount
of the Securities being redeemed to the redemption date.
"Adjusted Treasury Rate" means, with respect to any
redemption date, (i) the yield, under the heading which
represents the average for the immediately preceding week,
appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is
published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue (if no
maturity is within three months before or after the remaining
term of the Securities of the series being redeemed, yields for
the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Adjusted
Treasury Rate shall be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month)
or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does
not contain such yields, the rate per year equal to the semi-
annual equivalent yield to maturity of the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such redemption date, in
each case calculated on the third Business Day preceding the
redemption date, plus 0.25%.
18
"Comparable Treasury Issue" means the United States
Treasury security selected by the Quotation Agent as having a
maturity comparable to the remaining term from the redemption
date to the maturity date of the Securities being redeemed that
would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the
remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any
redemption date, if clause (ii) of the Adjusted Treasury Rate is
applicable, the average of three, or such lesser number as is
obtained by the Trustee, Reference Treasury Dealer Quotations
for such redemption date.
"Quotation Agent" means the Reference Treasury Dealer
selected by the Company.
"Reference Treasury Dealer" means Credit Suisse First
Boston Corporation and its successors and assigns, and two other
nationally recognized investment banking firms selected by the
Company that are primary U.S. Government securities dealers.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any redemption
date, the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue, expressed in
each case as a percentage of its principal amount, quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00
p.m., New York City time, on the third Business Day preceding
such redemption date.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered address.
Securities in denominations larger than $1,000 principal amount
may be redeemed in part but only in whole multiples of $1,000.
If money sufficient to pay the redemption price of and accrued
interest on all Securities (or portions thereof) to be redeemed
on the redemption date is deposited with the Paying Agent on or
before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on
such Securities (or such portions thereof) called for
redemption.
19
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons
in denominations of $1,000 principal amount and whole multiples
of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements
or transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for
redemption (except, in the case of a Security to be redeemed in
part, the portion of the Security not to be redeemed) or any
Securities for a period of 15 days before a selection of
Securities to be redeemed or 15 days before an interest payment
date.
8. Persons Deemed Owners
The registered Holder of this Security may be treated
as the owner of it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent
shall pay the money back to the Company at its request unless an
abandoned property law designates another Person. After any
such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
10. Discharge and Defeasance
Subject to certain conditions, the Company at any time
shall be entitled to terminate some or all of its obligations
under the Securities and the Indenture if the Company deposits
with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
11. Amendment, Waiver
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture and the Securities may be amended
with the written consent of the Holders of at least a majority
in principal amount outstanding of the Securities and (ii) any
default or noncompliance with any provision may be waived with
the written consent of the Holders of a majority in principal
20
amount outstanding of the Securities. Subject to certain
exceptions set forth in the Indenture, without the consent of
any Securityholder, the Company and the Trustee shall be
entitled to amend the Indenture or the Securities to cure any
ambiguity, omission, defect or inconsistency, or to comply with
Article 5 of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated
Securities, or to add guarantees with respect to the Securities
or to secure the Securities, or to add additional covenants or
surrender rights and powers conferred on the Company or to
comply with any request of the SEC in connection with qualifying
the Indenture under the Act or to make any change that does not
adversely affect the rights of any Securityholder.
12. Defaults and Remedies
Under the Indenture, Events of Default include
(i) default for 30 days in payment of interest on the
Securities; (ii) default in payment of principal on the
Securities, upon redemption pursuant to paragraph 5 of the
Securities, upon acceleration or otherwise; (iii) failure by the
Company to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of
time; (iv) certain accelerations of other Indebtedness of the
Company if the amount accelerated (or so unpaid) exceeds
$50.0 million; (v) failure by the Company or any Subsidiary to
pay at maturity at least $50.0 million of other Indebtedness;
and (vi) certain events of bankruptcy or insolvency with respect
to the Company and its Subsidiaries.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may
refuse to enforce the Indenture or the Securities unless it
receives indemnity or security satisfactory to it. Subject to
certain limitations, Holders of a majority in principal amount
of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders
notice of any continuing Default (except a Default in payment of
principal or interest) if it determines that withholding notice
is in the interest of the Holders.
13. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act,
the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the
21
Company or its Affiliates and may otherwise deal with the
Company or its Affiliates with the same rights it would have if
it were not Trustee.
14. No Recourse Against Others
A director, officer, employee or stockholder, as such,
of the Company or the Trustee shall not have any liability for
any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. By accepting a Security,
each Securityholder waives and releases all such liability. The
waiver and release are part of the consideration for the issue
of the Securities.
15. Authentication
This Security shall not be valid until an authorized
signatory of the Trustee (or an Authenticating Agent) manually
signs the certificate of authentication on the other side of
this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in
common), TEN ENT (=tenants by the entireties), JT TEN (=joint
tenants with rights of survivorship and not as tenants in
common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to
Minors Act).
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Securities
and has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either
as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other
identification numbers placed thereon.
18. Holders' Compliance with Registration Rights Agreement
Each Holder of a Security, by acceptance hereof,
acknowledges and agrees to the provisions of the Registration
22
Rights Agreement, including the obligations of the Holders with
respect to a registration and the indemnification of the Company
to the extent provided therein.
19. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Securityholder upon
written request and without charge to the Security holder a copy
of the Indenture which has in it the text of this Security in
larger type. Requests may be made to:
Laboratory Corporation of America Holdings
358 South Main Street
Burlington, NC 27215
Attention: Chief Legal Officer
23
_________________________________________________________
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Company. The agent
may substitute another to act for him.
___________________________________________________________
Date: ________________ Your Signature: ____________________
___________________________________________________________
Sign exactly as your name appears on the other side of this
Security.
In connection with any transfer of any of the Securities
evidenced by this certificate occurring prior to the expiration
of the period referred to in Rule 144(k) under the
Securities Act of 1933 after the later of the date of original
issuance of such Securities and the last date, if any, on which
such Securities were owned by the Company or any Affiliate of
the Company, the undersigned confirms that such Securities are
being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement
under the Securities Act of 1933; or
(3) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A
under the Securities Act of 1933) that purchases
24
for its own account or for the account of a
qualified institutional buyer to whom notice is
given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to
and in compliance with Rule 144A under the
Securities Act of 1933; or
(4) [ ] outside the United States in an offshore
transaction within the meaning of Regulation S
under the Securities Act in compliance with
Rule 904 under the Securities Act of 1933; or
(5) [ ] pursuant to the exemption from registration
provided by Rule 144 under the Securities Act of
1933.
Unless one of the boxes is checked, the Trustee will refuse
to register any of the Securities evidenced by this
certificate in the name of any person other than the
registered holder thereof; provided, however, that if box
(4) or (5) is checked, the Trustee shall be entitled to
require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other
information as the Company has reasonably requested to
confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933,
such as the exemption provided by Rule 144 under such Act.
________________________
Signature
Signature Guarantee:
______________________________________________________
Signature must be guaranteed Signature
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the
25
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
___________________________________________________________
26
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED
----------------------------------------------------
The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with
respect to which it exercises sole investment discretion and
that it and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act
of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by
Rule 144A.
Dated: ___________________ ____________________________________
NOTICE: To be executed by
an executive officer
27
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global
Security have been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal amount of this Global authorized officer
amount of this of this Global Security following of Trustee or
Global Security Security such decrease or Securities
Increase Custodian
EXHIBIT A
FORM OF FACE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY*/**
CUSIP No. 50540R AD 4
ISIN No. US50540RAD44
No. ___________________ $ ________________
5 1/2% Senior Note due February 1, 2013
Laboratory Corporation of America Holdings, a Delaware
corporation, promises to pay to CEDE & CO., or registered
assigns, the principal sum of [ ] Dollars on February
1, 2013.
Interest Payment Dates: February 1 and August 1,
commencing [ ].
Record Dates: January 15 and July 15.
Additional provisions of this Security are set forth
on the other side of this Security.
Dated:
LABORATORY CORPORATION OF AMERICA
HOLDINGS
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
________________________________
* [If the Security is to be issued in global form add the Global Securities
Legend from Exhibit 1 to Appendix A and the attachment from such Exhibit 1
captioned "[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL SECURITY".]
** [If the Security is a Private Exchange Security issued in a Private
Exchange to an Initial Purchaser holding an unsold portion of its initial
allotment, add the Restricted Securities Legend from Exhibit 1 to Appendix A
and replace the Assignment Form included in this Exhibit A with the
Assignment Form included in such Exhibit 1.]
2
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Wachovia Bank, National Association
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By: ____________________________
Authorized Signatory
3
[FORM OF REVERSE SIDE OF EXCHANGE OR PRIVATE EXCHANGE SECURITY]
5 1/2% Senior Note due February 1, 2013
1. Interest
Laboratory Corporation of America Holdings, a Delaware
corporation (such corporation, and its successors and assigns
under the Indenture hereinafter referred to, being herein called
the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above; [provided,
however, that if a Registration Default (as defined in the
Registration Rights Agreement) occurs, additional interest will
accrue on this Security at a rate of 0.50% per annum (increasing
by an additional 0.50% per annum after each consecutive 90-day
period that occurs after the date on which such Registration
Default occurs up to a maximum additional interest rate of
2.00%) from and including the date on which any such
Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured.](1) The Company
will pay interest semiannually on February 1 and August 1 of
each year, commencing August 1, 2003. Interest on the
Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from
January 31, 2003. Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Company will pay
interest on overdue principal at the rate borne by the
Securities plus 1% per annum, and it will pay interest on
overdue installments of interest at the same rate to the extent
lawful.
2. Method of Payment
The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered
holders of Securities at the close of business on the January 15
or July 15 next preceding the interest payment date even if
Securities are canceled after the record date and on or before
the interest payment date. Holders must surrender Securities to
a Paying Agent to collect principal payments. The Company will
pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and
_______________________
(1) Insert if at the date of issuance of the Exchange Security or Private
Exchange Security, as the case may be, any Registration Default has occurred
with respect to the related Initial Securities during the interest period in
which such date of issuance occurs.
4
private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium
and interest) will be made by wire transfer of immediately
available funds to the accounts specified by The Depository
Trust Company. The Company will make all payments in respect of
a certificated Security (including principal, premium and
interest) by mailing a check to the registered address of each
Holder thereof; provided, however, that payments on a
certificated Security will be made by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United
States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately pre-
ceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, Wachovia Bank, National Association,
a national banking association (the "Trustee"), will act as
Paying Agent and Registrar. The Company may appoint and change
any Paying Agent, Registrar or co-registrar without notice. The
Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture
dated as of January 31, 2003 ("Indenture"), between the Company
and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C.
'' 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders
are referred to the Indenture and the Act for a statement of
those terms.
The Securities are general unsecured obligations of
the Company. The Company shall be entitled to issue Additional
Securities pursuant to Section 2.13 of the Indenture. The
Initial Securities issued on the Issue Date, any Additional
Securities and all Exchange Securities or Private Exchange
Securities issued in exchange therefor will be treated as a
single class for all purposes under the Indenture. The
Indenture contains covenants that limit the ability of the
Company and its Restricted Subsidiaries to create liens on
assets and engage in Sale and Leaseback Transactions. The
5
Indenture also contains a covenant that limits the ability of
the Company's Subsidiaries from incurring indebtedness or
issuing preferred stock. These covenants are subject to
important exceptions and qualifications.
5. Optional Redemption
The Securities are subject to redemption, in whole or
in part, at the option of the Company, at any time at a
redemption price equal to the greater of (1) 100% of the
principal amount of the Securities being redeemed plus accrued
and unpaid interest to the redemption date or (2) the Make-Whole
Amount for the Securities being redeemed.
"Make Whole Amount" means the sum, as determined by a
Quotation Agent, of the present values of the principal amount
of the Securities to be redeemed, together with scheduled
payments of interest (exclusive of interest to the redemption
date) from the redemption date to the maturity date of the
Securities being redeemed, in each case discounted to the
redemption date on a semi-annual basis, assuming a 360-day year
consisting of twelve 30-day months, at the Adjusted Treasury
Rate, plus accrued and unpaid interest on the principal amount
of the Securities being redeemed to the redemption date.
"Adjusted Treasury Rate" means, with respect to any
redemption date, (i) the yield, under the heading which
represents the average for the immediately preceding week,
appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is
published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue (if no
maturity is within three months before or after the remaining
term of the Securities of the series being redeemed, yields for
the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Adjusted
Treasury Rate shall be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month)
or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does
not contain such yields, the rate per year equal to the semi-
annual equivalent yield to maturity of the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such redemption date, in
6
each case calculated on the third Business Day preceding the
redemption date, plus 0.25%.
"Comparable Treasury Issue" means the United States
Treasury security selected by the Quotation Agent as having a
maturity comparable to the remaining term from the redemption
date to the maturity date of the Securities being redeemed that
would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the
remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any
redemption date, if clause (ii) of the Adjusted Treasury Rate is
applicable, the average of three, or such lesser number as is
obtained by the Trustee, Reference Treasury Dealer Quotations
for such redemption date.
"Quotation Agent" means the Reference Treasury Dealer
selected by the Company.
"Reference Treasury Dealer" means Credit Suisse First
Boston Corporation and its successors and assigns, and two other
nationally recognized investment banking firms selected by the
Company that are primary U.S. Government securities dealers.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any redemption
date, the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue, expressed in
each case as a percentage of its principal amount, quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00
p.m., New York City time, on the third Business Day preceding
such redemption date.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered address.
Securities in denominations larger than $1,000 principal amount
may be redeemed in part but only in whole multiples of $1,000.
If money sufficient to pay the redemption price of and accrued
interest on all Securities (or portions thereof) to be redeemed
on the redemption date is deposited with the Paying Agent on or
before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on
7
such Securities (or such portions thereof) called for
redemption.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons
in denominations of $1,000 principal amount and whole multiples
of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements
or transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for
redemption (except, in the case of a Security to be redeemed in
part, the portion of the Security not to be redeemed) or any
Securities for a period of 15 days before a selection of
Securities to be redeemed or 15 days before an interest payment
date.
8. Persons Deemed Owners
The registered Holder of this Security may be treated
as the owner of it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent
shall pay the money back to the Company at its request unless an
abandoned property law designates another Person. After any
such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
10. Discharge and Defeasance
Subject to certain conditions, the Company at any time
shall be entitled to terminate some or all of its obligations
under the Securities and the Indenture if the Company deposits
with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
11. Amendment, Waiver
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture and the Securities may be amended
with the written consent of the Holders of at least a majority
in principal amount outstanding of the Securities and (ii) any
8
default or noncompliance with any provision may be waived with
the written consent of the Holders of a majority in principal
amount outstanding of the Securities. Subject to certain
exceptions set forth in the Indenture, without the consent of
any Securityholder, the Company and the Trustee shall be
entitled to amend the Indenture or the Securities to cure any
ambiguity, omission, defect or inconsistency, or to comply with
Article 5 of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated
Securities, or to add guarantees with respect to the Securities
or to secure the Securities, or to add additional covenants or
surrender rights and powers conferred on the Company or to
comply with any request of the SEC in connection with qualifying
the Indenture under the Act or to make any change that does not
adversely affect the rights of any Securityholder.
12. Defaults and Remedies
Under the Indenture, Events of Default include
(i) default for 30 days in payment of interest on the
Securities; (ii) default in payment of principal on the
Securities, upon redemption pursuant to paragraph 5 of the
Securities, upon acceleration or otherwise; (iii) failure by the
Company to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of
time; (iv) certain accelerations of other Indebtedness of the
Company if the amount accelerated (or so unpaid) is at least
$50.0 million; (v) failure by the Company or any Subsidiary to
pay at maturity at least $50.0 million of other Indebtedness;
and (vi) certain events of bankruptcy or insolvency with respect
to the Company and its Subsidiaries.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may
refuse to enforce the Indenture or the Securities unless it
receives indemnity or security satisfactory to it. Subject to
certain limitations, Holders of a majority in principal amount
of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders
notice of any continuing Default (except a Default in payment of
principal or interest) if it determines that withholding notice
is in the interest of the Holders.
13. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act,
the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may
9
otherwise deal with and collect obligations owed to it by the
Company or its Affiliates and may otherwise deal with the
Company or its Affiliates with the same rights it would have if
it were not Trustee.
14. No Recourse Against Others
A director, officer, employee or stockholder, as such,
of the Company or the Trustee shall not have any liability for
any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. By accepting a Security,
each Securityholder waives and releases all such liability. The
waiver and release are part of the consideration for the issue
of the Securities.
15. Authentication
This Security shall not be valid until an authorized
signatory of the Trustee (or an Authenticating Agent) manually
signs the certificate of authentication on the other side of
this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in
common), TEN ENT (=tenants by the entireties), JT TEN (=joint
tenants with rights of survivorship and not as tenants in
common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to
Minors Act).
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Securities
and has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either
as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other
identification numbers placed thereon.
[18. Holders' Compliance with Registration Rights Agreement
Each Holder of a Security, by acceptance hereof,
acknowledges and agrees to the provisions of the Registration
10
Rights Agreement, including the obligations of the Holders with
respect to a registration and the indemnification of the Company
to the extent provided therein.] (2)
19. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Securityholder upon
written request and without charge to the Security holder a copy
of the Indenture which has in it the text of this Security in
larger type. Requests may be made to:
Laboratory Corporation of America Holdings
358 South Main Street
Burlington, NC 27215
Attention: Chief Legal Officer
_____________________
(2) Delete if this Security is not being issued in exchange for an Initial
Security.
11
__________________________________________________________
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Company. The agent
may substitute another to act for him.
___________________________________________________________
Date: ________________ Your Signature: ____________________
___________________________________________________________
Sign exactly as your name appears on the other side of this
Security.
12
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global
Security have been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal amount of this Global authorized officer
amount of this of this Global Security following of Trustee or
Global Security Security such decrease or Securities
Increase Custodian
EXHIBIT 10.1
EXECUTION COPY
$350,000,000
LABORATORY CORPORATION OF AMERICA HOLDINGS
5 1/2% Senior Notes due February 1, 2013
REGISTRATION RIGHTS AGREEMENT
-----------------------------
January 28, 2003
Credit Suisse First Boston LLC
Banc of America Securities LLC
UBS Warburg LLC
Wachovia Securities, Inc.
SunTrust Capital Markets, Inc.
U.S. Bancorp Piper Jaffray Inc.
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
Laboratory Corporation of America Holdings, a Delaware corporation (the
"Company"), proposes to issue and sell to Credit Suisse First Boston LLC and
Banc of America Securities LLC, UBS Warburg LLC, Wachovia Securities, Inc.,
SunTrust Capital Markets, Inc. and U.S. Bancorp Piper Jaffray Inc.
(collectively, the "Initial Purchasers"), upon the terms set forth in a
purchase agreement of even date herewith (the "Purchase Agreement"),
$350,000,000 aggregate principal amount of its 5 1/2% Senior Notes due
February 1, 2013 (the "Initial Securities"). The Initial Securities will be
issued pursuant to an Indenture, dated as of January 31, 2003 (the
"Indenture"), among the Company and Wachovia Bank, National Association, as
trustee (the "Trustee"). As an inducement to the Initial Purchasers to
enter into the Purchase Agreement, the Company agrees with the Initial
Purchasers, for the benefit of the Initial Purchasers and the holders of the
Securities (as defined below) (collectively the "Holders"), as follows:
1. Registered Exchange Offer. Unless not permitted by applicable law,
the Company shall prepare and, not later than 90 days (such 90th day being a
"Filing Deadline") after the date on which the Initial Purchasers purchase
the Initial Securities pursuant to the Purchase Agreement (the "Closing
Date"), file with the Securities and Exchange Commission (the "Commission") a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to a proposed offer (the "Registered Exchange
Offer") to the Holders of Transfer Restricted Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer, to issue and
deliver to such Holders, in exchange for the Initial Securities, a like
aggregate principal amount of debt securities of the Company issued under the
Indenture, identical in all material respects to the Initial Securities and
registered under the Securities Act (the "Exchange Securities"). The Company
shall use its reasonable best efforts to (i) cause such Exchange Offer
Registration Statement to become effective under the Securities Act within
180 days after the Closing Date (such 180th day being an "Effectiveness
Deadline") and (ii) keep the Exchange Offer Registration Statement
effective for not less than 30 days (or longer, if required by applicable
law) after the date notice of the Registered Exchange Offer is mailed to the
Holders (such period being called the "Exchange Offer Registration Period").
If the Company commences the Registered Exchange Offer, the Company (i)
will be entitled to consummate the Registered Exchange Offer 30 days after
such commencement (provided that the Company has accepted all the Initial
Securities theretofore validly tendered in accordance with the terms of the
Registered Exchange Offer) and (ii) will be required to consummate the
Registered Exchange Offer no later than 40 days after the date on which the
Exchange Offer Registration Statement is declared effective (such 40th day
being the "Consummation Deadline").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not
an affiliate of the Company within the meaning of the Securities Act,
acquires the Exchange Securities in the ordinary course of such Holder's
business and has no arrangements with any person to participate in the
distribution of the Exchange Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer)
to trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States.
The Company and the Initial Purchasers acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the
Securities Act, in the absence of an applicable exemption therefrom, (i) each
Holder that is a broker-dealer electing to exchange Initial Securities,
acquired for its own account as a result of market making activities or other
trading activities, for Exchange Securities (an "Exchanging Dealer"), is
required to deliver a prospectus containing the information set forth in (a)
Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section, and (c)
Annex C hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an
Initial Purchaser that elects to sell Securities (as defined below) acquired
in exchange for Initial Securities constituting any portion of an unsold
allotment, is required to deliver a prospectus containing the information
required by Items 507 or 508 of Regulation S-K under the Securities Act, as
applicable, in connection with such sale.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the prospectus
contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of
the Securities Act for such period of time as such persons must comply with
such requirements in order to resell the Exchange Securities; provided,
however, that (i) in the case where such prospectus and any amendment or
supplement thereto must be delivered by an Exchanging Dealer or an Initial
Purchaser, such period shall be the lesser of 180 days and the date on which
all Exchanging Dealers and the Initial Purchasers have sold all Exchange
Securities held by them (unless such period is extended pursuant to Section
3(j) below) and (ii) the Company shall make such prospectus and any amendment
or supplement thereto available to any broker-dealer for use in connection
with any resale of any Exchange Securities for a period of not less than 180
days after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver
to such Initial Purchaser upon the written request of such Initial Purchaser,
in exchange (the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and identical in all material respects to the
Initial Securities (the "Private Exchange Securities"). The Initial
Securities, the Exchange Securities and the Private Exchange Securities are
herein collectively called the "Securities".
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30
days (or longer, if required by applicable law) after the date notice
thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business day
on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and
not withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each
Holder of the Initial Securities, Exchange Securities or Private
Exchange Securities, as the case may be, equal in principal amount to
the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all
the Securities will vote and consent together on all matters as one class and
that none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has
been paid on the Initial Securities, from the date of original issue of the
Initial Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understanding with any person to participate in
the distribution of the Securities or the Exchange Securities within the
meaning of the Securities Act, (iii) such Holder is not an "affiliate," as
defined in Rule 405 of the Securities Act, of the Company or if it is an
affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable,
(iv) if such Holder is not a broker-dealer, that it is not engaged in, and
does not intend to engage in, the distribution of the Exchange Securities and
(v) if such Holder is a broker-dealer, that it will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities
and that it will be required to acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto complies
in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and
any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
If following the date hereof there has been announced a change in
Commission policy with respect to exchange offers that in the reasonable
opinion of counsel to the Company raises a substantial question as to whether
the Registered Exchange Offer is permitted by applicable federal law, the
Company will (unless advised in writing by outside counsel that seeking such
no-action letter has no reasonable probability of success) seek a no-action
letter or other favorable decision from the Commission allowing the Company
to consummate the Registered Exchange Offer. The Company will pursue the
issuance of such a decision to the Commission staff level. In connection
with the foregoing, the Company will take all such other actions as may be
reasonably requested by the Commission or otherwise reasonably required in
connection with the issuance of such decision, including without limitation
(i) participating in telephonic conferences with the Commission, (ii)
delivering 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 the Registered Exchange Offer should be permitted and (iii)
diligently pursuing a resolution (which need not be favorable) by the
Commission staff.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the
Company is not permitted to effect a Registered Exchange Offer, as
contemplated by Section 1 hereof, (ii) the Registered Exchange Offer is not
consummated by the 210th day after the Closing Date, (iii) any Initial
Purchaser so requests with respect to the Initial Securities (or the Private
Exchange Securities) not eligible to be exchanged for Exchange Securities in
the Registered Exchange Offer and held by it following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an Exchanging
Dealer) is not eligible to participate in the Registered Exchange Offer or,
in the case of any Holder (other than an Exchanging Dealer) that participates
in the Registered Exchange Offer, such Holder does not receive freely
tradeable Exchange Securities on the date of the exchange and any such Holder
so requests, the Company shall take the following actions (the date on which
any of the conditions described in the foregoing clauses (i) through (iv)
occur, including in the case of clauses (iii) or (iv) the receipt of the
required notice, being a "Trigger Date"):
(a) The Company shall promptly (but in no event more than 60
days after the Trigger Date (such 60th day being a "Filing Deadline"))
file with the Commission and thereafter use its reasonable best efforts
to cause to be declared effective no later than 180 days after the
Trigger Date (such 180th day being an "Effectiveness Deadline") a
registration statement (the "Shelf Registration Statement" and, together
with the Exchange Offer Registration Statement, a "Registration
Statement") on an appropriate form under the Securities Act relating to
the offer and sale of the Transfer Restricted Securities by the Holders
thereof from time to time in accordance with the methods of distribution
set forth in the Shelf Registration Statement and Rule 415 under the
Securities Act (hereinafter, the "Shelf Registration"); provided,
however, that no Holder (other than an Initial Purchaser) shall be
entitled to have the Securities held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing to be bound
by all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit
the prospectus included therein to be lawfully delivered by the Holders
of the relevant Securities, for a period of two years (or for such
longer period if extended pursuant to Section 3(j) below) from the date
of its effectiveness or such shorter period that will terminate when all
the Securities covered by the Shelf Registration Statement (i) have been
sold pursuant thereto or (ii) are no longer subject to limitations under
clauses (c), (e), (f) and (h) of Rule 144 under the Securities Act, or
any successor rule thereof (such period being called the "Shelf
Registration Period"). The Company shall be deemed not to have used its
reasonable best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any
action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that period, unless
the Company shall determine after consulting with outside counsel that
such action is required by applicable law or otherwise permitted
hereunder.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and
the related prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement or amendment or
the filing date of the supplement, (i) to comply in all material
respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) other than with respect
to information included therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Holder specifically for use therein (the "Holders' Information") not to
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser,
prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each supplement,
if any, to the prospectus included therein and, in the event that an
Initial Purchaser (with respect to any portion of an unsold allotment
from the original offering) is participating in the Registered Exchange
Offer or the Shelf Registration Statement, the Company shall use its
reasonable best efforts to reflect in each such document, when so filed
with the Commission, such comments as such Initial Purchaser reasonably
may propose; (ii) include the information set forth in Annex A hereto on
the cover, in Annex B hereto in the "Exchange Offer Procedures" section
and the "Purpose of the Exchange Offer" section and in Annex C hereto in
the "Plan of Distribution" section of the prospectus forming a part of
the Exchange Offer Registration Statement and include the information
set forth in Annex D hereto in the Letter of Transmittal delivered
pursuant to the Registered Exchange Offer; (iii) if requested by an
Initial Purchaser, include the information required by Items 507 or 508
of Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement;
(iv) include within the prospectus contained in the Exchange Offer
Registration Statement a section entitled "Plan of Distribution," which
shall contain a summary statement of the positions taken or policies
made by the staff of the Commission with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) of Exchange Securities received by such
broker-dealer in the Registered Exchange Offer (a "Participating Broker-
Dealer"), whether such positions or policies have been publicly
disseminated by the staff of the Commission or such positions or
policies, in the reasonable judgment of the Initial Purchasers based
upon advice of counsel (which may be in-house counsel), represent the
prevailing views of the staff of the Commission; and (v) in the case of
a Shelf Registration Statement, to the extent required by the applicable
Commission staff interpretations, include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration Statement
as selling securityholders.
(b) The Company shall give written notice to the Initial
Purchasers, the Holders of the Securities and any Participating Broker-
Dealer from whom the Company has received prior written notice that it
will be a Participating Broker-Dealer in the Registered Exchange Offer
(which notice pursuant to clauses (ii)-(v) hereof shall be accompanied
by an instruction to suspend the use of the prospectus until the
requisite changes have been made):
(i) when the Registration Statement or any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus
included therein;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires the Company
to make changes in the Registration Statement or the prospectus in
order that the Registration Statement or the prospectus do not
contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make
the statements therein (in the case of the prospectus, in light of
the circumstances under which they were made) not misleading,
provided, the Company will be under no obligation to give notice
to any person of the specific event that has occurred and shall
only be required to notify such person that the use of the
prospectus must be suspended.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge,
at least one copy of the Shelf Registration Statement and any post-
effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests, without
charge, at least one copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial statements
and schedules, and, if any Initial Purchaser or any such Holder
requests, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of the
Shelf Registration, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such
person may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other
persons required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement and any amendment
or supplement thereto as such persons may reasonably request. The
Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer and
such other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of
the Exchange Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Securities pursuant to
any Registration Statement the Company shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification
of the Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Holder of the Securities
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not
then so subject.(i) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may request a
reasonable period of time prior to sales of the Securities pursuant to
such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 3(b) above during the period for which the
Company is required to maintain an effective Registration Statement, the
Company shall promptly prepare and file a post-effective amendment to
the Registration Statement or a supplement to the related prospectus and
any other required document so that, as thereafter delivered to Holders
of the Securities or purchasers of Securities, the prospectus (other
than the Holders' Information) will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the
Company notifies the Initial Purchasers, the Holders of the Securities
and any known Participating Broker-Dealer in accordance with paragraphs
(ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made,
then the Initial Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus, and
the period of effectiveness of the Shelf Registration Statement provided
for in Section 2(b) above and the Exchange Offer Registration Statement
provided for in Section 1 above shall each be extended by the number of
days from and including the date of the giving of such notice to and
including the date when the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have received
such amended or supplemented prospectus pursuant to this Section 3(j);
provided, however, that such period of effectiveness, including any such
extension, shall terminate upon the occurrence of any event specified in
Section 2(b)(i) or Section 2(b)(ii). Notwithstanding the foregoing, the
Company shall not be required to file and distribute any such amendment,
supplement or other required document for a period not to exceed an
aggregate of 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
Company'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, in light of the circumstances in which they were
made, not misleading and (ii) the board of directors of the Company
determines in its good faith judgment that the disclosure of such event
at such time would have a material adverse effect on the business or
operations of the Company.
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the
Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Initial Securities, the Exchange Securities
or the Private Exchange Securities, as the case may be, in a form
eligible for deposit with The Depository Trust Company.
(l) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Registered Exchange Offer or the Shelf Registration and will make
generally available to its security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90
days, if such period is a fiscal year) beginning with the first month of
the Company's first fiscal quarter commencing after the effective date
of the Registration Statement, which statement shall cover such 12-month
period.
(m) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act of 1939, as amended, in a timely manner and
containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(n) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of the
Securities as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Company may
exclude from such registration the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time
after receiving such request.
(o) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take all such other action, if any, as any Holder of the Securities
shall reasonably request in order to facilitate the disposition of the
Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall (i)
make reasonably available for inspection by the Holders of the
Securities, any underwriter participating in any disposition pursuant to
the Shelf Registration Statement and any attorney, accountant or other
agent retained by the Holders of the Securities or any such underwriter
(collectively, the "Inspectors") all relevant financial and other
records, pertinent corporate documents and properties of the Company and
(ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the
Holders of the Securities or any such underwriter, attorney, accountant
or agent in connection with the Shelf Registration Statement, in each
case, as shall be reasonably necessary to enable such persons, to
conduct a reasonable investigation within the meaning of Section 11 of
the Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in
Section 4 hereof. Records which the Company reasonably determines, in
good faith, to be confidential and any records which they notify the
Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such records is necessary to avoid or
correct a material misstatement or omission in such Registration
Statement after a failure by the Company to make such disclosure for a
period of 5 business days after receiving written notice from any
Inspector of the need to make such disclosure, (ii) the release of such
records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (iii) the information in such records has been
made generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will
be required to agree that information obtained by it as a result of such
inspections shall be deemed confidential, shall be used solely in
connection with the transactions contemplated herein and shall not be
used by it as the basis for any market transactions in the securities of
the Company unless and until such is made generally available to the
public. Each selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to further agree that
it will, upon learning that disclosure of such records is sought in a
court of competent jurisdiction, give notice to the Company and allow
the Company at its expense to undertake appropriate action to prevent
disclosure of the records deemed confidential.
(q) In the case of any Shelf Registration, the Company, if
requested by Holders of a majority in aggregate principal amount of the
Securities covered thereby, shall cause (i) its counsel to deliver an
opinion and updates thereof relating to the Securities in customary form
addressed to such Holders and the managing underwriters, if any, thereof
and dated, in the case of the initial opinion, the effective date of
such Shelf Registration Statement, which opinions shall cover matters
customarily addressed in opinions requested by underwriters in
connection with underwritten offerings; (ii) its officers to execute and
deliver customary documents and certificates and updates thereof
reasonably requested by any underwriters of the applicable Securities
and (iii) its independent public accountants to provide to the selling
Holders of the applicable Securities and any underwriter therefor a
comfort letter in customary form and covering matters of the type
customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate documentation
as contemplated, and only if permitted, by Statement of Auditing
Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by
any Initial Purchaser or any known Participating Broker-Dealer, the
Company shall cause (i) its counsel to deliver to such Initial Purchaser
or such Participating Broker-Dealer signed opinions in the form set
forth in Sections 6(c) and 6(d) of the Purchase Agreement with such
changes as are customary in connection with the preparation of a
Registration Statement and (ii) its independent public accountants and
the independent public accountants with respect to any other entity for
which financial information is provided in the Registration Statement to
deliver to such Initial Purchaser or such Participating Broker-Dealer a
comfort letter, in customary form, meeting the requirements as to the
substance thereof as set forth in Section 6(a) and (g) of the Purchase
Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Company (or to such other Person as directed by the Company) in exchange
for the Exchange Securities or the Private Exchange Securities, as the
case may be, the Company shall mark, or caused to be marked, on the
Initial Securities so exchanged that such Initial Securities are being
canceled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall the Initial Securities
be marked as paid or otherwise satisfied.
(t) The Company will use its best efforts to (a) if the Initial
Securities have been rated prior to the initial sale of such Initial
Securities, confirm such ratings will apply to the Securities covered by
a Registration Statement, or (b) if the Initial Securities were not
previously rated, cause the Securities covered by a Registration
Statement to be rated with the appropriate rating agencies, if so
requested by Holders of a majority in aggregate principal amount of
Securities covered by such Registration Statement, or by the managing
underwriters, if any.
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "Rules") of
the National Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Securities or as an underwriter, a placement
or sales agent or a broker or dealer in respect thereof, or otherwise,
the Company will assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such Securities,
to exercise usual standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such Registration Statement
is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities, (ii) indemnifying any
such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 5 hereof and (iii)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the
Rules.
(v) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration of the Securities
covered by a Registration Statement contemplated hereby.
4. Registration Expenses.
(a) All expenses incident to the Company's performance of and
compliance with this Agreement will be borne by the Company, regardless
of whether a Registration Statement is ever filed or becomes effective,
including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities
and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company;
(v) all application and filing fees in connection with
listing the Exchange Securities on a national securities exchange
or automated quotation system pursuant to the requirements hereof;
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).
In connection with any Registration Statement required by this
Agreement, in no event shall the Company be responsible for any underwriting
discounts or commissions or brokerage fees or fees and disbursements of
counsel for any underwriter or commissions or brokerage fees incurred by the
selling Holders in connection with a Shelf Registration Statement. The
Company will 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.
The Holders participating in any underwritten offering shall be responsible
for any underwriting discounts and commissions and fees and disbursements of
counsel to the selling Holders to the extent not required to be paid by the
Company pursuant to this Agreement.
(b) In connection with any Registration Statement required by this
Agreement, the Company will reimburse the Initial Purchasers and the Holders
of Transfer Restricted Securities who are tendering Initial Securities in the
Registered Exchange Offer or selling or reselling Securities pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement
or the Shelf Registration Statement, as applicable, for the reasonable fees
and disbursements not to exceed $50,000 of not more than one counsel, who
shall be Cravath, Swaine & Moore unless another firm 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.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder of
the Securities, any Participating Broker-Dealer and each person, if any, who
controls such Holder or such Participating Broker-Dealer within the meaning
of the Securities Act or the Exchange Act (each Holder, any Participating
Broker-Dealer and such controlling persons are referred to collectively as
the "Indemnified Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including,
but not limited to, any losses, claims, damages, liabilities or actions
relating to purchases and sales of the Securities) to which each Indemnified
Party may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse, as incurred, the Indemnified Parties for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action
in respect thereof; provided, however, that (i) the Company shall not be
liable in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration in reliance upon and
in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or omission
or alleged untrue statement or omission made in any preliminary prospectus
relating to a Shelf Registration Statement, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Holder or
Participating Broker-Dealer from whom the person asserting any such losses,
claims, damages or liabilities purchased the Securities concerned, to the
extent that a prospectus relating to such Securities was required to be
delivered by such Holder or Participating Broker-Dealer under the Securities
Act in connection with such purchase and any such loss, claim, damage or
liability of such Holder or Participating Broker-Dealer results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the
final prospectus if the Company had previously furnished copies thereof to
such Holder or Participating Broker-Dealer; provided further, however, that
this indemnity agreement will be in addition to any liability which the
Company may otherwise have to such Indemnified Party. The Company shall also
indemnify underwriters, their officers and directors and each person who
controls such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such
Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in
respect thereof, to which the Company or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to
Shelf Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder
specifically for inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as incurred, the Company
for any legal or other expenses reasonably incurred by the Company or any
such controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may
otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party of the commencement thereof; but the
failure to notify the indemnifying party shall not relieve it from any
liability that it may have under subsection (a) or (b) above except to the
extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that
the failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and,
to the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party will not be
liable to such indemnified party under this Section 5 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred
by such indemnified party in connection with the defense thereof. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless
such settlement (i) includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of such
action, and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the 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
Company on the one hand or such Holder or such other indemnified party, as
the case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding any other provision of this Section 5(d),
the Holders of the Securities shall not be required to contribute any amount
in excess of the amount by which the net proceeds received by such Holders
from the sale of the Securities pursuant to a Registration Statement exceeds
the amount of damages which such Holders have 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. For purposes of this paragraph (d), each person, if any,
who controls such indemnified party within the meaning of the Securities Act
or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest (the "Additional Interest") with respect to
the Securities shall be assessed as follows if any of the following events
occur (each such event in clauses (i) through (iv) below being herein called
a "Registration Default"):
(i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing
Deadline;
(ii) any Registration Statement required by this Agreement is
not declared effective by the Commission on or prior to the applicable
Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been consummated on or
prior to the Consummation Deadline; or
(iv) any Registration Statement required by this Agreement has
been declared effective by the Commission but (A) such Registration
Statement thereafter ceases to be effective or (B) such Registration
Statement or the related prospectus ceases to be usable (except as
permitted in paragraph (b)) in connection with resales of Transfer
Restricted Securities during the periods specified herein because
either (1) any event occurs as a result of which the related prospectus
forming part of such Registration Statement would include 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, or (2) it
shall be necessary to amend such Registration Statement or supplement
the related prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever the
reason for any such event and whether it is voluntary or involuntary or is
beyond the control of the Company or pursuant to operation of law or as a
result of any action or inaction by the Commission .
Additional Interest shall accrue on the Securities over and above the
interest set forth in the title of the Securities from and including the date
on which any such Registration Default shall occur to but excluding the date
on which all such Registration Defaults have been cured, at a rate of 0.50%
per annum (the "Additional Interest Rate") for the first 90-day period
immediately following the occurrence of such Registration Default. The
Additional Interest Rate shall increase by an additional 0.50% per annum with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum Additional Interest Rate of 2.0% per annum.
(b) A Registration Default referred to in Section 6(a)(iv) hereof
shall be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company 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 Company that would need to be described in such Shelf
Registration Statement or the related prospectus and (ii) in the case of
clause (y), subject to Section 3(j), the Company is proceeding promptly and
in good faith to amend or supplement such Shelf Registration Statement and
related prospectus to describe such events; provided, however, that in any
case if such Registration Default occurs for a continuous period in excess of
45 days, Additional Interest shall be payable in accordance with the above
paragraph from the day such Registration Default occurs until such
Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 6(a)
will be payable in cash on the regular interest payment dates with respect to
the Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest Rate by the principal amount
of the Securities and further 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 the denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security until (i) the
date on which such Security has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registered Exchange Offer of an Initial Security for an Exchange Note, the
date on which such Exchange Note is sold to a purchaser who receives from
such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (iii) the
date on which such Security has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iv) the date on which such Security is distributed to the
public pursuant to Rule 144 under the Securities Act or is saleable pursuant
to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company shall use its best efforts to file
the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Securities, make publicly available other information so long as necessary to
permit sales of their securities pursuant to Rules 144 and 144A. The Company
covenants that it will take such further action as any Holder of Securities
may reasonably request, all to the extent required from time to time to
enable such Holder to sell Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144
and 144A (including the requirements of Rule 144A(d)(4)). The Company will
provide a copy of this Agreement to prospective purchasers of Initial
Securities identified to the Company by the Initial Purchasers upon request.
Upon the request of any Holder of Initial Securities, the Company shall
deliver to such Holder a written statement as to whether it has complied with
such requirements. Notwithstanding the foregoing, nothing in this Section 7
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities 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 administer the offering ("Managing
Underwriters") will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities to be included in
such offering, subject to the approval of the Company (which shall not be
unreasonably withheld); provided that at least 10% of the outstanding
Transfer Restricted Securities are included in such underwritten offering.
The Company shall not be obligated to arrange for more than two underwritten
offerings during the Shelf Registration Period. No person may participate in
any underwritten registration hereunder unless such person (i) agrees to sell
such person's Transfer Restricted Securities on the basis reasonably provided
in any underwriting arrangements approved by the persons entitled hereunder
to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Section 1
and 2 hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 1 and 2
hereof. The Company further agrees 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 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) 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 by the
Company and the written consent of the Holders of a majority in
principal amount of the Securities affected by such amendment,
modification, supplement, waiver or consents. Without the consent of
the Holder of each Security, however, no modification may change the
provisions relating to the payment of Additional Interest.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, first-
class mail, facsimile transmission, or air courier which guarantees
overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston LLC
One Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-4296
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
Fax No.: (212) 474-3700
Attention: Stephen L. Burns
(3) if to the Company, at its address as follows:
Laboratory Corporation of America Holdings
358 South Main Street
Burlington, NC 27215
Fax No.: (336) 436-4177
Attention: David P. King
with a copy to:
Hogan & Hartson L.L.P.
111 South Calvert Street
16th Floor
Baltimore, MD 21202
Fax No.: (410) 539-6981
Attention: Michael J. Silver
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if
sent by facsimile transmission; and on the day delivered, if sent by
overnight air courier guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(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 PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If 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) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed
to be affiliates solely by reason of their holdings of such Securities) shall
not be counted in determining whether such consent or approval was given by
the Holders of such required percentage.
(l) Submission to Jurisdiction; Waiver of Immunities. By the
execution and delivery of this Agreement, the Company submits to the
nonexclusive jurisdiction of any federal or state court in the State of New
York in any suit or proceeding arising out of or relating to this Agreement
that may be instituted in or brought under federal or state securities laws.
To the extent that the Company may acquire any immunity from jurisdiction of
any court or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, it hereby irrevocably
waives such immunity in respect of this Agreement, to the fullest extent
permitted by law.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the several Initial Purchasers and the Company in accordance
with its terms.
Very truly yours,
LABORATORY CORPORATION OF AMERICA HOLDINGS
By /s/ Bradford T. Smith
---------------------------------------
Name: Bradford T. Smith
Title: Executive Vice President and
Secretary
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
UBS WARBURG LLC
WACHOVIA SECURITIES, INC.
SUNTRUST CAPITAL MARKETS, INC.
U.S. BANCORP PIPER JAFFRAY INC.
By: Credit Suisse First Boston LLC
By /s/ Michael J. Wiggins
-----------------------------------
Name: Michael J. Wiggins
Title: Director
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a broker-
dealer in connection with resales of Exchange Securities received in exchange
for Initial Securities where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 180 days after the
Expiration Date (as defined herein), it will make this Prospectus available
to any broker-dealer for use in connection with any such resale. See "Plan
of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Initial Securities, where such Initial Securities were
acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Securities. See "Plan of
Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Initial Securities where such Initial Securities
were acquired as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 180 days after the
Expiration Date, it will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale.
In addition, until , 200 , all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus. (1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such
documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one
counsel for the Holders of the Securities) other than commissions or
concessions of any brokers or dealers and will indemnify the Holders of the
Securities (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.
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(1) In addition, the legend required by Item 502(e) of Regulation S-K
will appear on the inside front cover page of the Exchange Offer prospectus
below the Table of Contents.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
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Address:
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If the undersigned is not a broker-dealer, the undersigned represents that it
is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Initial Securities
that were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection
with any resale of such Exchange Securities; however, by so acknowledging and
by delivering a prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.