Exhibit 4.2
EXECUTION COPY
BANC OF AMERICA SECURITIES
LLC
$75,000,000 AGGREGATE PRINCIPAL
AMOUNT
ALLSCRIPTS HEALTHCARE SOLUTIONS,
INC.
3.50% CONVERTIBLE SENIOR
DEBENTURES
DUE 2024
Resale Registration Rights
Agreement
dated July 6, 2004
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RESALE REGISTRATION RIGHTS
AGREEMENT, dated as of July 6, 2004, between Allscripts Healthcare
Solutions, Inc., a Delaware corporation (together with any
successor entity, the “ Company ”) and Banc of
America Securities LLC, as representative of the several initial
purchasers (the “ Initial Purchasers ”) under
the Purchase Agreement (as defined below).
Pursuant to the Purchase Agreement,
dated as of June 29, 2004, between the Company and Banc of America
Securities LLC, as representative of the Initial Purchasers (the
“ Purchase Agreement ”), the Initial Purchasers
have agreed to purchase from the Company $75,000,000 ($82,500,000
if the Initial Purchasers exercise their option in full) in
aggregate principal amount of the Company’s 3.50% Convertible
Senior Debentures due 2024 (the “ Debentures ”).
The Debentures will be convertible into fully paid, nonassessable
shares of common stock, par value $0.01 per share, of the Company
(“ Common Stock ”), cash or a combination of
shares of Common Stock and cash, at the Company’s option. The
Debentures will be convertible on the terms, and subject to the
conditions, set forth in the Indenture (as defined herein). To
induce the Initial Purchasers to purchase the Debentures, the
Company has agreed to provide the registration rights set forth in
this Agreement pursuant to Section 5(g) of the Purchase
Agreement.
The parties hereby agree as
follows:
1. Definitions. Capitalized
terms used in this Agreement without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized terms shall have the
following meanings:
“ Affiliate ” of
any specified Person means any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common
control with, such specified Person. For purposes of this
definition, control of a Person means the power, direct or
indirect, to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise, and the
terms “controlling” and “controlled” have
meanings correlative to the foregoing.
“ Agreement ”
means this Resale Registration Rights Agreement, as amended from
time to time in accordance with the terms hereof.
“ Amended Effectiveness
Deadline Date ” has the meaning set forth in Section 2(e)
hereof.
“ Business Day ”
has the meaning set forth in the Indenture.
“ Commission ”
means the Securities and Exchange Commission.
“ Common Stock ”
has the meaning set forth in the preamble hereto.
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“ Company ” has
the meaning set forth in the preamble hereto.
“ Debentures ”
has the meaning set forth in the preamble hereto.
“ Effectiveness Period
” has the meaning set forth in Section 2(a)(iii)
hereof.
“ Effectiveness Target
Date ” has the meaning set forth in Section 2(a)(ii)
hereof.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“ Holder ” means
a Person who owns, beneficially or otherwise, Transfer Restricted
Securities.
“ Indemnified Holder
” has the meaning set forth in Section 6(a)
hereof.
“ Indenture ”
means the Indenture, dated as of July 6, 2004 between the Company
and LaSalle Bank, N.A., as trustee, pursuant to which the
Debentures are to be issued, as such Indenture is amended, modified
or supplemented from time to time in accordance with the terms
thereof.
“ Initial Purchasers
” has the meaning set forth in the preamble
hereto.
“ Liquidated Damages
” has the meaning set forth in Section 3(b)
hereof.
“ Liquidated Damages
Payment Date ” means each July 15
th
and January 15
th
.
“ Majority of Holders
” means Holders holding over 50% of the aggregate principal
amount of Debentures outstanding; provided that, for the purpose of
this definition, a Holder of shares of Common Stock that constitute
Transfer Restricted Securities shall be deemed to hold an aggregate
principal amount of Debentures (in addition to the principal amount
of Debentures held by such Holder) equal to the product of (A) the
quotient of (x) the number of such shares of Common Stock held by
such Holder and (y) the conversion rate (as expressed in the number
of shares of Common Stock issuable per $1,000 principal amount of
Debentures) in effect at the time of the conversion of Debentures
into such shares of Common Stock as determined in accordance with
the Indenture and (B) $1,000.
“ NASD ” means
the National Association of Securities Dealers, Inc.
“ Notice and
Questionnaire ” means a written notice executed by a
Holder and delivered to the Company containing substantially the
information called for by the Selling Securityholder Notice and
Questionnaire attached as Annex A to the Offering Memorandum of the
Company dated June 29, 2004 relating to the Debentures.
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“ Notice Holder ”
means on any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date.
“ Person ” means
an individual, partnership, corporation, limited liability company,
association, joint-stock company, unincorporated organization,
trust, joint venture or a government or agency or political
subdivision thereof.
“ Purchase Agreement
” has the meaning set forth in the preamble
hereto.
“ Prospectus ”
means the prospectus included in a Shelf Registration Statement, as
amended or supplemented by all prospectus supplements and by all
amendments thereto, including post-effective amendments, and all
material incorporated by reference into such prospectus.
“ Record Holder ”
means with respect to any Liquidated Damages Payment Date, each
Person who is a Holder on the 15 th day preceding the relevant
Liquidated Damages Payment Date, including a Holder that owns
shares of Common Stock which constitute Transfer Restricted
Securities on the 15 th day preceding the relevant
Liquidated Damages Payment Date.
“ Registration Default
” has the meaning set forth in Section 3(a)
hereof.
“ Securities Act
” means the Securities Act of 1933, as amended.
“ Shelf Filing Deadline
” has the meaning set forth in Section 2(a)(i)
hereof.
“ Shelf Registration
Statement ” has the meaning set forth in Section 2(a)(i)
hereof.
“ Subsequent Shelf
Registration Statement ” has the meaning set forth in
Section 2(c) hereof.
“ Suspension Notice
” has the meaning set forth in Section 4(c)
hereof.
“ Suspension Period
” has the meaning set forth in Section 4(b)(i)
hereof.
“ TIA ” means the
Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in
effect on the date the Indenture is qualified under the
TIA.
“ Transfer Restricted
Securities ” means each Debenture and each share of
Common Stock issued upon conversion of any Debenture until the
earliest of:
(i) the date on which such Debenture
or such share of Common Stock issued upon conversion has been
effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement;
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(ii) the date on which such
Debenture or such share of Common Stock issued upon conversion is
transferred in compliance with Rule 144 under the Securities Act
(or any similar provision then in effect) or may be sold or
transferred by a Person who is not an affiliate of the Company
pursuant to Rule 144(k) under the Securities Act (or any other
similar provision then in effect); or
(iii) the date on which such
Debenture or such share of Common Stock issued upon conversion
ceases to be outstanding (whether as a result of redemption,
repurchase and cancellation, conversion or otherwise).
“ Trustee ” means
LaSalle Bank, N.A., the trustee under the Indenture, and its
permitted successors and assigns.
“ Underwritten
Registration ” means a registration in which Debentures
of the Company are sold to an underwriter for reoffering to the
public.
Unless the context otherwise
requires, the definitions set forth in this Section 1 shall be
equally applicable to both the singular and plural
forms.
2. Shelf Registration
.
(a) The Company shall:
(i) not later than 120 days after
the date hereof (the “ Shelf Filing Deadline ”),
cause to be filed a registration statement pursuant to Rule 415
under the Securities Act (the “ Shelf Registration
Statement ”), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities held by
Holders that have provided the information required pursuant to the
terms of Section 2(b) hereof;
(ii) use its commercially reasonable
efforts to cause the Shelf Registration Statement to be declared
effective by the Commission not later than 210 days after the date
hereof (the “ Effectiveness Target Date ”);
and
(iii) use its commercially
reasonable efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended as required by the
provisions of Section 4(b) hereof to the extent necessary to ensure
that (A) it is available for resales by the Holders entitled to the
benefit of this Agreement and (B) it conforms with the requirements
of this Agreement and the Securities Act and the rules and
regulations of the Commission promulgated thereunder as announced
from time to time, for a period (the “ Effectiveness
Period ”) until the earliest of:
(1) the second anniversary of the
last date of original issuance of any of the Debentures;
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(2) the date on which Holders that
are not affiliates of the Company (as defined in Rule 144 under the
Securities Act) are able to sell all Transfer Restricted Securities
immediately without restriction pursuant to the volume limitation
provisions of Rule 144 under the Securities Act; or
(3) the date on which all of the
Transfer Restricted Securities are sold pursuant to the Shelf
Registration Statement or pursuant to Rule 144 under the Securities
Act or any similar provision then in effect.
(b) At the time the Shelf
Registration Statement is declared effective, each Holder that
became a Notice Holder on or prior to the date five (5) Business
Days prior to such time of effectiveness shall be named as a
selling securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of Transfer Restricted
Securities in accordance with applicable law. None of the
Company’s securityholders (other than Holders that have
complied with the provisions of this Agreement) shall have the
right to include any of the Company’s securities in the Shelf
Registration Statement.
(c) If the Shelf Registration
Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness
Period (other than because all Transfer Restricted Securities
registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Transfer Restricted Securities),
the Company shall use its commercially reasonable efforts to obtain
the prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration Statement
in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional
Shelf Registration Statement covering all of the securities that as
of the date of such filing are Transfer Restricted Securities ( a
“ Subsequent Shelf Registration Statement ”). If
a Subsequent Shelf Registration Statement is filed, the Company
shall use its commercially reasonable efforts to cause the
Subsequent Shelf Registration Statement to become effective as
promptly as is practicable after such filing and to keep such
Subsequent Shelf Registration Statement continuously effective
until the end of the Effectiveness Period.
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(d) The Company shall supplement and
amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement, if
required by the Securities Act or as reasonably requested in
writing by the Initial Purchasers or by the Trustee on behalf of
the Holders covered by such Shelf Registration
Statement.
(e) Each Holder agrees that if such
Holder wishes to sell Transfer Restricted Securities pursuant to
the Shelf Registration Statement and related Prospectus, it will do
so only in accordance with this Section 2(e) and Section 4. From
and after the date the Shelf Registration Statement is declared
effective the Company shall, as promptly as practicable after the
date a Notice and Questionnaire is received by the Company, and in
any event upon the later of (x) thirty (30) Business Days after
such date or (y) thirty (30) Business Days after the expiration of
any Suspension Period in effect when the Notice and Questionnaire
is delivered or put into effect within thirty (30) Business Days of
such delivery date:
(i) if required by applicable law,
file with the SEC a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable
law, file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file
any other required document so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in
the Shelf Registration Statement and the related Prospectus in such
a manner as to permit such Holder to deliver such Prospectus to
purchasers of the Transfer Restricted Securities in accordance with
applicable law and, if the Company shall file a post-effective
amendment to the Shelf Registration Statement, use its commercially
reasonable efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the “Amendment
Effectiveness Deadline Date” ) that is forty-five (45)
days after the date such post effective amendment is required by
this clause to be filed;
(ii) upon its request, provide such
Holder copies of any documents filed pursuant to Section 2(e)(i)
hereof; and
(iii) notify such Holder as promptly
as practicable after the effectiveness under the Securities Act of
any post-effective amendment filed pursuant to Section 2(e)(i)
hereof;
provided that if such Notice and Questionnaire is
delivered during a Suspension Period or a Suspension Period begins
within thirty (30) Business Days after the delivery of such Notice
and Questionnaire, the Company shall so inform the Holder
delivering such Notice and Questionnaire and shall take the actions
set
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forth in clauses (i), (ii) and (iii) above
within thirty (30) Business Days after the expiration of the
Suspension Period in accordance with Section 4(b); and
provided , further , that the Company shall not be
required to file more than one amendment to the Shelf Registration
Statement or supplement to the Prospectus pursuant to this Section
2(e) to name additional Holders in any two calendar month period,
and to the extent a completed Notice and Questionnaire is received
by the Company from a Holder in any two-month period in which the
Company has already filed such an amendment or supplement, the
Company shall not be required to file an amendment or supplement to
name additional Holders in respect of such Holder until the later
of (x) the first Business Day in the following two-month period and
(y) within ten (10) Business Days after receipt of the
Holder’s completed Notice and Questionnaire. Notwithstanding
anything contained herein to the contrary, (i) the Company shall be
under no obligation to name any Holder that is not a Notice Holder
as a selling securityholder in any Registration Statement or
related Prospectus and (ii) the Amendment Effectiveness Deadline
Date shall be extended by up to ten (10) Business Days from the
expiration of a Suspension Period (and the Company shall incur no
obligation to pay Liquidated Damages during such extension) if such
Suspension Period shall be in effect on the Amendment Effectiveness
Deadline Date.
3. Liquidated
Damages.
(a) Each event referred to in the
following clauses (i) through (iv) is a “ Registration
Default ”:
(i) the Shelf Registration Statement
is not filed with the Commission prior to or on the Shelf Filing
Deadline;
(ii) the Shelf Registration
Statement has not been declared effective by the Commission prior
to or on the Effectiveness Target Date;
(iii) except as provided in Section
4(b)(i) hereof, the Shelf Registration Statement is filed and
declared effective but, during the Effectiveness Period, shall
thereafter cease to be effective or fail to be usable for its
intended purpose without being succeeded within ten (10) Business
Days (or, if any Suspension Period is then in effect, the fifth
Business Day following the expiration of such Suspension Period) by
a post-effective amendment to the Shelf Registration Statement, a
supplement to the Prospectus or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
that cures such failure and, in the case of a post-effective
amendment, is itself immediately declared effective; or
(iv) (A) prior to or on the 45th or
60th day, as the case may be, of any Suspension Period, such
suspension has not been terminated or (B) the Suspension Periods
exceed an aggregate of 120 days in any 360-day period.
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For purposes of this Agreement, each
Registration Default set forth above shall begin and be cured on
the dates set forth in the table below:
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Type of
Registration Default
by
Clause
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Beginning
Date
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Cure
Date
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(i)
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Shelf Filing Deadline
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the date on which the Shelf Registration
Statement is filed
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(ii)
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Effectiveness Target Date
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the date on which the Shelf Registration
Statement is declared effective by the Commission
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(iii)
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the date that is ten (10) Business Days
following the date that the Shelf Registration Statement ceases to
be effective or fails to be usable for its intended
purpose
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the date on which any post-effective amendment
is declared effective by the Commission or any supplement to the
Prospectus or report is filed that makes the Shelf Registration
Statement usable
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(iv)
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the date on which a Suspension Period, or the
aggregate duration of Suspension Periods in any period, exceeds the
permitted number of days
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the date on which the applicable Suspension
Period is terminated
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(b) If a Registration Default
occurs
(A) in respect of the Debentures, to
each Holder of Debentures, other than a Registration Default
relating to a failure to file or have an effective Shelf
Registration Statement with respect to shares of Common Stock
issuable upon conversion of the Debentures that are Transfer
Restricted Securities, the Company hereby agrees to pay interest
(“ Liquidated Damages ”) with respect to the
Debentures that are Transfer Restricted Securities from
and
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including the day following the
beginning of the Registration Default to but excluding the earlier
of (1) the day on which the Registration Default has been cured and
(2) the date the Shelf Registration Statement is no longer required
to be kept effective, accruing at a rate (x) with respect to the
first 90-day period during which a Registration Default shall have
occurred and be continuing, equal to 0.25% per annum of the
aggregate principal amount of the Debentures that are Transfer
Restricted Securities, and (y) with respect to the period
commencing on the 91st day following the day the Registration
Default shall have occurred and be continuing, equal to 0.50% per
annum of the aggregate principal amount of the Debentures that are
Transfer Restricted Securities; provided that in no event
shall Liquidated Damages accrue at a rate per year exceeding 0.50%
of the aggregate principal amount of the Debentures that are
Transfer Restricted Securities; and
(B) in respect of any shares of
Common Stock, to each Holder of shares of Common Stock issued upon
conversion of the Debentures, no Liquidated Damages on such Common
Stock will be payable, but the Holder of such shares of Common
Stock shall be entitled to receive additional Common Stock upon
conversion (except to the extent that the Company elects to deliver
cash upon conversion).
Notwithstanding the provisions in
this Section 3(b), if any Liquidated Damages are payable as a
result of the Company’s failure to add the name of a Holder
as a selling securityholder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Transfer Restricted
Securities and if such failure shall have not resulted in a
Registration Default with respect to the other Holders, only such
Holder that was not named as a selling securityholder shall be
entitled to receive such Liquidated Damages.
(c) All accrued Liquidated Damages
shall be paid in arrears to Record Holders by the Company on each
Liquidated Damages Payment Date. Upon the cure of all Registration
Defaults relating to any particular Debenture or share of Common
Stock, the accrual of Liquidated Damages with respect to such
Debenture or share of Common Stock will cease.
(d) All obligations of the Company
set forth in this Section 3 that are outstanding with respect to
any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such time
as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
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The parties hereto agree that the
Liquidated Damages provided for in this Section 3 constitute a
reasonable estimate of the damages that may be incurred by Holders
by reason of any Registration Default. The Liquidated Damages set
forth above shall be the exclusive monetary remedy available to the
Holders for each Registration Default.
4. Registration
Procedures.
(a) In connection with the Shelf
Registration Statement, the Company shall comply with all the
provisions of Section 4(b) hereof and shall use its commercially
reasonable efforts to effect such registration to permit the sale
of the Transfer Restricted Securities, and pursuant thereto, shall
as promptly as is practicable but no later than the Shelf Filing
Deadline prepare and file with the Commission a Shelf Registration
Statement relating to the registration on any appropriate form
under the Securities Act.
(b) In connection with the Shelf
Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer Restricted
Securities, the Company shall:
(i) Subject to any notice by the
Company in accordance with Section 4(b) hereof of the existence of
any fact or event of the kind described in Section 4(b)(iii)(D)
hereof, use its commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective during the
Effectiveness Period; upon the occurrence of any event that would
cause the Shelf Registration Statement, any amendment thereto, any
document incorporated by reference therein or the Prospectus
contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the Effectiveness Period, the
Company shall file as promptly as is practicable an appropriate
amendment to the Shelf Registration Statement, a supplement to the
Prospectus or a report filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case
of clause (A), correcting any such misstatement or omission, and,
in the case of either clause (A) or (B), use its commercially
reasonable efforts to cause such amendment to be declared effective
and the Shelf Registration Statement and the related Prospectus to
become usable for their intended purposes as soon as practicable
thereafter. Notwithstanding the foregoing, the Company may suspend
the effectiveness of the Shelf Registration Statement by written
notice
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to the Holders for a period not to
exceed an aggregate of 45 days in any 90-day period (each such
period, a “ Suspension Period ”) if:
(x) an event occurs and is
continuing as a result of whic