Exhibit 4.1
UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY 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.
THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS
SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
(X) PRIOR TO THE FIRST ANNIVERSARY OF THE ISSUANCE HEREOF (OR
ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS
AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN
(1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
(“RULE 144A”) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY),
(3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S
UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT, OR (5) 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. THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE
BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) A
NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR
AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH
(k)(2)(i) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES
ACT.
BENEFICIAL OWNERSHIP INTERESTS IN
THIS TEMPORARY REGULATION S GLOBAL NOTE WILL NOT BE EXCHANGEABLE
FOR INTERESTS IN THE RULE 144A GLOBAL NOTE OR THE PERMANENT
REGULATION S GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN INTEREST
IN THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND
CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE
“40-DAY DISTRIBUTED COMPLIANCE PERIOD” (WITHIN THE
MEANING OF RULE 903(b)(3) OF REGULATION S UNDER THE SECURITIES ACT)
AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO
THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY
NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A
TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES
ACT. DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL
OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY
ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH THE EUROCLEAR SYSTEM
OR CLEARSTREAM BANKING S.A. AND ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (A) THROUGH (E) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND OTHER JURISDICTIONS. HOLDERS OF INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL NOTE WILL NOTIFY ANY PURCHASER OF
SUCH RESALE RESTRICTIONS, IF THEN APPLICABLE.
2
9.125% Senior Secured Note due
2017
CUSIP No. [
]
ISIN No. [
]
US Oncology, Inc., a Delaware
corporation, promises to pay to Cede & Co., or registered
assigns, the principal sum as set forth on the Schedule of
Increases or Decreases annexed hereto on August 15,
2017.
Interest Payment Dates:
February 15 and August 15.
Record Dates: February 1 and
August 1.
3
Additional provisions of this
Security are set forth on the other side of this
Security.
IN WITNESS WHEREOF, the parties have
caused this instrument to be duly executed.
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US ONCOLOGY,
INC.
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by
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Name:
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Title:
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by
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Name:
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Title:
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TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
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Dated:
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WILMINGTON TRUST FSB,
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as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
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by:
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Authorized Signatory
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4
9.125% Senior Secured Note due 2017
(a) US Oncology, Inc., 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. The Company will pay interest semiannually on
February 15 and August 15 of each year, commencing
August 15, 2009. 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 June 18, 2009. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal at the rate
borne by the Securities plus 1% per annum, and it shall pay
interest on overdue installments of interest at the rate borne by
the Securities to the extent lawful.
(b) Special Interest. The
holder of this Security is entitled to the benefits of a
Registration Rights Agreement, dated as of June 18, 2009,
among the Company, the Subsidiary Guarantors and the Purchasers
named therein (the “Registration Agreement”).
Capitalized terms used in this paragraph (b) but not defined
herein have the meanings assigned to them in the Registration
Agreement. In the event that (i) neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has
been filed with the Commission on or prior to the 120th day
following the date of the original issuance of the Securities,
(ii) neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement has been declared effective on or
prior to the 210th day following the date of the original issuance
of the Securities, (iii) neither the Registered Exchange Offer
has been consummated nor the Shelf Registration Statement has been
declared effective on or prior to the 240th day following the date
of the original issuance of the Securities, or (iv) after the
Exchange Offer Registration Statement or the Shelf Registration
Statement has been declared effective, such Registration Statement
thereafter ceases to be effective or usable in connection with
resales of the Securities at any time that the Company is obligated
to maintain the effectiveness thereof pursuant to the Registration
Agreement (each such event referred to in clauses (i) through
(iv) above being referred to herein as a “Registration
Default”), interest (the “Special Interest”)
shall accrue (in addition to stated interest on the Securities)
from and including the date on which the first such Registration
Default shall occur to but excluding the date on which all
Registration Defaults have been cured, at a rate per annum equal to
0.25% of the principal amount of the Securities; provided ,
however , that such rate per annum shall increase by
0.25% per annum from and including the 91st day after the
first such Registration Default (and each successive 91st day
thereafter) unless and until all Registration Defaults have been
cured; provided further , however , that in no event
shall the Special Interest accrue at a rate in excess of
1.00% per annum. The Special Interest will be payable in cash
semiannually in arrears each February 15 and
August 15.
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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
February 1 or August 1 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 of America 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 Trust
Company. The Company will make all payments in respect of a
Definitive Security (including principal, premium and interest), by
mailing a check to the registered address of each Holder thereof;
provided , however , that payments on the Securities
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 preceding the relevant due date for
payment (or such other date as the Trustee may accept in its
discretion).
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3.
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Paying Agent
and Registrar
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Initially, Wilmington Trust FSB, a
federal savings bank (the “Trustee”), will act as
Paying Agent and Registrar. The Company may appoint and change any
Paying Agent or Registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Restricted Subsidiaries may
act as Paying Agent or Registrar.
The Company issued the Securities
under an Indenture dated as of June 18, 2009 (the
“Indenture”), among the Company, the Subsidiary
Guarantors 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 “TIA”). 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 TIA for a
statement of those terms.
The Securities are senior secured
obligations of the Company. This Security is one of the Offered
Securities referred to in the Indenture issued in an aggregate
principal amount of $775,000,000. The Securities include the
Offered Securities, an unlimited amount of additional Initial
Securities that may be issued under the Indenture, and any Exchange
Securities issued in exchange for Initial Securities. The Offered
Securities, such additional Initial Securities and the Exchange
Securities are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the ability
of the Company and its Restricted Subsidiaries to, among
other
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things, make certain Investments and other
Restricted Payments, pay dividends and other distributions, incur
Debt, enter into consensual restrictions upon the payment of
certain dividends and distributions by such Restricted
Subsidiaries, issue or sell shares of capital stock of such
Restricted Subsidiaries, enter into or permit certain transactions
with Affiliates, create or incur Liens, enter into or permit
certain Sale and Leaseback Transactions and make Asset Sales. The
Indenture also imposes limitations on the ability of the Company to
consolidate or merge with or into any other Person or sell,
transfer, assign, lease, convey or otherwise dispose of all or
substantially all of the Property of the Company.
Except as set forth below, the
Securities may not be redeemed at the option of the Company prior
to August 15, 2013. On and after that date, the Company may
redeem all or any portion of the Securities at once or over time,
after giving the required notice under the Indenture. The
Securities may be redeemed at the redemption prices set forth
below, plus accrued and unpaid interest, if any, to the redemption
date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest
payment date). The following prices are for Securities redeemed
during the 12-month period commencing on August 15 of the
years set forth below, and are expressed as percentages of
principal amount:
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Redemption
Price
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2013
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104.560
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%
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2014
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102.280
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%
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2015 and thereafter
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100.000
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%
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Notwithstanding the foregoing, at
any time and from time to time, prior to August 15, 2012, the
Company may redeem up to a maximum of 35% of the original aggregate
principal amount of the Securities (which includes any additional
Securities) with the proceeds from one or more Qualified Equity
Offerings (provided that, if the Qualified Equity Offering is an
offering by Parent, a portion of the net cash proceeds thereof
equal to the amount required to redeem any such Securities is
contributed to the equity capital of the Company or used to acquire
Capital Stock of the Company (other than Disqualified Stock) from
the Company), at a redemption price equal to 109.125% of the
principal amount thereof, plus accrued and unpaid interest thereon,
if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the
relevant interest payment date); provided , however ,
that after giving effect to any such redemption, at least 65% of
the original aggregate principal amount of the Securities remains
outstanding. Any such redemption shall be made within 90 days of
such Qualified Equity Offering.
7
The Company may choose to redeem all
or any portion of the Securities, at once or over time, prior to
August 15, 2013. If it does so, it may redeem the Securities,
after giving the required notice under the Indenture. To redeem the
Securities, the Company must pay a redemption price equal to the
sum of:
(a) 100% of the principal amount of
the Securities to be redeemed, plus
(b) the Applicable
Premium,
plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the
relevant interest payment date).
“ Applicable Premium
” means, with respect to any Security at any time, the
greater of (1) 1.0% of the principal amount of such Security
at such time and (2) the excess of (A) the present value
at such time of (i) the redemption price of such Security at
August 15, 2013 (such redemption price being described in the
table appearing in the first paragraph of this Paragraph (5)
exclusive of any accrued interest) plus (ii) any required
interest payments due on such Security through August 15, 2013
(including any accrued