EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of October , 1997
by and among Paragon Health Network, Inc., a Delaware corporation (the
"Company"), and each other person executing this Agreement (the "Investors").
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The following terms shall have the meanings
ascribed to them below:
"Apollo Holders" means, collectively, Apollo Investment Fund III, L.P.,
Apollo UK Partners III, L.P., and Apollo Overseas Partners III, L.P., and any
transferee of an Apollo Holder unless the transferor notifies the Company that
such transferee shall not be entitled to any of the rights of an Apollo Holder
under Section 2.1 hereof.
"Demanding Holder" means any Holder who has initiated a registration request
in compliance with Section 2.1(a); provided, that any action required or
permitted to be taken under this Agreement by any Demanding Holders shall be
taken by action of the holders of a majority of the Registrable Securities
held by such Demanding Holders.
"Demand Registration" means a registration of Registrable Securities under
the Securities Act pursuant to a request made under Section 2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"Effective Date" means the date of the closing under the Amended and
Restated Agreement and Plan of Merger, dated as of September 17, 1997, among
Apollo Management, L.P., on behalf of one or more managed investment funds,
Apollo LCA Acquisition Corp. and the Company.
"Holder" means each Investor that holds Registrable Securities and any party
who shall hereafter acquire from an Investor and hold Registrable Securities.
"Person" means any individual or a corporation, partnership, joint venture,
association, trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance on Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all materials
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
"Registrable Security" means each Share held by a Holder until (i) it has
been effectively registered under the Securities Act and disposed of pursuant
to an effective registration statement (other than the Registration Statement
on Form S-4 filed in connection with the Merger), (ii) it is sold under
circumstances in which all of the applicable conditions of Rule 144 (or any
similar provisions then in force) under the Securities Act are met, including
a sale pursuant to the provisions of Rule 144(k) or (iii) it has been
otherwise transferred and it may be resold by the person receiving such Share
without registration under the Securities Act.
"Registration Statement" means any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
"Securities Act" means the Securities Act of 1933, as amended, and the rules
and regulations thereunder.
"Selling Holder" means a Holder who sells or proposes to sell Registrable
Securities pursuant to a registration statement under the Securities Act.
"Shares" means the shares of common stock, par value $.01 per share of the
Company.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1 Demand Registration.
(a) Request for Registration. At any time and from time to time on or after
the Effective Date the Apollo Holders collectively may make a total of two
written requests for a Demand Registration of not less than 10% of the
Registrable Securities held by the Apollo Holders; provided, that the Company
shall in no event be obligated to effect more than one Demand Registration in
any 12-month period. Each such request will specify the number of Registrable
Securities proposed to be sold and will also specify the intended method of
disposition thereof.
If Holders of a majority of the then outstanding Registrable Securities
requested to be included in such registration pursuant to Section 2.1(a)
request that such Demand Registration be a "shelf" registration pursuant to
Rule 415 under the Securities Act, the Company shall file such Demand
Registration under Rule 415 and shall keep the Registration Statement filed in
respect thereof effective for a period which shall terminate on the earlier of
(i) twelve months from the date on which the Commission declares such
Registration Statement effective and (ii) the date on which all Registrable
Securities covered by such Registration Statement have been sold pursuant to
such Registration Statement.
(b) Effective Registration. A registration will not be deemed to have been
effected as a Demand Registration unless it has been declared effective by the
Commission and the Company has complied in all material respects with its
obligations under this Agreement with respect thereto; provided that if, the
amount of Registrable Securities to be registered on behalf of the Demanding
Holders is reduced by more than 10% pursuant to Section 2.3(a) hereof or if
after such Demand Registration has become effective, the offering of
Registrable Securities pursuant to such registration is or becomes the subject
of any stop order, injunction or other order or requirement of the Commission
or any other governmental or administrative agency, or if any court prevents
or otherwise limits the sale of Registrable Securities pursuant to the
registration (for any reason other than the acts or omissions of the Holders),
such registration will be deemed not to have been effected. If (i) a
registration requested pursuant to this Section 2.1 is deemed not to have been
effected or (ii) the registration requested pursuant to this Section 2.1 does
not remain effective for a period of at least 200 days, or twelve months with
respect to a "shelf" registration, beyond the effective date thereof or until
the consummation of the distribution by the Holders of the Registrable
Securities included in such registration statement, then such registration
statement shall not count as one of the two Demand Registrations that may be
requested by the Demanding Holder(s) in question and the Company shall
continue to be obligated to effect a registration pursuant to this Section 2.
1.
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The Demanding Holders may withdraw all or any part of the Registrable
Securities from a Demand Registration at any time (whether before or after the
filing or effective date of such Demand Registration), and if all such
Registrable Securities are withdrawn, to withdraw the demand related thereto.
If at any time a Registration Statement is filed pursuant to a Demand
Registration, and subsequently a sufficient number of Registrable Securities
are withdrawn from the Demand Registration so that such Registration Statement
does not cover at least the required amounts specified by Section 2.1(a), and
an additional number of Registrable Securities is not so included, the Company
may (or shall, if requested by the Demanding Holders) withdraw the
Registration Statement, provided that if the Demanding Holders bear the
expenses associated with such withdrawn Registration Statement, such
Registration Statement will not count as a Demand Registration and the Company
shall continue to be obligated to effect a registration pursuant to this
Section 2.1. If the Demanding Holders determine to bear such expenses, such
expenses shall be borne by the Demanding Holder(s) whose withdrawal of
Registrable Securities resulted in such Registration Statement not covering
the specified required amounts.
(c) Selection of Underwriter. If the Demanding Holders so elect, the
offering of Registrable Securities pursuant to a Demand Registration shall be
in the form of an underwritten offering. The Demanding Holders shall select
one or more nationally recognized firms of investment bankers to act as the
book-running managing Underwriter or Underwriters in connection with such
offering and shall select any additional investment bankers and managers to be
used in connection with the offering.
Section 2.2 Piggy-Back Registration. If at any time the Company proposes to
file a Registration Statement under the Securities Act with respect to an
offering of equity securities by the Company for its own account or for the
account of any securityholders of any class of its equity securities (other
than (i) a registration statement on Form S-4 or S-8 (or any substitute form
that may be adopted by the Commission) or (ii) a registration statement filed
in connection with an exchange offer or offering of securities solely to the
Company's existing securityholders), including a Registration Statement
relating to a Demand Registration, then the Company shall give written notice
of such proposed filing to the Holders as soon as practicable (but in no event
less than 20 days before the anticipated filing date), and such notice shall
offer such Holders the opportunity to register such number of shares of
Registrable Securities as each such Holder may request (which request shall
specify the Registrable Securities intended to be disposed of by such Holder
and the intended method of distribution thereof) (a "Piggy-Back Registration")
.
The Company shall use its best efforts to cause the managing Underwriter or
Underwriters of a proposed underwritten offering to permit the Registrable
Securities requested by the Holders thereof to be included in a Piggy-Back
Registration (the "Piggy-Back Holders") to be included on the same terms and
conditions as any similar securities of the Company or any other
securityholder included therein and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method of
distribution thereof. Any Holder shall have the right to withdraw its request
for inclusion of its Registrable Securities in any registration statement
pursuant to this Section 2.2 by giving written notice to the Company of its
request to withdraw. Subject to the provisions of Section 2.1, the Company may
withdraw a Piggy-Back Registration at any time prior to the time it becomes
effective, provided that the Company shall reimburse the Piggy-Back Holders
for all reasonable out-of-pocket expenses (including counsel fees and
expenses) incurred prior to such withdrawal.
No registration effected under this Section 2.2, and no failure to effect a
registration under this Section 2.2, shall relieve the Company of its
obligations pursuant to Section 2.1, and no failure to effect a registration
under this Section 2.2 and to complete the sale of Shares in connection
therewith shall relieve the Company of any other obligation under this
Agreement (including, without limitation, the Company's obligations under
Sections 3.2 and 4.1).
Section 2.3 Reduction of Offering.
(a) Demand Registration. The Company may include in a Demand Registration
Shares for the account of the Company and Registrable Securities for the
account of the Piggy-Back Holders and Shares for the account
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of other holders thereof exercising contractual piggyback rights, on the same
terms and conditions as the Registrable Securities to be included therein for
the account of the Demanding Holders; provided, however, that (i) if the
managing Underwriter or Underwriters of any underwritten offering described in
Section 2.1 have informed the Company in writing that it is their opinion that
the total number of Shares which the Demanding Holders, the Company, any
Piggy-Back Holders and any such other holders intend to include in such
offering is such as to materially and adversely affect the success of such
offering, then (x) the number of Shares to be offered for the account of such
other holders shall be reduced (to zero, if necessary), in the case of this
clause (x) pro rata in proportion to the respective number of Shares requested
to be registered and (y) thereafter, if necessary, the number of Shares to be
offered for the account of the Company (if any) shall be reduced (to zero, if
necessary), to the extent necessary to reduce the total number of Shares
requested to be included in such offering to the number of Shares, if any,
recommended by such managing Underwriters (and if the number of Shares to be
offered for the account of each such Person has been reduced to zero, and the
number of Shares requested to be registered by the Demanding Holders and the
Piggy-Back Holders exceeds the number of Shares recommended by such managing
Underwriters, then the number of Shares to be offered for the account of the
Demanding Holders and the Piggy-Back Holders shall be reduced pro rata in
proportion to the respective number of Shares requested to be registered by
the Demanding Holders and the Piggy-Back Holders) and (ii) if the offering is
not underwritten, no other party (other than Piggy-Back Holders and any other
holders exercising contractual piggyback rights not subject to the reduction
contemplated by this clause (ii)), including the Company, shall be permitted
to offer securities under any such Demand Registration unless a majority of
the Shares held by the Demanding Holder or Holders consent to the inclusion of
such shares therein.
(b) Piggy-Back Registration.
(i) Notwithstanding anything contained herein, if the managing
Underwriter or Underwriters of any underwritten offering described in
Section 2.2 have informed, in writing, the Piggy-Back Holders that it is
their opinion that the total number of Shares that the Company and Holders
of Registrable Securities and any other Persons desiring to participate in
such registration intend to include in such offering is such as to
materially and adversely affect the success of such offering, then the
number of Shares to be offered for the account of the Piggy-Back Holders
and all such other Persons (other than the Company) participating in such
registration shall be reduced (to zero, if necessary) or limited pro rata
in proportion to the respective number of Shares requested to be registered
to the extent necessary to reduce the total number of Shares requested to
be included in such offering to the number of Shares, if any, recommended
by such managing Underwriters; provided, however, that (A) if such offering
is effected for the account of Demanding Holders pursuant to Section 2.1,
then the number of Shares to be offered for the account of each Person
shall be reduced in accordance with Section 2.3(a), and (B) if such
offering is effected for the account of any other securityholder of the
Company, pursuant to the demand registration rights of such securityholder,
then (x) the number of Shares to be offered for the account of the Piggy-
Back Holders and any other holders that have requested to include Shares in
such registration (but not such securityholders who have exercised their
demand registration rights) shall be reduced (to zero, if necessary), in
the case of this clause (x) pro rata in proportion to the respective number
of Shares requested to be registered and (y) thereafter, if necessary, the
number of Shares to be offered for the account of the Company (if any)
shall be reduced (to zero, if necessary), to the extent necessary to reduce
the total number of Shares requested to be included in such offering to the
number of Shares, if any, recommended by such managing Underwriters.
(ii) If the managing Underwriter or Underwriters of any underwritten
offering described in Section 2.2 notify the Piggy-Back Holders or other
Persons requesting inclusion in such offering that the kind of securities
that the Piggy-Back Holders, the Company and any other Persons desiring to
participate in such registration intend to include in such offering is such
as to materially and adversely affect the success of such offering, then
the Shares to be included in such offering by such Piggy-Back Holders shall
be reduced as described in clause (i) above or if such reduction would, in
the judgment of the managing Underwriter or Underwriters, be insufficient
to substantially eliminate the adverse effect that inclusion of the Shares
requested to be included would have on such offering, such Shares will be
excluded from such offering.
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ARTICLE III
REGISTRATION PROCEDURES
Section 3.1 Filings; Information. Whenever the Company is required to effect
or cause the registration of Registrable Securities pursuant to Section 2.1,
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 as quickly as practicable, and in connection with any such
request:
(a) The Company will as expeditiously as possible prepare and file with the
Commission a Registration Statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which
form shall be available for the sale of the Registrable Securities to be
registered thereunder in accordance with the intended method of distribution
thereof, and use its best efforts to cause such filed Registration Statement
to become and remain effective for a period of not less than 200 days, or
[twelve months] with respect to a "shelf" registration (or such shorter period
as is required to complete the distribution of the shares); provided that the
Company may postpone the filing of a Registration Statement for a period of
not more than 90 days from the date of receipt of the request in accordance
with Section 2.1 if the Company reasonably determines that such a filing would
adversely affect any proposed financing or acquisition by the Company and
furnishes to the Demanding Holder a certificate signed by an executive officer
of the Company to such effect; provided that the Company shall only be
entitled to postpone any such filing one time in any twelve-month period. If
the Company postpones the filing of a Registration Statement, it shall
promptly notify the Purchasers in writing when the events or circumstances
permitting such postponement have ended.
(b) The Company will as expeditiously as possible prepare and file with the
Commission such amendments and supplements to such Registration Statement and
the Prospectus used in connection therewith as may be necessary to keep such
Registration Statement continuously effective (subject to the penultimate
paragraph of this Section 3.1) for a period of not less than 200 days, or
[twelve months] with respect to a "shelf" registration, or such shorter period
which will terminate when all securities covered by such Registration
Statement have been sold (but not before the expiration of the 90-day period
referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable) 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
each Selling Holder thereof set forth in such Registration Statement.
(c) The Company will, prior to filing a Registration Statement or prospectus
or any amendment or supplement thereto (including documents that would be
incorporated or deemed to be incorporated therein by reference), furnish to
each Selling Holder, counsel representing such Selling Holders, and each
Underwriter, if any, of the Registrable Securities covered by such
Registration Statement copies of such Registration Statement as proposed to be
filed, together with exhibits thereto, which documents will be subject to
review and comment by the foregoing within five days after delivery, and
thereafter furnish to such Selling Holder, counsel and Underwriter, if any,
for their review and comment such number of copies of such Registration
Statement, each amendment and supplement thereto (in each case including all
exhibits thereto and documents incorporated by reference therein), the
Prospectus included in such Registration Statement and such other documents or
information as such Selling Holder, counsel or Underwriter may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Selling Holder.
(d) After the filing of the Registration Statement, the Company will
promptly notify each Selling Holder of Registrable Securities covered by such
Registration Statement, and (if requested by any such Selling Holder) confirm
such notice in writing, (i) when a Prospectus or any supplement thereto or
post-effective amendment has been filed and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the Commission or any other Federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose,
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(iv) if at any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Securities the
representations and warranties of the Company contained in any agreement
contemplated by Section 3.1(h) (including any underwriting agreement) cease to
be true and correct in all material respects, (v) of the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, (vi) of the happening of any event which
makes any statement made in such Registration Statement or related Prospectus
or any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or which requires the making of any changes in
a Registration Statement, Prospectus or documents incorporated therein by
reference so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain
any untrue statement of a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (vii) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement
would be necessary.
(e) The Company will use its best efforts to (i) register or qualify the
Registrable Securities under such other securities or blue sky laws of such
jurisdictions in the United States as any Selling Holder reasonably (in light
of such Selling Holder's intended plan of distribution) requests, and (ii)
cause such Registrable Securities to be registered with or approved by such
other governmental agencies or authorities in the United States as may be
necessary by virtue of the business and operations of the Company and do any
and all other acts and things that may be reasonably necessary or advisable to
enable such Selling Holder to consummate the disposition of the Registrable
Securities owned by such Selling Holder; provided that the Company will not be
required to (A) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (e), (B)
subject itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.
(f) The Company will take all reasonable actions required to prevent the
entry, or obtain the withdrawal, of any order suspending the effectiveness of
a Registration Statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any Registrable Securities
for sale in any jurisdiction, at the earliest moment.
(g) Upon the occurrence of any event contemplated by paragraph 3.1(d)(vi) or
3.1(d)(vii) above, the Company will (i) prepare a supplement or post-effective
amendment to such Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and
(ii) promptly make available to each Selling Holder any such supplement or
amendment.
(h) The Company will enter into customary agreements (including, if
applicable, an underwriting agreement in customary form and which is
reasonably satisfactory to the Company) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities (the Selling Holders may, at their option, require that
any or all of the representations, warranties and covenants of the Company to
or for the benefit of such Underwriters also be made to and for the benefit of
such Selling Holders).
(i) The Company will make available to each Selling Holder (and will deliver
to their counsel) and each Underwriter, if any, subject to restrictions
imposed by the United States federal government or any agency or
instrumentality thereof, copies of all correspondence between the Commission
and the Company, its counsel or auditors and will also make available for
inspection by any Selling Holder, any Underwriter participating in any
disposition pursuant to such Registration Statement and any attorney,
accountant or other professional retained by any such Selling Holder or
Underwriter, all financial and other records, pertinent corporate documents
and
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properties of the Company (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence responsibility, and
cause the Company's officers and employees to supply all information
reasonably requested by any Inspectors in connection with such Registration
Statement. Each Selling Holder agrees that information obtained by it solely
as a result of such inspections (not including any information obtained from a
third party who, insofar as is known to the Selling Holder after reasonable
inquiry, is not prohibited from providing such information by a contractual,
legal or fiduciary obligation to the Company) shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Company or its affiliates unless and until such information
is made generally available to the public. Each Selling Holder further agrees
that it will, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to the Company and allow the
Company, at its expense, to undertake appropriate action to prevent disclosure
of the Records deemed confidential.
(j) The Company will furnish to each Selling Holder and to each Underwriter,
if any, a signed counterpart, addressed to such Selling Holder or Underwriter,
of (i) an opinion or opinions of counsel to the Company, and (ii) a comfort
letter or comfort letters from the Company's independent public accountants,
each in customary form and covering such matters of the type customarily
covered by opinions or comfort letters, as the case may be, as the Selling
Holders or the managing Underwriter therefor reasonably requests.
(k) The Company will otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
(l) The Company will use its best efforts (a) to cause the Registrable
Securities to be listed on a national securities exchange (if such shares are
not already so listed) and on each additional national securities exchange on
which similar securities issued by the Company are then listed (if any), if
the listing of such Registrable Securities is then permitted under the rules
of such exchange or (b) 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 of the Commission or,
failing that, to secure NASDAQ 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, Inc. (the
"NASD").
(m) The Company will appoint a transfer agent and registrar for all such
Registrable Securities covered by such registration statement not later than
the effective date of such Registration Statement.
(n) Prior to the effective date of the first Demand Registration or the
first Piggy-Back Registration, whichever shall occur first, (i) provide the
transfer agent with printed certificates for the Registrable Securities in a
form eligible for deposit with The Depository Trust Company, and (ii) provide
a CUSIP number for the Registrable Securities.
(o) In connection with an underwritten offering, the Company will
participate, to the extent reasonably requested by the managing Underwriter
for the offering or the Selling Holders, in customary efforts to sell the
securities under the offering, including, without limitation, participating in
"road shows."
The Company may require each Selling Holder to promptly furnish in writing
to the Company such information regarding the distribution of the Registrable
Securities by such Selling Holder as the Company may from time to time
reasonably request and such other information as may be legally required in
connection with such registration including, without limitation, all such
information as may be requested by the Commission or the NASD. The Company may
exclude from such registration any Holder who fails to provide such
information.
Each Selling Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Sections 3.1(d)(iii),
(v), (vi) and (vii) hereof, such Selling Holder will forthwith
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discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Selling Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated
by Section 3.1(g) hereof, and, if so directed by the Company, such Selling
Holder will deliver to the Company all copies, other than permanent file
copies, then in such Selling Holder's possession of the most recent Prospectus
covering such Registrable Securities at the time of receipt of such notice. In
the event the Company shall give such notice, the Company shall extend the
period during which such Registration Statement shall be maintained effective
(including the period referred to in Section 3.1(a) hereof) by the number of
days during the period from and including the date of the giving of notice
pursuant to Section 3.1(d)(iii), (v), (vi) or (vii) hereof to the date when
the Company shall make available to the Selling Holders a Prospectus
supplemented or amended to conform with the requirements of Section 3.1(g)
hereof.
In connection with any registration of Registrable Securities pursuant to
Section 2.2, the Company will take the actions contemplated by paragraphs (c),
(d), (e), (i), (j), (k), (1) and (n) above.
Section 3.2 Registration Expenses. In connection with the Demand
Registrations pursuant to Section 2.1 hereof, and any Registration Statement
filed pursuant to Section 2.2 hereof, the Company shall pay the following
registration expenses incurred in connection with the registration hereunder
(the "Registration Expenses"): (i) all registration and filing fees, (ii) fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses, (iv)
the Company's internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties) and all fees and expenses incident to the performance of or compliance
with this Agreement by the Company, (v) the fees and expenses incurred in
connection with the listing of the Registrable Securities, (vi) reasonable
fees and disbursements of counsel for the Company and customary fees and
expenses for independent certified public accountants retained by the Company
(including the expenses of any comfort letters or costs associated with the
delivery by independent certified public accountants of a comfort letter or
comfort letters requested pursuant to Section 3.10) hereof), (vii) the
reasonable fees and expenses of any special experts retained by the Company in
connection with such registration, and (viii) reasonable fees and expenses of
one firm of counsel for the Holders (together with necessary local counsel
fees and expenses), which counsel shall be chosen by the Demanding Holders or,
if none, by the Holders of a majority of the Registrable Securities being
included in such Registration Statement. The Company shall have no obligation
to pay any underwriting fees, discounts or commissions attributable to the
sale of Registrable Securities.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
Section 4.1 Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Selling Holder, its partners, officers, directors,
employees and agents, and each Person, if any, who controls such Selling
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, together with the partners, officers, directors, employees
and agents of such controlling Person (collectively, the "Controlling
Persons"), from and against any loss, claim, damage, liability, reasonable
attorneys' fee, cost or expense and costs and expenses of investigating and
defending any such claim (collectively, the "Damages"), joint or several, and
any action in respect thereof to which such Selling Holder, its partners,
officers, directors, employees and agents, and any such Controlling Person may
become subject under the Securities Act or otherwise, insofar as such Damages
(or proceedings in respect thereof) arise out of, or are based upon, any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus relating to the Registrable
Securities or any preliminary Prospectus, or arises out of, or are based upon,
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as the same are based upon information furnished in writing to
the Company by a Selling Holder or Underwriter expressly for use therein, and
shall reimburse each Selling Holder, its partners, officers, directors,
employees and agents, and each such Controlling Person for any legal
8
and other expenses reasonably incurred by that Selling Holder, its partners,
officers, directors, employees and agents, or any such Controlling Person in
investigating or defending or preparing to defend against any such Damages or
proceedings; provided, however, that the Company shall not be liable to any
Selling Holder to the extent that (a) any such Damages arise out of or are
based upon an untrue statement or omission made in any preliminary prospectus
if (i) such Holder failed to send or deliver a copy of the final Prospectus
with or prior to the delivery of written confirmation of the sale by such
Selling Holder to the Person asserting the claim from which such Damages
arise, and (ii) the final Prospectus would have corrected such untrue
statement or such omission; or (b) any such Damages arise out of or are based
upon an untrue statement or omission in any Prospectus if (x) such untrue
statement or omission is corrected in an amendment or supplement to such
Prospectus, and (y) having previously been furnished by or on behalf of the
Company with copies of such Prospectus as so amended or supplemented, such
Holder thereafter fails to deliver such Prospectus as so amended or
supplemented prior to or concurrently with the sale of a Registrable Security
to the Person asserting the claim from which such Damages arise. The Company
also agrees to indemnify any Underwriters of the Registrable Securities, their
officers and directors and each Person who controls such Underwriters on
substantially the same basis as that of the indemnification of the Selling
Holders provided in this Section 4.1.
Section 4.2 Indemnification by Holders of Registrable Securities. Each
Selling Holder agrees, severally but not jointly, to indemnify and hold
harmless the Company, its officers, directors, employees and agents and each
Person, if any, who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, together with the
partners, officers, directors, employees and agents of such controlling
Person, to the same extent as the foregoing indemnity from the Company to such
Selling Holder, but only with reference to information related to such Selling
Holder, or its plan of distribution, furnished in writing by such Selling
Holder or on such Selling Holder's behalf expressly for use in any
Registration Statement or Prospectus relating to the Registrable Securities,
or any amendment or supplement thereto, or any preliminary Prospectus. In case
any action or proceeding shall be brought against the Company or its officers,
directors, employees or agents or any such controlling Person or its partners,
officers, directors, employees or agents, in respect of which indemnity may be
sought against such Selling Holder, such Selling Holder shall have the rights
and duties given to the Company, and the Company or its officers, directors,
employees or agents, controlling Person, or its partners, officers, directors,
employees or agents, shall have the rights and duties given to such Selling
Holder, under Section 4.1. Each Selling Holder also agrees to indemnify and
hold harmless each other Selling Holder and any Underwriters of the
Registrable Securities, and their respective officers and directors and each
Person who controls each such other Selling Holder or Underwriter on
substantially the same basis as that of the indemnification of the Company
provided in this Section 4.2. The Company shall be entitled to receive
indemnities from Underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the
same extent as provided above, with respect to information so furnished in
writing by such Persons specifically for inclusion in any Prospectus or
Registration Statement. In no event shall the liability of any Selling Holder
be greater in amount than the dollar amount of the proceeds (net of payment of
all expenses) received by such Selling Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
Section 4.3 Conduct of Indemnification Proceedings. Promptly after receipt
by any Person in respect of which indemnity may be sought pursuant to Section
4.1 or 4.2 (an "Indemnified Party") of notice of any claim or the commencement
of any action, the Indemnified Party shall, if a claim in respect thereof is
to be made against the Person against whom such indemnity may be sought (an
"Indemnifying Party") notify the Indemnifying Party in writing of the claim or
the commencement of such action, provided that the failure to notify the
Indemnifying Party shall not relieve it from any liability except to the
extent of any material prejudice resulting therefrom. If any such claim or
action shall be brought against an Indemnified Party, and it shall notify the
Indemnifying Party thereof, the Indemnifying Party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified Indemnifying Party, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party; provided, that the
Indemnifying Party acknowledges, in a writing in form and substance reasonably
satisfactory to such Indemnified Party, such Indemnifying Party's liability
for all Damages of such Indemnified Party to the extent specified in, and in
accordance with, this
9
Article IV. After notice from the Indemnifying Party to the Indemnified Party
of its election to assume the defense of such claim or action, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal
or other expenses subsequently incurred by the Indemnified Party in connection
with the defense thereof other than reasonable costs of investigation;
provided that the Indemnified Party shall have the right to employ separate
counsel to represent the Indemnified Party and its controlling Persons who may
be subject to liability arising out of any claim in respect of which indemnity
may be sought by the Indemnified Party against the Indemnifying Party, but the
fees and expenses of such counsel shall be for the account of such Indemnified
Party unless (i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or (ii) in the reasonable
judgment of such Indemnified Party, representation of both parties by the same
counsel would be inappropriate due to actual or potential conflicts of
interest between them, it being understood, however, that the Indemnifying
Party shall not, in connection with any one such claim or action or separate
but substantially similar or related claims or actions in the same
jurisdiction arising out of the same general allegations or claims, be liable
for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all Indemnified
Parties, or for fees and expenses that are not reasonable. No Indemnifying
Party shall, without the prior written consent of the Indemnified Party,
effect any settlement of any claim or pending or threatened proceeding in
respect of which the Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party
from all liability arising out of such claim or proceeding. Whether or not the
defense of any claim or action is assumed by the Indemnifying Party, such
Indemnifying Party will not be subject to any liability for any settlement
made without its consent, which consent will not be unreasonably withheld.
Section 4.4 Contribution. If the indemnification provided for in this
Article IV is unavailable to the Indemnified Parties in respect of any Damages
referred to herein, then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Damages (i) as between the Company and
the Selling Holders on the one hand and the Underwriters on the other, in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Holders on the one hand and the Underwriters on the
other from the offering of the Registrable Securities, or if such allocation
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits but also the relative fault of the
Company and the Selling Holders on the one band and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Damages, as well as any other relevant equitable considerations, and (ii) as
between the Company on the one hand and each Selling Holder on the other, in
such proportion as is appropriate to reflect the relative fault of the Company
and of each Selling Holder in connection with such statements or omissions, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Holders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering (net of underwriting discounts and
Commissions but before deducting expenses) received by the Company and the
Selling Holders bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page or underwriting section of the prospectus. The relative fault of
the Company and the Selling Holders on the one hand and of the Underwriters on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company and the Selling Holders or by the Underwriters. The relative fault
of the Company on the one hand and of each Selling Holder on the other shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an
10
Indemnified Party as a result of the Damages referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 4.4, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no Selling Holder shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities of such Selling Holder were offered to the public (less
underwriting discounts and commissions) exceeds the amount of any damages
which such Selling Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation. Each Selling Holder's
obligation to contribute pursuant to this Section 4.4 is several and not
joint.
The indemnity, contribution and expense reimbursement obligations contained
in this Article IV are in addition to any liability any Indemnifying Party may
otherwise have to an Indemnified Party or otherwise. The provisions of this
Article IV shall survive, notwithstanding any transfer of the Registrable
Securities by any Holder or any termination of this Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1 Participation in Underwritten Registrations. No Person may
participate in any underwritten registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements, and (b) completes and executes all questionnaires,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements and these registration
rights; provided that (i) no Selling Holder shall be required to make any
representations or warranties except those which relate solely to such Holder
and its intended method of distribution, and (ii) the liability of each such
Holder to any Underwriter under such underwriting agreement will be limited to
liability arising from misstatements or omissions regarding such Holder and
its intended method of distribution and any such liability shall not exceed an
amount equal to the amount of net proceeds such Holder derives from such
registration; provided, however, that in an offering by the Company in which
any Holder requests to be included in a Piggy-Back Registration, the Company
shall use its best efforts to arrange the terms of the offering such that the
provisions set forth in clauses (i) and (ii) of this Section 5.1 are true;
provided further, that if the Company fails in its best efforts to so arrange
the terms, the Holder may withdraw all or any part of its Registrable
Securities from the Piggy-Back Registration and the Company shall reimburse
such Holder for all reasonable out-of-pocket expenses (including counsel fees
and expenses) incurred prior to such withdrawal.
Section 5.2 Rules 144 and 144A. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange
Act and that it will take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable Holders to
sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 or Rule 144A
under the Securities Act, as such Rules may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the Commission. Upon
the request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
Section 5.3 Holdback Agreements.
(a) Restrictions on Public Sale by Holder of Registrable Securities. Each
Holder agrees not to effect any public sale or distribution of the issue being
registered or of a similar security of the Company, or any securities
11
convertible into or exchangeable or exercisable for such securities, including
a sale pursuant to Rule 144 or Rule 144A under the Securities Act, during the
14 days prior to, and during the 90-day period beginning on, the effective
date of any registration statement filed by the Company (except as part of
such registration), in the case of an underwritten public offering, if, and to
the extent, requested by the managing underwriter or underwriters.
The foregoing provisions shall not apply to any Holder that is prevented by
applicable statute or regulation from entering into any such agreement;
provided, however, that any such Holder shall undertake not to effect any
public sale or distribution of the class of securities covered by such
registration statement (except as part of such underwritten offering) during
such period unless it has provided 60 days' prior written notice of such sale
or distribution to the managing underwriter.
(b) Restrictions on Sale by the Company and Others. The Company agrees and
shall cause its Affiliates to agree (i) not to effect any public sale or
distribution of any securities similar to those being registered in accordance
with Section 2.1 hereof, or any securities convertible into or exchangeable or
exercisable for such securities, during the 14 days prior to, and during the
90-day period beginning on, the effective date of any Registration Statement
(except as part of such Registration Statement), in the case of an
underwritten offering, if, and to the extent, reasonably requested by the
managing Underwriter or Underwriters, and (ii) to use its best efforts to
ensure that any agreement entered into after the date hereof pursuant to which
the Company issues or agrees to issue any privately placed securities (other
than to officers or employees) shall contain a provision under which holders
of such securities agree not to effect any sale or distribution of any such
securities during the periods described in (i) above, in each case including a
sale pursuant to Rule 144 or Rule 144A under the Securities Act (except as
part of any such registration, if permitted); provided, however, that the
provisions of this paragraph (b) shall not prevent (x) the conversion or
exchange of any securities pursuant to their terms into or for other
securities or (y) the issuance of any securities to employees of the Company
or pursuant to any employee plan.
Section 5.4 Amendment and Modification. Any provision of this Agreement may
be waived, provided that such waiver is set forth in a writing executed by the
party against whom the enforcement of such waiver is sought. This Agreement
may not be amended, modified or supplemented other than by a written
instrument signed by (a) the Company, and (b) the holders of a majority of the
Registrable Securities held by the Holders; provided, however, that so long as
the Apollo Holders beneficially owns at least 25% of the Registrable
Securities held by the Apollo Holders on the Effective Date, without the
consent of the Apollo Holders, no amendment or modification which adversely
affects the rights or duties of the Apollo Holders hereunder may be effected;
and provided further, that no amendment or modification that would have a
material adverse effect on the rights or obligations of any Holder without
similarly and proportionately (based on the respective number of Shares then
owned by the Holders hereunder) affecting the rights and obligations of all
Holders hereunder, or that would otherwise unfairly discriminate against any
Holder, shall be effective as to such Holder unless such Holder shall have
consented in writing thereto. No course of dealing between or among any
Persons having any interest in this Agreement will be deemed effective to
modify, amend or discharge any part of this Agreement or any rights or
obligations of any Person under or by reason of this Agreement.
Section 5.5 Successors and Assigns: Entire Agreement.
(a) This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns and executors, administrators and heirs; provided, that (i) except
as otherwise specifically permitted pursuant to this Agreement, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by the Company without the prior written consent of each of the
Holders and (ii) an Apollo Holder may assign a right to request a Demand
Registration in connection with a transfer of Registrable Securities held by
it.
(b) This Agreement sets forth the entire agreement and understanding between
the parties as to the subject matter hereof and merges and supersedes all
prior discussions, agreements and understandings of any and every nature among
them.
Section 5.6 Separability. In the event that any provision of this Agreement
or the application of any provision hereof is declared to be illegal, invalid
or otherwise unenforceable by a court of competent jurisdiction, the remainder
of this Agreement shall not be affected except to the extent necessary to
delete such illegal, invalid
12
or unenforceable provision unless that provision held invalid shall
substantially impair the benefits of the remaining portions of this Agreement.
Section 5.7 Notices. All notices, demands, requests, consents or approvals
(collectively, "Notices") required or permitted to be given hereunder or which
are given with respect to this Agreement shall be in writing and shall be
personally delivered or delivered by a reputable overnight courier service
with charges prepaid, or transmitted by hand delivery, telegram, telex or
facsimile, addressed as set forth below, or such other address as such party
shall have specified most recently by written notice. Notice shall be deemed
given or delivered on the date of service or transmission if personally served
or transmitted by telegram, telex or facsimile. Notice otherwise sent as
provided herein shall be deemed given or delivered on the next business day
following delivery of such notice to a reputable overnight courier service.
To the Company:
Paragon Health Network, Inc.
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 30346___
Attn:
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
To Apollo Holders:
c/o Apollo Advisors II, L.P.
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Sidley & Austin
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
To the other Investors:
To the address specified on the signature page executed by such other
Investor.
Section 5.8 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal law of the State of New York, without giving
effect to principles of conflicts of law.
Section 5.9 Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall
they affect their meaning, construction or effect.
Section 5.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original instrument and
all of which together shall constitute one and the same instrument.
13
Section 5.11 Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out
the provisions and purposes of this Agreement and the transactions
contemplated hereby.
Section 5.12 Termination. Unless sooner terminated in accordance with its
terms or as otherwise herein provided, this Agreement shall terminate upon the
earlier to occur of (i) the mutual agreement by the parties hereto, (ii) with
respect to any Holder, such Holder ceasing to own any Registrable Securities
or such Holder waiving, rescinding and terminating all of such Holder's rights
under this Agreement or (iii) the fifteenth anniversary of the Effective Date.
Section 5.13 Remedies. In the event of a breach or a threatened breach by
any party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach will be entitled to specific
performance of its rights under this Agreement or to injunctive relief, in
addition to being entitled to exercise all rights provided in this Agreement
and granted by law. The parties agree that the provisions of this Agreement
shall be specifically enforceable, it being agreed by the parties that the
remedy at law, including monetary damages, for breach of any such provision
will be inadequate compensation for any loss and that any defense or objection
in any action for specific performance or injunctive relief that a remedy at
law would be adequate is waived.
Section 5.14 Pronouns. Whenever the context may require, any pronouns used
herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PARAGON HEALTH NETWORK, INC.
By:__________________________________
Name:
Title:
APOLLO HOLDERS
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.
Its General Partner
By: Apollo Capital Management II,
Inc.
Its General Partner
By:__________________________________
Name:
Title:
14
APOLLO UK PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
Its General Partner
By: Apollo Capital Management II,
Inc.
Its General Partner
By:__________________________________
Name:
Title:
APOLLO OVERSEAS PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
Its General Partner
By: Apollo Capital Management II,
Inc.
Its General Partner
By:__________________________________
Name:
Title:
OTHER STOCKHOLDERS
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
Its General Partner
By:
----------------------------------
Name:
Title:
Shares of Common Stock
Address for Notice:
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
15
HEALTHCARE EQUITY PARTNERS, L.P.
By: Beecken, Xxxxx & Company, L.L.C.
Its General Partner
By:
----------------------------------
Name:
Title:
Shares of Common Stock
Address for Notice:
x/x Xxxxxxx, Xxxxx & Xxxxxxx, X.X.X.
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
HEALTHCARE EQUITY QP PARTNERS, L.P.
By: Beecken, Xxxxx & Company, L.L.C.
Its General Partner
By:
----------------------------------
Name:
Title:
Shares of Common Stock
Address for Notice:
x/x Xxxxxxx, Xxxxx & Xxxxxxx,
X.X.X.
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
16
KEY CAPITAL CORPORATION
By:
----------------------------------
Xxxxxxx X. Xxxxxx
Vice President
Shares of Company Common
Stock
Address:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
KEY EQUITY PARTNERS 97
By:
----------------------------------
Xxxxxxx X. Xxxxxx
Its: General Partner
Shares of Company Common
Stock
Address:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
17
