EXHIBIT 10.13
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is dated as of September 6,
2002 by and among WellCare Holdings, LLC, a Delaware limited liability company
(the "Company"); Xxxxx Private Equity Investors LP ("Xxxxx"); Pinnacle Health
Investors, L.L.C. ("Pinnacle"); Sorrento Investment Group LLC ("Xxxxxxx");
Xxxxxxxx Street Partners V - Fourth Venture ("RSP"); Xxxx X. Xxxxxxx
("Okamoto"); and Xxxx X. Xxxxx ("Xxxxx").
As of the date hereof, (i) each of Xxxxx, Pinnacle, Xxxxxxx
and RSP owns a number of the Company's Class A Common Units; and (ii) each of
Okamoto and Farha owns a number of the Company's Class A Common Units and/or
Class C Common Units.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. Definitions. As used herein, the following terms
shall have the following meanings.
"Affiliate" means, when used with reference to a specified
Person, any Person that directly or indirectly controls or is controlled by or
is under common control with the specified Person. As used in this definition,
"control" (including, with its correlative meanings, "controlled by" and "under
common control with") shall mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by contract
or otherwise). With respect to any Person who is an individual, "Affiliates"
shall also include, without limitation, any member of such individual's Family
Group.
"Class A Common Units" means the Company's Class A Common
Units (as such term is defined in the LLC Agreement).
"Class B Common Units" means the Company's Class B Common
Units (as such term is defined in the LLC Agreement).
"Class C Common Units" means the Company's Class C Common
Units (as such term is defined in the LLC Agreement).
"Common Units" means collectively, the Class A Common Units,
the Class B Common Units and the Class C Common Units and any other equity
securities of the Company (or its successors) hereafter authorized which are not
limited to a fixed sum or percentage of par value or stated value in respect to
the rights of the holders thereof to participate in dividends or other
distributions or in the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of the issuer of such securities,
including any common equity securities of any successor entity of the Company
issued pursuant to a transaction of the type described in Section 12.16 of the
LLC Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Family Group" means, with respect to any Person who is an
individual, (i) such Person's spouse, former spouse and descendants (whether
natural or adopted), parents and their descendants and any spouse of the
foregoing persons (collectively, "relatives") or (ii) the trustee, fiduciary or
personal representative of such Person and any trust solely for the benefit of
such Person and/or such Person's relatives.
"LLC Agreement" means the Second Amended and Restated Limited
Liability Company Agreement of the Company, as amended from time to time.
"Management Registrable Securities" means, at any time, all
Other Registrable Securities that are owned by any employee of the Company or
any of its subsidiaries (or any Affiliate of any of the foregoing) as of such
time.
"Other Registrable Securities" means (i) all fully vested
Common Units acquired by, or issued or issuable to, Pinnacle, Xxxxxxx, RSP,
Xxxxxxx and Xxxxx on or after the date hereof, and (ii) all fully vested equity
securities issued or issuable directly or indirectly with respect to any Common
Units described in clause (i) above by way of a unit or stock dividend or unit
or stock split or in connection with a combination of units or shares,
recapitalization, merger, consolidation or other reorganization, including
pursuant to Section 12.16 of the LLC Agreement. As to any particular Other
Registrable Securities, such securities shall cease to be Other Registrable
Securities when they have been distributed to the public pursuant to an offering
registered under the Securities Act or sold to the public in compliance with
Rule 144.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, a bank, a trust company, a land
trust, a business trust, a governmental entity or any department, agency or
political subdivision thereof or any other entity or organization, whether or
not it is a legal entity.
"Public Offering" means an underwritten public offering and
sale of Common Units pursuant to an effective registration statement under the
Securities Act; provided that a Public Offering shall not include an offering
made in connection with a business acquisition or combination pursuant to a
registration statement on Form S-4 or any similar form, or an employee benefit
plan pursuant to a registration statement on Form S-8 or any similar form.
"Registrable Securities" means, collectively, the Other
Registrable Securities and the Xxxxx Registrable Securities.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing and distributing expenses, messenger
and delivery expenses, fees and expenses of custodians, internal expenses
(including all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each
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securities exchange on which similar securities issued by the Company are then
listed or on the NASD automated quotation system, and fees and disbursements of
counsel for the Company and the underwriters and all independent certified
public accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company.
"Rule 144" means Rule 144 under the Securities Act (or any
similar rule then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Xxxxx Registrable Securities" means (i) all Common Units
acquired by, or issued or issuable to, Xxxxx or any of Xxxxx' Affiliates on or
after the date hereof and (ii) all equity securities issued or issuable directly
or indirectly with respect to any Common Units described in clause (i) above by
way of a unit or stock dividend or unit or stock split or in connection with a
combination of units or shares, recapitalization, merger, consolidation or other
reorganization, including pursuant to Section 12.16 of the LLC Agreement. As to
any particular Xxxxx Registrable Securities, such securities shall cease to be
Xxxxx Registrable Securities when they have been distributed to the public
pursuant to an offering registered under the Securities Act or sold to the
public in compliance with Rule 144.
"Subsidiary" means, with respect to any Person, any
corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation or a limited liability company
with voting securities, a majority of the total voting power of shares of stock
(or units) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of such Person or a combination thereof, or (ii) if a
limited liability company without voting securities, partnership, association or
other business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of such Person or entity or a combination
thereof. For purposes of this Agreement, a Person or Persons shall be deemed to
have a majority ownership interest in a limited liability company, partnership,
association or other business entity if such Person or Persons shall be
allocated a majority of limited liability company, partnership, association or
other business entity gains or losses or shall be or control any managing
director, managing member, or general partner of such limited liability company,
partnership, association or other business entity.
2. Demand Registrations.
(a) Requests for Registration.
(i) At any time after the date hereof, the holder(s) of a
majority of the Xxxxx Registrable Securities may request registration
under the Securities Act of all or any portion of their Registrable
Securities on Form S-1 or any similar long-form registration (a
"Long-Form Registration"), or on Form S-2 or S-3 or any similar
short-form registration (a "Short-Form Registration") if such a short
form is available.
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(ii) All registrations requested pursuant to this Section
2(a) are referred to herein as "Demand Registrations". Each request for
a Demand Registration (a "Demand Request") shall specify the
approximate number of Registrable Securities requested to be
registered, the anticipated method or methods of distribution and the
anticipated per share price range for such offering. Within ten days
after receipt of any such Demand Request, the Company will give written
notice of such requested registration (which shall specify the intended
method of disposition of such Registrable Securities) to all other
holders of Registrable Securities (a "Company Notice") and the Company
will include (subject to the provisions of this Agreement) in such
registration, all Registrable Securities with respect to which the
Company has received written requests for inclusion therein within 20
days after the delivery of such Company Notice; provided that any such
other holder may withdraw its request for inclusion at any time prior
to executing the underwriting agreement or, if none, prior to the
applicable registration statement becoming effective.
(b) Long-Form Registrations. The holders of Xxxxx
Registrable Securities will be entitled to unlimited Long-Form Registrations.
The Company will pay all Registration Expenses in connection with any
registration initiated as a Long-Form Registration whether or not it has become
effective.
(c) Short-Form Registrations. The holders of Xxxxx
Registrable Securities will be entitled to unlimited Short-Form Registrations.
Demand Registrations by holders of Xxxxx Registrable Securities will be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form. After the Company has become subject to the reporting requirements
of the Exchange Act, the Company will use its best efforts to make Short-Form
Registrations on Form S-3 available for the sale of Xxxxx Registrable
Securities. The Company will pay all Registration Expenses in connection with
any registration initiated as a Short-Form Registration by the holders of Xxxxx
Registrable Securities whether or not it has become effective.
(d) Priority on Demand Registrations. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities, requested to be
included in such offering exceeds the number of Registrable Securities and other
securities, if any, which can be sold in an orderly manner in such offering
within a price range acceptable to holder(s) of a majority of the Registrable
Securities initiating such Demand Registration pursuant to Section 2(a) and
without adversely affecting the marketability of the offering, then the Company
will include in such Demand Registration (A) first, the number of Registrable
Securities (other than Management Registrable Securities) requested to be
included in such Demand Registration (by holders initiating such Demand
Registration as well as other holders who are permitted under this Agreement to
request the inclusion of Registrable Securities in such Demand Registration),
pro rata from among the holders of such Registrable Securities according to the
number of Registrable Securities requested by them to be so included, (B)
second, the number of Management Registrable Securities requested to be included
in such Demand Registration, pro rata from among the holders of such Management
Registrable Securities according to the number of Management Registrable
Securities requested by them to
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be so included, and (C) third, any other securities of the Company requested to
be included in such registration, in such manner as the Company may determine.
(e) Restrictions on Demand Registrations.
(i) The Company will not be obligated to file any
registration statement with respect to any Long-Form Registration
within 180 days after the effective date of a previous Long-Form
Registration or a previous registration in which the holders of
Registrable Securities were given piggyback rights pursuant to Section
3 and in which there were included not less than 80% of the number of
Registrable Securities requested to be included.
(ii) The Company may postpone for up to 90 days the filing
or the effectiveness of a registration statement for a Demand
Registration if the Company determines that such Demand Registration
would reasonably be expected to have a material adverse effect on any
proposal or plan by the Company or any of its Subsidiaries to engage in
any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer, reorganization or
similar transaction; provided that in such event the holders of
Registrable Securities initiating such Demand Registration pursuant to
Section 2(a) will be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration will not count as one of
the permitted Demand Registrations hereunder and the Company will pay
all Registration Expenses in connection with such requested
registration. The Company may use the provisions of this clause (ii) to
delay a Demand Registration initiated by holders of Xxxxx Registrable
Securities only once during any twelve-month period.
(f) Selection of Underwriters. In the case of any Demand
Registration, the holders of a majority of the number of Xxxxx Registrable
Securities to be included in such Demand Registration will have the right to
select the investment banker(s) and manager(s) to administer the offering (which
investment banker(s) and manager(s) will be nationally recognized).
(g) Other Registration Rights. Except as provided in this
Agreement, after the date hereof, the Company will not grant to any Persons the
right to request the Company to register any Common Units, or any securities
convertible or exchangeable into or exercisable for Common Units, without the
prior written consent of the holders of a majority of the number of Xxxxx
Registrable Securities.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to
register any of its Common Units under the Securities Act for its own account or
for the account of any holder of Common Units (other than pursuant to a Demand
Registration (in which case of the ability of a holder of Registrable Securities
to participate in such Demand Registration shall be governed by Section 2
hereof, including Section 2(a)(ii) hereof), other than pursuant to a
registration statement on Form S-8 or S-4 or any similar or successor form,
other than in connection with a registration the primary purpose of which is to
register debt securities (i.e., in connection with a
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so-called "equity kicker"), and, except, unless the Company has received the
prior written consent of holders of a majority of the number of Xxxxx
Registrable Securities, in connection with an initial Public Offering) (a
"Piggyback Registration"), the Company will give prompt written notice to all
holders of Registrable Securities of its intention to effect such a registration
and of such holders' rights under this Section 3(a). Upon the written request of
any holder of Registrable Securities (which request shall specify the
Registrable Securities intended to be disposed of by such holder and the
intended method of disposition thereof), the Company shall include in such
registration (subject to the provisions of this Agreement) all Registrable
Securities requested to be registered pursuant to this Section 3(a), subject to
Section 3(b) below, with respect to which the Company has received written
requests for inclusion therein within 20 days after the receipt of the Company's
notice; provided that any such other holder may withdraw its request for
inclusion at any time prior to executing the underwriting agreement or, if none,
prior to the applicable registration statement becoming effective.
(b) Priority on Primary Registrations. If a Piggyback
Registration is in part an underwritten primary registration on behalf of the
Company and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the Company and without adversely
affecting the marketability of the offering, then the Company will include in
such registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities (other than Management Registrable
Securities) requested to be included in such registration, pro rata from among
the holders of such Registrable Securities according to the number of
Registrable Securities requested by them to be so included, (iii) third, the
Management Registrable Securities requested to be included in such registration,
pro rata among the holders of such Management Registrable Securities according
to the number of Management Registrable Securities requested by them to be so
included, and (iv) fourth, any other securities requested to be included in such
registration, in such manner as the Company may determine.
(c) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to the holders initially
requesting such registration and without adversely affecting the marketability
of the offering, then the Company will include in such registration (i) first,
(A) the securities requested to be included therein by the holders requesting
such registration and (B) the Registrable Securities (other than Management
Registrable Securities) requested to be included in such registration, pro rata
from among such holders and the holders of such Registrable Securities according
to the number of Registrable Securities requested by them to be so included,
(ii) second, the Management Registrable Securities requested to be included in
such registration, pro rata among the holders of such Management Registrable
Securities according to the number of Management Registrable Securities
requested by them to be so included, and (iii) third, any other securities
requested to be included in such registration, in such manner as the Company may
determine.
(d) Other Registrations. If the Company has previously
filed a registration statement with respect to Registrable Securities pursuant
to Section 2 or pursuant to this Section
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3, and if such previous registration has not been withdrawn or abandoned, then
all the parties hereto agree that the Company shall not be required to effect
any other registration of any of its equity or similar securities or securities
convertible or exchangeable into or exercisable for its equity or similar
securities under the Securities Act (except on Forms S-4 or S-8 or any successor
or similar form or in connection with a Demand Registration), whether on its own
behalf or at the request of any holder or holders of such securities, until a
period of at least 180 days has elapsed from the effective date of such previous
registration.
(e) Registration Expenses. The Company will pay all
Registration Expenses in connection with any Piggyback Registration whether or
not such Piggyback Registration has become effective.
4. Holdback Agreements.
(a) Each holder of Registrable Securities hereby agrees
(i) not to effect any sale or distribution of Common Units, or any securities
convertible into or exchangeable or exercisable for Common Units, during the
seven days prior to and the 180-day period beginning on the effective date of an
initial Public Offering (except as part of such initial Public Offering), unless
the underwriters managing such initial Public Offering otherwise agree (which
agreement shall be equally applicable to all holders of Registrable Securities)
and (ii) to execute and deliver any reasonable agreement which is consistent
with the provisions of clause (i) of this Section 4(a) and which may be required
by the underwriters managing such initial Public Offering.
(b) The Company will not effect any sale or distribution
of Common Units, or any securities convertible into or exchangeable or
exercisable for Common Units, during the seven days prior to and during the
180-day period beginning on the effective date of an initial Public Offering
(except as part of such initial Public Offering), unless the underwriters
managing such initial Public Offering otherwise agree (which agreement shall be
equally applicable to all holders of Registrable Securities).
5. Registration Procedures. Whenever the holders of
Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company will use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective (provided that before
filing a registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to the counsel selected pursuant to Section
6(b) below copies of all such documents proposed to be filed, which documents
will be subject to the prompt review and reasonable comment of such counsel),
and upon filing such documents, the Company shall promptly notify in writing
such counsel of the receipt by the Company of any written comments by the SEC
with respect to such registration statement or prospectus or any amendment or
supplement thereto or any written request by the SEC for the amending or
supplementing thereof or for additional information with respect thereto;
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(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the SEC such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 180 days or, if
such registration statement relates to an underwritten offering, such longer
period as, in the opinion of counsel for the underwriters, a prospectus is
required by law to be delivered in connection with sales of Registrable
Securities by any underwriter or dealer or such shorter period as will terminate
when all of the securities covered by such registration statement have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof as set forth in such registration statement (but in any event
not before the expiration of any longer period required under the Securities
Act), and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement and cause the prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) if requested by the holders of a majority of the
Xxxxx Registrable Securities in connection with any Demand Registration
requested by such holders, use its commercially reasonable efforts to cause to
be included in such registration Common Units having an aggregate value (based
on the midpoint of the proposed offering price range specified in the
registration statement used to offer such securities) of up to $50.0 million, to
be offered in a primary offering of the Company's securities contemporaneously
with such offering of Registrable Securities;
(e) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject itself to
taxation in any such jurisdiction in any jurisdiction where it is not so subject
or (iii) consent to general service of process (i.e., service of process which
is not limited solely to securities law violations) in any such jurisdiction in
any jurisdiction where it is not so subject);
(f) promptly notify each seller of such Registrable
Securities, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon discovery that, or upon the discovery
of the happening of any event as a result of which the prospectus included in
such registration statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not misleading in light
of the
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circumstances under which they were made, and, at the request of any such
seller, the Company will, as soon as reasonably practicable, file and furnish to
all sellers a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(g) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on the Nasdaq National Market
System ("Nasdaq Market") and, if listed on the Nasdaq Market, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a Nasdaq "National Market System security" within the
meaning of Rule 11Aa2-1 under the Exchange Act or, failing that, to secure
Nasdaq Market authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities with the
National Association of Securities Dealers;
(h) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(i) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including, without limitation,
effecting a split or a combination of stock or units); provided that no holder
of Registrable Securities shall have any indemnification or contribution
obligations inconsistent with Section 7 hereof;
(j) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent accountants to
supply all information and participate in due diligence sessions reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;
(k) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months beginning with the first day of the Company's
first full calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 promulgated thereunder;
(l) use reasonable best efforts to prevent the issuance
of any stop order ("Stop Order") suspending the effectiveness of a registration
statement, or of any order suspending or preventing the use of any related
prospectus or suspending the qualification of any securities included in such
registration statement for sale in any jurisdiction, and, in the event of such
issuance, the Company shall immediately notify the holders of Registrable
Securities included in
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such registration statement of the receipt by the Company of such notification
and shall use its best efforts promptly to obtain the withdrawal of such order;
(m) use its best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities, and cooperate and assist with any filings to be made with the NASD;
(n) obtain one or more "cold comfort" letters, dated the
effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), signed by the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by "cold comfort" letters as the holders of a majority of the
Registrable Securities being sold reasonably request; and
(o) provide a legal opinion of the Company's outside
counsel, dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), with respect to the registration
statement, each amendment and supplement thereto, the prospectus included
therein (including the preliminary prospectus) and such other documents relating
thereto in customary form and covering such matters of the type customarily
covered by legal opinions of such nature.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if in such holder's
sole and exclusive judgment, such holder is or might be deemed to be an
underwriter or a controlling person of the Company, such holder shall have the
right to (i) require the insertion therein of language, in form and substance
satisfactory to such holder and presented to the Company in writing, to the
effect that the holding by such holder of such securities is not to be construed
as a recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar Federal statute then in force,
require the deletion of the reference to such holder; provided, that with
respect to this clause (ii), if requested by the Company, such holder shall
furnish to the Company an opinion of counsel to such effect, which opinion and
counsel shall be reasonably satisfactory to the Company.
6. Registration Expenses.
(a) All expenses incident to the Company's performance of
or compliance with this Agreement, including without limitation all Registration
Expenses, will be borne by the Company.
(b) In connection with each Demand Registration and each
Piggyback Registration, the Company will reimburse the holders of Registrable
Securities included in such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a
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majority of the Registrable Securities initially requesting such registration
(which counsel shall be retained to represent all such holders).
7. Indemnification.
(a) By the Company. The Company agrees to, and will cause
each of its Subsidiaries to agree to, indemnify, to the fullest extent permitted
by law, each holder of Registrable Securities, its officers, directors, members,
employees, agents, stockholders and general and limited partners and each Person
who controls such holder (within the meaning of the Securities Act and Exchange
Act) against any and all losses, claims, damages, liabilities and expenses (or
actions or proceedings, whether commenced or threatened, in respect thereof),
joint or several, arising out of or based upon any untrue or alleged untrue
statement of material fact contained in any registration statement, reports
required and other documents filed under the Exchange Act, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto, together
with any documents incorporated therein by reference, or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation or alleged violation by
the Company or any of its Subsidiaries of any federal, state, foreign or common
law rule or regulation and relating to action or inaction in connection with any
such registration, disclosure document or other document and shall reimburse
such holder, officer, director, member, employee, agent, stockholder, partner or
controlling Person for any legal or other expenses, including any amounts paid
in any settlement effected with the consent of the Company, which consent will
not be unreasonably withheld or delayed, incurred by such holder, officer,
director, member, employee, agent, stockholder, partner or controlling Person in
connection with the investigation or defense of such loss, claim, damage,
liability or expense, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such holder expressly for
use therein. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers, directors, agents and employees and
each Person who controls such underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the indemnification of
the holders of Registrable Securities.
(b) By the Holders. In connection with any registration
statement in which a holder of Registrable Securities is participating, each
such holder will furnish to the Company in writing such information and
affidavits about such holder as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, will indemnify the Company, its directors and officers and
each Person who controls the Company (within the meaning of the Securities Act)
and the other holders of Registrable Securities against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder which authorizes its use in the
applicable document; provided, that the obligation to indemnify will be
individual, not joint and several, for each holder and will be limited to the
net amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
11
(c) Claim Procedures. Any Person entitled to
indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
(provided that the failure to give prompt notice will not impair any Person's
right to indemnification hereunder to the extent such failure has not prejudiced
the indemnifying party) and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit the indemnifying party to
assume the defense thereof, jointly with any other indemnifying party similarly
notified to the extent it may wish, with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party will not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld or
delayed) and the indemnifying party shall not, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof, a release from all
liability in respect of such claim or litigation provided by the claimant or
plaintiff to such indemnified party. An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will not be obligated to pay
(i) the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim or (ii) any settlement made by any indemnified party without such
indemnifying party's consent (but such consent will not be unreasonably
withheld).
(d) Survival; Contribution. The indemnification provided
for under this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
agent or employee and each other Person who participates as an underwriter in
the offering or sale of such securities and each other Person, if any, who
controls such indemnified party (within the meaning of the Securities Act), and
will survive the transfer of securities. The Company also agrees to make such
provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Company's indemnification is
unavailable for any reason.
8. Participation in Underwritten Registrations. No
Person may participate in any registration hereunder which is underwritten
unless such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Person or Persons
entitled hereunder to approve such arrangements (including, without limitation,
pursuant to the terms of any over-allotment or "green shoe" option requested by
the managing underwriter(s), provided that no holder of Registrable Securities
will be required to sell more than the number of Registrable Securities that
such holder has requested the Company to include in any registration) and (b)
completes and executes all customary questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements; provided, that no holder of Registrable
Securities included in any underwritten registration shall be required to make
any representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such holder and such holder's intended
method of distribution) or to undertake any indemnification or contribution
obligations to the Company or the underwriters with respect thereto, except as
otherwise provided in Section 7.
12
9. Rule 144 Reporting. With a view to making available
to the holders of Registrable Securities the benefits of certain rules and
regulations of the SEC which may permit the sale of the Registrable Securities
to the public without registration, the Company agrees at its expense to use its
best efforts to:
(a) make and keep current public information available,
within the meaning of Rule 144 or any similar or analogous rule promulgated
under the Securities Act, at all times after it has become subject to the
reporting requirements of the Exchange Act;
(b) file with the SEC, in a timely manner, all reports
and other documents required of the Company under the Securities Act and
Exchange Act (after it has become subject to such reporting requirements); and
(c) so long as any party hereto owns any Registrable
Securities, furnish to such Person forthwith upon request, a written statement
by the Company as to its compliance with the reporting requirements of said Rule
144 (at any time commencing 90 days after the effective date of the first
registration filed by the Company for an offering of its securities to the
general public), the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements); a copy of the most recent
annual or quarterly report of the Company; and such other reports and documents
as such Person may reasonably request in availing itself of any rule or
regulation of the SEC allowing it to sell any such securities without
registration.
10. Notices. All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered if
delivered personally, sent via a nationally recognized overnight courier, or
sent via facsimile to the recipient, or if sent by certified or registered mail,
return receipt requested, will be deemed to have been given two business days
thereafter. Such notices, demands and other communications shall be sent to any
holder of Registrable Securities at such holder's last address on the records of
the Company, and to the Company at the address indicated below:
To the Company:
WellCare Holdings, LLC
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer and Secretary
Tel: (000) 000-0000
Fax: (000) 000-0000
13
With a copy, which shall not constitute notice, to:
Xxxxx Private Equity Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: W. Xxxxx Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address, telecopy number or to the attention of such other person
as the recipient party shall have specified by prior written notice to the
sending party.
11. Miscellaneous.
(a) Remedies. Any Person having rights under any
provision of this Agreement will be entitled to enforce such rights specifically
to recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. The parties hereto
agree and acknowledge that money damages may not be an adequate remedy for any
breach of the provisions of this Agreement and that any party may in its sole
discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and for
other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(b) Amendments and Waivers. The provisions of this
Agreement may be amended or waived only upon the prior written consent of (i)
the Company, (ii) the holders of at least a majority of the number of Other
Registrable Securities and (iii) the holders of at least a majority of the
number of Xxxxx Registrable Securities; and any amendment to which such written
consent is obtained will be binding upon the Company and all holders of
Registrable Securities.
14
(c) Successors and Assigns. All covenants and agreements
in this Agreement by or on behalf of any of the parties hereto will bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not, including any corporation which is a
successor to the Company.
(d) Severability. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
(e) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement.
(f) Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER
OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(h) No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
(i) Transfer. Prior to transferring any Registrable
Securities (other than a transfer pursuant to which such securities cease to be
Registrable Securities) to any Person, the Person transferring such Registrable
Securities will cause the prospective transferee to execute and deliver to the
Company, a joinder to this Agreement substantially in the form of Exhibit A
hereto pursuant to which the prospective transferee agrees to be bound by this
Agreement to the same extent as the Person transferring such Registrable
Securities with respect to the Registrable Securities so transferred; provided,
however that, notwithstanding the foregoing or anything contained herein to the
contrary, in the event any holder of Xxxxx Registrable Securities transfers such
Xxxxx Registrable Securities to any Person that is not an Affiliate of such
holder, then, subject to approval by the Company (which approval will be deemed
granted by the Company if an officer of the Company signs the applicable joinder
to this Agreement), once transferred to such Person, such Registrable Securities
may be deemed "Other Registrable Securities" for all purposes of this Agreement
rather than "Xxxxx Registrable Securities".
(j) Issuance by the Company of Additional Common Units.
The parties hereto hereby acknowledge that, after the date hereof, the Company
may issue additional Common Units to certain Persons (the "New Members"). In
connection with any such issuance,
15
the parties hereto agree that the Company may grant (but shall be under no
obligation to grant) such New Members rights substantially similar to the rights
granted to the holders of Other Registrable Securities hereunder (provided that,
if such grant is made, each such New Member is also subject to the obligations
of holders of Other Registrable Securities hereunder) by causing each such New
Member to execute a joinder to this Agreement substantially in the form of
Exhibit A hereto.
* * * * *
16
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
WELLCARE HOLDINGS, LLC
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
XXXXX PRIVATE EQUITY INVESTORS LP
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Attorney-in-fact
PINNACLE HEALTH INVESTORS, L.L.C.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: President
SORRENTO INVESTMENT GROUP LLC
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
XXXXXXXX STREET PARTNERS V - FOURTH
VENTURE
By: /s/ W. Xxxxx Xxxxxxx
--------------------------------
Name: W. Xxxxx Xxxxxxx
Title: Partner
/s/ Xxxx X. Xxxxxxx
------------------------------------
XXXX X. XXXXXXX
/s/ Xxxx X. Xxxxx
------------------------------------
XXXX X. XXXXX
