EXHIBIT 10.8
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") dated as of the 31st day
of December, 1995, is made by and between WelCare International, Inc., a Georgia
corporation (the "Company"), and the holders of the capital stock of the Company
listed in Schedule I, attached hereto (the "Shareholders").
W I T N E S S E T H:
WHEREAS, the Shareholders are the owners of the shares of capital stock of
the Company listed on Schedule I hereto (the "Capital Shares"); and
WHEREAS, various of those Shareholders are the beneficiaries of
registration rights under that certain Registration Rights Agreement, dated as
of December 29, 1992, as amended, by and among the Company and the other parties
thereto, and that certain Registration Rights Agreement, dated November 1, 1993,
as amended, by and among Transitional Health Services, Inc. ("THS") and the
other parties thereto;
WHEREAS, it is a condition to the consummation of the transactions
contemplated by that certain Agreement and Plan of Merger, dated December 31,
1995, by and among the Company, WelCare Transitional Acquirors, Inc., and THS
(the "Merger Agreement"), that this Agreement be executed by the parties hereto,
and the parties are willing to execute this Agreement and to be bound by the
provisions hereof.
NOW, THEREFORE, in consideration of the mutual agreements and promises
contained herein, in the Merger Agreement and in the other agreements
contemplated thereby, and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Shareholders and the Company,
each with the other, do hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
"Capital Shares" means the shares of capital stock of the Company listed
on Schedule I hereto.
"Common Stock" means the common stock, $0.01 par value per share, of the
Company, which is authorized by the Company's Articles of Incorporation, as
amended, on the date hereof.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the securities Act.
"Person" means any natural person or any corporation, partnership, trust
or other legal entity.
1
"Primary Offering" means an initial Underwritten Public Offering by the
Company pursuant to which the Company receives gross proceeds of not less than
$15,000,000.
"Registrable Securities" means the Common Stock held by the Shareholders,
including shares issued or issuable at any time or from time to time upon
conversion of the Series A Preferred Stock, $11.0011 par value per share, the
Series B Preferred Stock, $8.7377 par value per share, or the Special Voting
Common Stock, no par value per share, of the Company, but not including any
shares held in escrow pursuant to the terms of the Escrow Agreement, as defined
in the Merger Agreement. The term "Registrable Securities" does not include
shares of capital stock of the Company which have been registered, as defined
below, and sold pursuant to such registration.
The terms "register," "registered," and "registration" refer to a
registration effected by preparing the filing of a registration statement in
compliance with the Securities Act, and the declaration or order by the
Commission of the effectiveness of such registration statement.
"Secondary Offering" means an Underwritten Public Offering by the Company,
but not including a Primary Offering or an offering effected pursuant to Section
2.1 or 2.3.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities.
"Shareholders" means the owners of the Capital Shares, and each subsequent
holder of such shares who acquires the shares directly from a Shareholder or a
partner, shareholder or affiliate thereof, and who gives the Company notice of
such holder's election to enter into this Agreement as a successor and agrees to
be bound hereby.
"Underwritten Public Offering" means a public offering of Common Stock for
cash which is offered and sold in a registered transaction on a firm commitment
underwritten basis through one or more underwriters, all pursuant to an
underwriting agreement between the Company and any selling shareholders on the
one hand and such underwriters on the other hand.
ARTICLE II
REGISTRATION RIGHTS
2.1 Demand Registration Rights.
(a) Company's Obligation. Upon notice from the holders of at least a
majority of the outstanding shares of Registrable Securities requesting
registration of a portion of the Registrable Securities of such holders, the
Company agrees to effect up to two (2) demand registrations on behalf of the
Shareholders as follows, including to:
2
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Shareholders; and
(ii) use its diligent good faith efforts to effect, as soon as
practicable, all such registrations, qualifications and compliances (including,
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualifications under the applicable blue sky or other
state securities laws and appropriate compliance with exemptive regulations
issued under the Securities Act and any other governmental requirements or
regulations) as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such requesting Shareholders'
Registrable Securities as is specified in such request, together with all or
such portion of the Registrable Securities of any other Shareholders joining in
such request as is specified in a written request received by the Company within
ten (10) business days after such written notice is given; provided, that the
Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section 2.1 in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process or to register as a dealer or to cause any
officer or employee of the Company to register as a salesman in effecting such
registration, qualification or compliance. Subject to the foregoing, the Company
shall use its reasonable efforts to prepare and file a registration statement
covering the Registrable Securities so requested to be registered within ninety
(90) days after such request is received.
(b) Underwriting. The requesting Shareholders shall include in their
request made pursuant to Section 2.1 the name of the managing underwriter or
underwriters, if any, that the majority in interest of such requesting
Shareholders would propose to employ in connection with the public offering
proposed to be made pursuant to the registration requested; provided that if the
Board of Directors reasonably objects to any managing underwriter or
underwriters proposed by the requesting Shareholders, the requesting
Shareholders shall propose another managing underwriter or underwriters that is
or are reasonably acceptable to the Board of Directors. The Company shall
include in the written notice to be given by the Company to the other
Shareholders pursuant to Section 2.1 the name or names of such underwriter or
underwriters to be employed. If the sale proposed by the requesting Shareholders
is to be effected pursuant to an Underwritten Public Offering, the right of any
Shareholder to registration pursuant to Section 2.1 shall be conditioned upon
such Shareholder's participation in such underwriting and the inclusion of such
Shareholder's Registrable Securities in the underwriting to the extent requested
(unless otherwise mutually agreed by a majority in interest of the requesting
Shareholders and such Shareholder) as provided herein. The Company shall
(together with all Shareholders proposing to distribute their securities through
such underwriting) use its reasonable efforts to enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting in the manner set forth above. The Company will take such
reasonable actions as are necessary to comply with the terms and obligations of
such underwriting agreement and will furnish such underwriters and their
respective representatives full access to all information reasonably requested
in connection with their "due diligence" review of the Company and its
operations. Notwithstanding any other provisions of Section 2.1, if, in
connection with an Underwritten Public Offering, the managing underwriter
advises the Company or the requesting Shareholders in writing that marketing
factors require a limitation of the number of shares to be underwritten, then
the requesting Shareholders shall so advise the Company (or vice versa) and all
Shareholders whose shares would otherwise be registered and underwritten
pursuant hereto, and the number of shares of Registrable Securities that may
3
be included in the registration and underwriting shall be allocated among all
Shareholders in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities that were proposed to be sold by such Shareholders. No
Registrable Securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration. If
any Shareholder disapproves of the terms of an Underwritten Public Offering, he
may elect to withdraw therefrom by written notice to the Company, the managing
underwriter and the requesting Shareholders. The Registrable Securities so
withdrawn shall also be withdrawn from registration; provided, however, that, if
by the withdrawal of such Registrable Securities a greater number of Registrable
Securities held by other Shareholders may be included in such Underwritten
Public Offering (subject to any limitation imposed by the underwriters), then
the requesting Shareholders shall offer to all Shareholders who have included
Registrable Securities in the registration the right to include additional
shares in the same proportion used in effecting the limitation referred to above
in this Section 2.1(c).
(c) Postponement of Registration on Request. The Company shall be
entitled to postpone for a reasonable period of time but not exceeding
one-hundred-twenty (120) days the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to this Section 2.1 if the
Company determines, in good faith and in the exercise of its reasonable
judgment, that such action would interfere with any material financing,
acquisition, corporate reorganization or other transaction involving the
Company. If the Company shall so postpone the filing of a registration
statement, the holders of more than 50% of the Registrable Securities that have
requested the registration of such shares under Section 2.1, shall have the
right to withdraw such request for registration by giving written notice to the
Company within thirty (30) days after receipt of notice from the Company of such
postponement. In the event of such withdrawal, such request shall not be counted
for purposes of Section 2.1 hereof.
(d) Additional Shares to be Registered. The Company shall be
entitled to include in any registration statement referred to in this Section
2.1, for sale in accordance with the method of disposition specified by the
requesting Shareholders, shares of Common Stock to be sold by the Company for
its own account, or other shareholders for their own account, except as and to
the extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an Underwritten Public Offering), such inclusion would
result in more than 33% of the Registrable Securities proposed to be sold from
being excluded from the offering or would materially adversely affect the
marketing of such Registrable Securities to be sold.
(e) Exceptions to Demand Registration Rights. Anything in this
Section 2.1 to the contrary notwithstanding (i) the Company shall not be
required to register Registrable Securities pursuant to this Section 2.1 unless
the aggregate estimated public offering price of all shares of Registrable
Securities, including, without limitation, any for the account of the Company or
any existing shareholders of the Company (based upon the highest closing price
or bid price, as the case may be, during the thirty (30) day period preceding
such request for registration in the principal trading market for the
Registrable Securities, or, if there shall be no active trading market for the
Registrable Securities, based upon the proposed public offering price estimated
in good faith by the Company), shall be $15,000,000 or more; and (ii) the
Company shall not be required to file a registration statement requested
pursuant to this Section 2.1 which would be declared effective after the last
day of a fiscal year of the Company and prior to the date on which the Company's
audited financial statements for such
4
fiscal year are first available, or in a manner which would require the
inclusion of financial statements other than such audited financial statements.
(f) Limitations on Demand Registration Rights. No request for
registration under this Section 2.1 may be made within six (6) months after the
effective date of any other registration statement filed by the Company or
within three (3) months after the completion of the sale of all securities
included in any other registration statement filed by the Company. If a
registration statement requested pursuant to this Section shall not have become
effective within twelve (12) months after the initial filing thereof as a result
of any reason other than (i) a material adverse development in the business or
condition (financial or other) of the Company or (ii) any act or matter within
the control of the Company, or if such registration statement shall be abandoned
or withdrawn at the request of such holder or holders, then, unless the selling
holders of Registrable Securities shall, promptly upon receipt of a request
therefor, supported by an invoice setting forth the expenses in reasonable
detail, reimburse the Company for the aggregate share of the registration
expenses in respect of such registration statement attributable to the selling
holders, the Company shall be deemed to have satisfied its obligation to
register the Registrable Securities pursuant to this Section. Notwithstanding
anything to the contrary contained herein, the only securities that the Company
shall be required to register pursuant to this Agreement shall be Registrable
Securities.
2.2 Piggyback Registration.
(a) Company's Obligation. If at any time or from time to time after
the date hereof, the Company shall determine to register any of its Common Stock
in any Primary Offering or Secondary Offering for its own account, but not
including an offering that is registered on Commission Forms S-4 or S-8 or
another form not available for registering the Registrable Securities for sale
by the Company), then the Company shall:
(i) promptly give to each Shareholder written notice thereof
(which shall include, to the extent then available, a list of the jurisdictions
in which the Company intends to attempt to qualify the offer and sale of such
securities under the applicable blue sky or other state securities laws); and
(ii) use its reasonable efforts to include in such
registration (and any related qualification under blue sky laws or other
compliance), and in any Underwritten Public Offering involved therein, all the
Registrable Securities specified in any written request by any Shareholder
received by the Company within ten (10) business days after such written notice
is given.
(b) Underwriting. The right of any Shareholder to registration
pursuant to Section 2.2 shall be conditioned upon such Shareholder's
participation in the Underwritten Public Offering and the inclusion of such
Shareholder's Registrable Securities in the Underwritten Public Offering to the
extent provided herein. All Shareholders proposing to distribute their
securities through such Underwritten Public Offering (together with the Company
and any other shareholders distributing their securities through such
underwriting) shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such Underwritten Public Offering
by the Company.
5
(c) Termination of Registration by Company. Notwithstanding any
other provision of this Section 2.2, at any time before or after the filing of a
registration statement that is subject to Section 2.2 hereof, the Company may,
in its sole discretion, abandon or terminate such registration without the
consent of any Shareholder.
(d) Registrations. The Company shall not be required to include
Registrable Securities in the securities covered by a registration statement on
any form which limits the amount of securities which may be registered by the
issuer and/or selling security holders if, and to the extent that, such
inclusion would make the use of such form unavailable, so long as no other
shares are to be included in such securities for the account of any person other
than the Company.
(e) Certain Underwriter Limitations. Notwithstanding any other
provisions of this Section 2.2, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the underwriter may limit the Registrable Securities to be
included in any registration and Underwritten Public Offering. In such event,
the underwriter shall so advise all Shareholders whose shares would otherwise be
registered and underwritten pursuant thereto, and the number of shares that may
be included in the registration and Underwritten Public Offering shall be
allocated: (i) first to the Company; then (ii) to the extent that such
securities do not exhaust the number of shares determined by such underwriter,
up to the first 50% of shares to be included in such Public Offering from
selling Shareholders shall be reserved for sale by the Shareholders in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities that were proposed to be sold by such Shareholders; and then (iii) to
the extent that such securities do not exhaust the number of shares determined
by such underwriter, among all remaining shareholders of the Company (other than
the Shareholders) to whom the Company desires to extend registration rights, in
proportion, as nearly as practicable, to the respective amounts of shares of
common stock that are proposed to be sold by such shareholders.
No Registrable Securities excluded from the Underwritten Public
Offering by reason of the managing underwriter's marketing limitation shall be
included in such registration. If any Shareholder disapproves of the terms of
the Underwritten Public Offering, he may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. The Registrable Securities
so withdrawn shall also be withdrawn from registration; provided, however, that
if by the withdrawal of such Registrable Securities a greater number of
Registrable Securities held by other Shareholders may, in the opinion of the
managing underwriter, be included in such registration (subject to any
limitation imposed by the underwriters), then the Company shall offer to all
Shareholders who have included Registrable Securities in the registration the
right to include additional shares in the amount derived from the formula used
in effecting the limitation referred to above in this Section 2.2.
2.3 Form S-3 Demand Registration Rights.
(a) Company's Obligations. Subject to the limitations on Form S-3
demand registration rights contained in this Section 2.3, if the Company shall
receive from any holder or holders of Registrable Securities a written request
or requests that the Company effect a registration on Form S-3 the Company
agrees to effect such registration on behalf of the Shareholders as follows,
including to:
6
(i) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Shareholders; and
(ii) use its diligent good faith efforts to effect, as soon as
practicable, all such registration (including, without limitation, the execution
of an undertaking to file post-effective amendments, appropriate qualifications
under applicable blue sky or other state securities laws and appropriate
compliance with applicable regulations issued under the Securities Act and any
other government requirements or regulations) as may be so requested and as
would permit or facilitate the sale and distribution of all or such portion of
such Shareholder's or Shareholders' Registrable Securities as is specified in
such request, together with all or such portion of the Registrable Securities of
any Shareholder or Shareholders joining in such request as are specified in a
written request received by the Company within ten (10) business days after such
written notice is given; provided, that the Company shall not be obligated to
take any action to effect any such registration, qualification or compliance
pursuant to this Section 2.3 in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process or to
register as a dealer or to cause any officer or employee of the Company to
register as a salesman in effecting such registration, qualification or
compliance. Subject to the foregoing, the Company shall use its reasonable
efforts to prepare and file a registration statement on Form S-3 covering the
Registrable Securities so requested to be registered within ninety (90) days
after such request is received.
(b) Not Deemed Demand Registration. Registrations effected pursuant
to this Section 2.3 shall not be counted as requests for registration effected
pursuant to Section 2.2.
(c) Postponement of Registration on Request. The Company shall be
entitled to postpone for a reasonable period of time but not exceeding
one-hundred-twenty (120) days the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to this Section 2.3 if the
Company determines, in good faith and in the exercise of its reasonable
judgment, that such action would interfere with any material financing,
acquisition, corporate reorganization or other transaction involving the
Company. If the Company shall so postpone the filing of a registration
statement, the holders of more than 50% of the Registrable Securities that have
requested the registration of such shares under this Section 2.3, shall have the
right to withdraw such request for registration by giving written notice to the
Company within thirty (30) days after receipt of notice from the Company of such
postponement.
(d) Exceptions to Form S-3 Demand Registration Rights. Anything in
this Section 2.3 to the contrary notwithstanding (i) the Company shall not be
required to register Registrable Securities pursuant to this Section 2.3 unless
the aggregate estimated public offering price of all shares of Registrable
Securities, including, without limitation, any for the account of the Company or
any existing shareholders of the Company (based upon the highest closing price
or bid price, as the case may be, during the thirty (30) day period preceding
such request for registration in the principal trading market for the
Registrable Securities, or, if there shall be no active trading market for the
Registrable Securities, based upon the proposed public offering price estimated
in good faith by the Company), shall be $5,000,000 or more, (ii) the Company
shall not be required to file a registration statement requested pursuant to
this Section 2.3 which would be declared effective after the last day of a
fiscal year of the Company and prior to the date on which the Company's audited
financial statements for such fiscal year are first available, or in a manner
which would require the inclusion of financial
7
statements other than such audited financial statements, and (iii) the Company
must be entitled to effect a registration statement pursuant to this Section 2.3
on Form S-3.
2.4 Expenses. All expenses of any registrations permitted pursuant to this
Agreement (including, but not limited to, any qualifications under the blue-sky
or other state securities laws, compliance with governmental requirements of
preparing and filing any post-effective amendments required for the lawful
distribution of any securities to the public in connection with registration, of
supplying prospectuses, offering circulars or other documents, and all other
registration and filing fees, printing expenses, fees and disbursements of
independent public accountants of the Company, fees of the Company's counsel,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, and the reasonable fees and
disbursements of a single special counsel retained by a majority in interest of
the Shareholders, but excluding underwriting discounts and selling commissions
applicable to the sale of the Registrable Securities, which are payable by the
Shareholders) shall be paid by the Company. All Selling Expenses in connection
with any registration statement filed pursuant to Article 2 hereof shall be
borne by participating sellers in proportion to the number of shares sold by
each.
2.5 Registration Procedures. In the case of such registration,
qualification or compliance effected by the Company pursuant to this Article II
in which any Shareholder's Registrable Securities are included, the Company
shall, at its expense:
(a) prepare, provide counsel for the selling shareholders reasonable
opportunity to comment on, and file with the Commission a registration statement
with respect to the Registrable Securities, and use its reasonable efforts to
cause such registration statement to become and remain effective for such period
as may be reasonably necessary to effect the sale of the Registrable Securities,
not to exceed nine (9) months;
(b) prepare, provide counsel for the selling shareholders reasonable
opportunity to comment on, and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective for such period
as may be reasonably necessary to effect the sale of such Registrable
Securities, not to exceed nine (9) months;
(c) furnish to the Shareholders participating in such registration
and to the underwriters of Registrable Securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of such
Registrable Securities;
(d) use its diligent good faith efforts to register or qualify the
Registrable Securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as such participating
Shareholders may reasonably request in writing within twenty (20) days following
the original filing of such registration statement; provided, however, that in
the case of an Underwritten Public Offering, the managing underwriter shall (to
the exclusion of the participation of the Shareholders) advise the Company with
respect to blue sky qualification and related matters;
(e) notify counsel for the Shareholders participating in such
registration, promptly after it shall receive notice thereof, of the time when
such registration statement has
8
become effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
(f) notify counsel for such Shareholders promptly of any request by
the Commission for the amending or supplementing of such registration statement
or prospectus or for additional information;
(g) prepare and file with the Commission, promptly upon the request
of any Shareholders, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such Shareholders
(and concurred in by counsel for the Company), is required under the Securities
Act or the rules and regulations thereunder in connection with the distribution
of the Registrable Securities other than an amendment or supplement required
solely as a result of a change by such Shareholder in the method of distribution
of the Registrable Securities;
(h) prepare and promptly file with the Commission and promptly
notify counsel for such Shareholders of the filing of such amendment or
supplement to such registration statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus relating
to such Registrable Securities is required to be delivered under the Securities
Act, any event other than a change in the method of distribution of the
Registrable Securities selected by a Shareholder shall have occurred as the
result of which any such prospectus or any other prospectus as then in effect
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading;
(i) not file any amendment or supplement to such registration
statement or prospectus if, in the opinion of counsel for such Shareholders
(concurred in by counsel for the Company), such amendment or supplement does not
comply in all material respects with the requirements of the Securities Act or
the rules and regulations thereunder, after having been furnished with a copy
substantially in the form thereof at least two (2) business days prior to the
filing thereof; provided, however, that if in the opinion of counsel for the
Company, the filing of such amendment or supplement is reasonably necessary to
protect the Company from any liabilities under any applicable federal or state
law and such filing will not violate applicable law, the Company may make such
filing.
(j) use its reasonable best efforts (if the offering is
underwritten) to furnish, at the request of any seller, on the date that
Registrable Securities are delivered to the underwriters for sale pursuant to
such registration, and subject to the receipt of appropriate representations
from such sellers: (i) an opinion dated such date of counsel representing the
Company for the purposes of such registration, addressed to the underwriters and
to such seller, stating that such registration statement has become effective
under the Securities Act and that (A) to the best knowledge of such counsel, no
stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or contemplated
under the Securities Act, (B) the registration statement, the related
prospectus, and each amendment or supplement thereof, comply as to form in all
material respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder (except that such counsel
need express no opinion as to financial statements, the notes thereto, and the
financial schedules and other financial and statistical data contained therein)
and (C) to such other effects as may
9
reasonably be requested by counsel for the underwriters or by such seller or its
counsel, and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters, stating that
they are independent public accountants within the meaning of the Securities Act
and that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters (including information as
to the period ending no more than five (5) business days prior to the date of
such letter) with respect to the registration in respect of which such letter is
being given as such underwriters or seller may reasonably request; and
(k) make available for inspection by each seller, any underwriter
participating in any distribution pursuant to such registration statement, and
any attorney, accountant or other agent retained by such seller or underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and employees to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement and permit
such seller, attorney, accountant or agent to participate in the preparation of
such registration statement.
2.6 Related Registration Matters. The Company shall use its best efforts
to enter into an underwriting agreement in connection with any registration
subject to the provisions of this Article II hereof in which any Shareholder's
Registrable Securities are included, which agreement shall contain such terms,
provisions and agreements as are customary and appropriate for such
registration. In connection with any Underwritten Public Offering in which any
Shareholder's Registrable Securities are included, to the extent not provided in
the underwriting agreement related to such offering, the Company shall use its
reasonable efforts to:
(a) List the shares of Registrable Securities included in such
offering on any national securities exchange or stock market on which the
Registrable Securities are approved for listing;
(b) engage a bank or other company to act as transfer agent and
registrar for the Registrable Securities, unless the Company has already engaged
a transfer agent or registrar);
(c) cause customary opinions of counsel, comfort letters of
accountants and other appropriate documents to be delivered by representatives
of the Company; and
(d) as soon as practicable after the effective date of the
registration statement, and, in any event, within sixteen (16) months
thereafter, make "generally available to its securities holders" (within the
meaning of Rule 158 under the Securities Act) an earnings statement (which need
not be audited) complying with Section 11(a) of the Securities Act and covering
a period of at least twelve (12) consecutive months beginning after the
effective date of the registration statement.
10
2.7 Indemnification and Contribution.
(a) In the case of each registration effected by the Company
pursuant to this Agreement in which any Shareholder's Registrable Securities are
included, the Company agrees to indemnify and hold harmless such Shareholder,
including its officers and partners, each underwriter of the shares of
Registrable Securities so registered and each person who controls any such
underwriter within the meaning of Section 15 of the Securities Act, against any
and all losses, claims, damages or liabilities to which they or any of them may
become subject under the Securities Act or any other statute or common law,
including any amount paid in settlement of any litigation, commenced or
threatened, if such settlement is effected with the written consent of the
Company, and to reimburse them for any reasonable legal or other reasonable
expenses incurred by them in connection with the investigation of any claims and
defenses of any actions (subject to subsection (c) of this Section 2.7), insofar
as any such losses, claims, damages, liabilities or actions arise out of or are
based upon: any untrue statement or alleged untrue statement of a material fact
contained in the registration statement, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that, notwithstanding the foregoing, the Company may agree to
indemnify each such underwriter and person who so controls such underwriter to
such other extent as the Company and such underwriter shall agree; and provided
further, however, that the indemnification agreement contained in this
subsection (a) shall not (i) apply to such losses, claims, damages, liabilities
or actions arising out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon and in conformity with information furnished
to the Company in writing by a Shareholder or such underwriter claiming rights
of indemnification pursuant to this Section 2.7 for use in connection with the
preparation of the registration statement or any preliminary prospectus or final
prospectus contained in the registration statement or any such amendment thereof
or supplement thereto or (ii) inure to the benefit of any person to the extent
such person's claim for indemnification hereunder arises out of or is based on
any violation by such person of applicable law.
(b) In the case of each registration effected by the Company
pursuant to this Agreement in which any Shareholder's Registrable Securities are
included, such Shareholder shall be obligated, and shall cause each underwriter
of the shares of Registrable Securities to be registered on behalf of such
person (each Shareholder and such underwriters being referred to severally in
this subsection (b) as the "indemnifying person") to be obligated, in the same
manner and to the same extent as set forth in subsection (a) of this Section
2.7, to indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act, its
directors and officers, with respect to any statement or alleged untrue
statement in, or omission or alleged omission from, such registration statement
or any post-effective amendment thereof or any preliminary prospectus or final
prospectus (as amended or supplemented, if amended or supplemented as aforesaid)
contained in such registration statement, if such statement or omission was made
in reliance upon and in conformity with information furnished in writing to the
Company by such indemnifying person for use in connection with the preparation
of such registration statement or any preliminary prospectus or final prospectus
contained in such registration statement or any such amendment thereof or
supplement thereto; provided, however, that the liability of each Shareholder
hereunder shall be limited to the proceeds received by each Shareholder from
11
the sale of Registrable Securities covered by such registration statement,
amendment, supplement or prospectus, as the case may be.
(c) Each person to be indemnified pursuant to this Section 2.7
shall, promptly after its receipt of written notice of the commencement of any
action against such indemnified person in respect of which indemnity may be
sought from an indemnifying person under this Section 2.7, notify the
indemnifying person in writing of the commencement thereof. The omission of any
indemnified person so to notify an indemnifying person of the commencement of
any such action shall relieve the indemnifying person from any liability in
respect of such action which it may have to such indemnified person on account
of the indemnity agreement contained in this Section 2.7, but shall not relieve
the indemnifying person from any other liability which it may have to such
indemnified person. If any such action shall be brought against any indemnified
person and it shall notify an indemnifying person of the commencement thereof,
the indemnifying person shall be entitled to participate therein and, to the
extent it may desire, jointly with any other indemnifying persons similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified person, and after notice from the indemnifying person to such
indemnified person of its election so to assume the defense thereof, the
indemnifying person shall not be liable to such indemnified person under this
Section 2.7 for any legal or other expenses subsequently incurred by such
indemnified person in connection with the defense thereof other than reasonable
costs of investigation unless (i) the indemnified party shall have employed
counsel in an action in which the indemnified party and indemnifying party are
both defendants and there is a conflict of interest between such parties that
would prevent counsel from adequately representing both parties, (ii) the
indemnifying party shall not have employed counsel satisfactory within the
exercise of reasonable judgment of the indemnified party to represent the
indemnified party within a reasonable time after the notice of the commencement
of the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party. The
undertaking contained in this Section 2.7 shall be in addition to any
liabilities which the indemnifying person may have pursuant to law.
If the indemnification provided for in Sections 2.7(a) and (b) hereof is
unavailable or insufficient to hold harmless an indemnified party under such
paragraphs in respect of any losses, claims, damages or liabilities or actions
in respect thereof referred to therein, then each indemnifying party shall in
lieu of indemnifying such indemnified party contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or actions in such proportion as appropriate to reflect the relative
fault of the Company, on the one hand, and the underwriters and the sellers of
such Registrable Securities, on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or actions
as well as any other relevant equitable considerations, including the failure to
give any notice under Section 2.7(c). The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by the Company, on the one
hand, or the underwriters and the sellers of such Registrable Securities, on the
other, and to the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each other party hereto agrees that it would not be just and equitable if
contributions pursuant to this paragraph were determined by pro rata allocation
(even if all of the sellers of such Registrable Securities were treated as one
entity for such purpose) or by any other method of allocation which did not take
account of the equitable considerations referred to above in this paragraph. The
amount paid or payable
12
by an indemnified party as a result of the losses, claims, damages, liabilities
or action in respect thereof, referred to above in this paragraph, shall be
deemed to include 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 paragraph, the sellers of such
Registrable Securities shall not be required to contribute any amount in excess
of the amount, if any, by which the total price at which the Common Stock sold
by each of them was offered to the public exceeds the amount of any damages
which they would have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f) of the Securities Act),
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.
This indemnification of underwriters provided for in this Section 2.7
shall be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters. In that event the indemnification of
the sellers of Restricted Stock in such underwriting shall at the sellers'
request be modified to conform to such terms and conditions.
2.8 Information by Shareholders. Each Shareholder requesting Registrable
Securities to be included in any registration shall furnish to the Company such
information regarding such Shareholder and the distribution proposed by such
Shareholder as the Company may request and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Article II.
2.9 Rule 144 Reporting. With a view to making available to the
Shareholders the benefits of certain rules and regulations of the Commission
which may permit the sale of the Registrable Securities to the public without
registration, the Company agrees to:
(a) Commission Reports. File with the Commission in a timely manner
all reports and other documents thereafter required of the Company if the
Company is or becomes subject to the reporting requirements of Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act");
and
(b) Other Information. Furnish to each Shareholder forthwith upon
its request (i) a written statement by the Company as to the Company's
compliance with the public information requirements of Commission Rule 144 (at
any time after 90 days after the Company becomes subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act), (ii) a copy of the
most recent annual or quarterly report of the Company, and (iii) such other
reports and documents as may be reasonably requested in availing any Shareholder
of any rule or regulation of the Commission permitting the sale of any such
securities without registration.
2.10 Transfer of Registration Rights. The rights to cause the Company to
register securities under this Article II may be assigned following receipt by
the Company of notice of proposed transfer by any Shareholder to any assignee or
transferee of any shares of capital stock of the Company which are Registrable
Securities or with respect to which Registrable Securities may be issued and
receipt of the agreement of such holder to be bound by the provisions of this
Agreement applicable to holders of Registrable Securities.
2.11 Notice of Sale Information. Any notice from a holder of Registrable
Securities requesting registration of some or all of such Registrable Securities
pursuant to Sections 2.1,
13
2.2 or 2.3 shall (i) specify the number of shares of Registrable Securities
intended to be included in such registration; (ii) describe the nature and
method of the proposed offering and sale; and (iii) include an undertaking to
provide all information and materials concerning such holder and the method of
distribution and to take any other actions reasonably requested by the Company
to enable the Company to comply with the Securities Act, any state securities
law and/or the applicable requirements of the Commission or any state securities
commissioner or similar agency or official.
ARTICLE III
TRANSFERABILITY
3.1 Transferability. Transfer of the Capital Shares shall be made only on
the books of the Company by the holders of record thereof or by their legal
representatives who shall furnish proper evidence of authority to transfer, or
by their attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Company, subject to the restrictions set forth
in (i) Sections 9.2, 9.3 and 11.2 of that certain Investment Agreement, dated
December 29, 1992, as amended, by and among the Company, South Atlantic Venture
Fund II, Limited Partnership ("South Atlantic II"), and South Atlantic Venture
Fund III, Limited Partnership ("South Atlantic III"), and (ii) that certain
Shareholders Agreement, entered into on even date herewith, by and among the
Company, J. Xxxxxxx Xxxxx, South Atlantic II, South Atlantic III, Welsh, Carson,
Xxxxxxxx & Xxxxx VI, L.P. ("WCAS VI"), WCAS Capital Partners II, L.P., WCAS
Healthcare Partners, L.P., CID Equity Capital III, L.P., and Xxxxxxx X. Xxxxxxx
(the "Shareholders Agreement"). The holder(s) in whose name the Capital Shares
stand on the books of the Company shall be deemed by the Company to be owner(s)
thereof for all purposes.
3.2 Restrictive Legends. Unless and until otherwise permitted by this
Section, each instrument evidencing Capital Shares shall contain or otherwise be
imprinted with a suitable legend in substantially the following form:
"The shares evidenced by this certificate have been issued or sold in
reliance on section 10-5-9(13) of the Georgia Securities Act of 1973, as
amended, and may not be sold or transferred except in a transaction that
is exempt under such act or pursuant to an effective registration under
such act. This security has not been registered under the 1933 Act or any
state securities act, and has been acquired for investment and not with a
view to, or for sale in connection with, any distribution thereof within
the meaning of the 1933 Act, as amended."
The Company is hereby authorized to place "stop transfer" instructions on its
records or to instruct any transfer agent to prevent the transfer of such shares
except in conformity with this Article.
3.3 Restriction on Transfer. In addition to the restrictions on transfer
set forth in the Shareholders Agreement, no holder shall transfer any of the
Capital Shares until it has first given written notice to the Company describing
briefly the manner of any such proposed transfer and until (i) the Company has
received from the holder's counsel an opinion (reasonably satisfactory in form
and substance to the Company's counsel) that such transfer can be made without
compliance with the registration provisions of the Securities Act or any
14
state Securities Act and without the necessity of perfection of an exemption
pursuant to Regulation A adopted pursuant to said Securities Act, or (ii) such
transfer complies with Rule 144 (or comparable successor provisions) promulgated
under the said Securities Act and applicable state securities act requirements,
or (iii) a registration statement filed by the Company is declared effective by
the SEC and governing state Securities Act authorities or steps necessary to
perfect exemptions from such registration are completed.
Notwithstanding anything to the contrary herein, in the event that there
is an Underwritten Public Offering of securities of the Company pursuant to a
registration covering Registrable Securities and a Shareholder of Registrable
Securities does not elect to sell his Registrable Securities to the underwriters
of the Company's securities in connection with such offering, such Shareholder
shall refrain from selling such Registrable Securities during the period of
distribution of the Company's securities by such underwriters and the period in
which the underwriting syndicate participates in the after market; provided,
however, that such Shareholder shall, in any event, be entitled to sell its
Registrable Securities commencing on the ninetieth (90th) day after the
effective date of such registration statement.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. Any notice, request, reply instruction or other communication
(herein severally and collectively called "notice") in this Agreement provided
or permitted to be given to the Company or to any Shareholder must be given in
writing and may be given or served by overnight delivery service, depositing the
same in the United States mail, in certified or registered form postage fully
prepaid, addressed to the party or parties to be notified, with return postage
fully requested, or by delivering the same in person to such party or parties.
Notice deposited in the United States mail, mailed in the manner hereinabove
described, shall be effective upon deposit. Notice given in any other manner
shall be effective only if and when received by the party to be notified. Unless
appropriate notice of a change of address is otherwise provided to the Company,
any notice to Shareholders shall be addressed in accordance with the address
specified in the stock records of the Company. In any event, until notice is
given of a change of address, notice to the Company, South Atlantic II, South
Atlantic III, and WCAS VI shall be addressed and provided as follows:
If to Company: WelCare International, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
with a copy to: Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P
000 Xxxxxx Xxxxxx, Xxxxx 0000
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
If to South Atlantic II: South Atlantic Venture Fund II, Limited
Partnership
000 Xxxx Xxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000-0000
15
with a copy to: Xxxxx, Xxxxxxx & Xxxxxxxxx
Exchange Plaza
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
If to South Atlantic III: South Atlantic Venture Fund III, Limited
Partnership
000 Xxxx Xxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000-0000
with a copy to: Xxxxx, Xxxxxxx & Xxxxxxxxx
Exchange Plaza
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
If to WCAS VI: Welsh, Carson, Xxxxxxxx & Xxxxx VI, L.P.
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Xxxxx X. Xxxxxx
with a copy to: Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
4.2 Remedies. Each party hereto acknowledges that a remedy at law for any
breach or attempted breach of this Agreement will be inadequate, agrees that
each other party hereto shall be entitled to specific performance and injunctive
and other equitable relief in case of any such breach or attempted breach, and
further agrees to waive any requirement for the securing or posting of any bond
in connection with the obtaining of any such injunctive or any other equitable
relief.
4.3 Effect of Sale. Any Shareholder who sells all of his Registrable
Securities pursuant to the terms of this Agreement shall cease to be a party to
this Agreement and shall have no further rights or obligations hereunder.
4.4 Amendment. This Agreement may not be modified or amended except in a
writing signed by the Company and the holders of 66-2/3% of the total
Registrable Securities outstanding at such time (with any shares of Registrable
Securities issuable upon conversion of other securities deemed to be outstanding
for these purposes).
4.5 Governing Law. This Agreement shall be subject to and governed by the
laws of the State of Georgia.
16
4.6 Jurisdiction. All legal actions to enforce or interpret the provisions
of this Agreement shall be filed in a court of the State of Georgia or of the
United States District Court having jurisdiction over Xxxxxx County, Georgia.
All parties irrevocably waive any objection they may have to the laying of venue
of any suit, action or proceeding arising out of or relating hereto brought in
any such court, irrevocably waive any claim that any such suit, action or
proceeding so brought has been brought in an inconvenient forum and further
waive the right to object that such court does not have jurisdiction over such
party. No party shall bring a suit, action or proceeding in respect of this
Agreement in any other jurisdiction than as aforesaid.
4.7 Successors and Assigns. This Agreement shall be binding upon and inure
to the parties contained in this Agreement and their respective heirs,
executors, distributees, successors (including successors by merger) and
permitted assigns.
4.8 Invalid Provisions. Should any portion of this Agreement be adjudged
or held to be invalid, unenforceable or void, such holding shall not have the
effect of invalidating or voiding the remainder of this Agreement and the
parties hereby agree that the portion so held invalid, unenforceable or void
shall, if possible, be deemed amended or reduced in scope, or to otherwise be
stricken from this Agreement to the extent required for the purposes of validity
and enforcement thereof.
4.9 Section Headings. The section and paragraph headings contained herein
are for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement.
4.10 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute only one
instrument.
4.11 Adjustments. In the event the Company shall declare a stock split,
stock dividend or other distribution of capital stock in respect of, or issue
capital stock in replacement of or exchange for, the Capital Shares, such shares
shall be Capital Shares subject to this Agreement.
4.12 Entire Agreement. This Agreement constitutes the sole and entire
agreement between the parties hereto with respect to the subject matter hereof
and specifically supersedes and replaces that certain Registration Rights
Agreement, dated as of December 29, 1992, as amended, by and among the Company,
South Atlantic II, and South Atlantic III, and that certain Registration Rights
Agreement, dated November 1, 1993, as amended, by and among THS and the owners
of Restricted Stock, as defined therein.
4.13 Time of the Essence. Time is of the essence with respect to every
provision of this Agreement.
17
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
on its behalf and its corporate seal to be hereunto affixed by its duly
authorized officers and the Shareholders have caused this Agreement to be
executed by the appropriate authorized person, as of the day and year first
above written.
WELCARE INTERNATIONAL, INC.
ATTEST:
/s/ Xxxx X. Xxxxxx By: /s/ J. Xxxxxxx Xxxxx
-------------------------- -----------------------------
Assistant Secretary J. Xxxxxxx Xxxxx
President and Chief Executive Officer
/s/ J. Xxxxxxx Xxxxx
-----------------------------
J. XXXXXXX XXXXX
SOUTH ATLANTIC VENTURE FUND II,
LIMITED PARTNERSHIP
By: South Atlantic Venture Partners II,
Limited Partnership, General Partner
By: /s/ W. Xxxxx Xxxxxx
-----------------------------
W. Xxxxx Xxxxxx, General Partner
SOUTH ATLANTIC VENTURE FUND III,
LIMITED PARTNERSHIP
By: South Atlantic Venture Partners III,
Limited Partnership, General Partner
By: /s/ W. Xxxxx Xxxxxx
-----------------------------
W. Xxxxx Xxxxxx, General Partner
WELSH, CARSON, XXXXXXXX & XXXXX VI,
L.P.
By: WCAS VI Partners, General Partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
General Partner
WCAS CAPITAL PARTNERS II, L.P.
By: WCAS XX XX Partners, General Partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
General Partner
WCAS HEALTHCARE PARTNERS, L.P.
By: WCAS HP Partners, General Partner
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
General Partner
/s/ Xxxxx X. Xxxxxxxx
-----------------------------
XXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxx
-----------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
-----------------------------
XXXXX X. XXXXXX
DELAWARE CHARTER TRUST CO. AS TTEE-FBO
THE XXX ROLLOVER OF XXXXX X. XXXXXX
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Its:_________________________
/s/ Xxxxxx X. XxXxxxxxx
---------------------------------
XXXXXX X. XXXXXXXXX
/s/ Xxxxxx X. Xxxx
---------------------------------
XXXXXX X. XXXX
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
XXXXXX X. XXXXXXXXX
/s/ Xxxxxxx X. Xxxxx
---------------------------------
XXXXXXX X. XXXXX
DELAWARE CHARTER TRUST CO. AS TTEE-FBO
THE XXX ROLLOVER OF XXXXXXX X. XXXXX
By:/s/ Xxxxxxx X. Xxxxx
---------------------------------
Its:_____________________________
/s/ Xxxxx X. XxxXxxxx
---------------------------------
XXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxx
---------------------------------
XXXXXXX X. XXXXX
---------------------------------
XXXXX X. XXXXX, XX.
---------------------------------
XXXXXX X. XXXXX, M.D. TRUST
By:______________________________
Its:_____________________________
---------------------------------
WILEY X. XXXXXXX
---------------------------------
XXXX X. XXXXX, XX.
---------------------------------
XXXXXXXXXX X. XXXXXXX, XX.
---------------------------------
XXXXXXXX X. XXXXXX, XX.
---------------------------------
X.X. XXXXXXXXX
---------------------------------
XXXX X. XXXXXX
---------------------------------
XXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxx
---------------------------------
XXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
XXXXXXX X. XXXXXXX
HORIZON INVESTMENT ASSOCIATES II
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Its: Partner
XXXXX FAMILY PARTNERSHIP, LTD.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Its: General Partner
XXXXX X. XXXXX FAMILY TRUST
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Its: General Partner
---------------------------------
CID EQUITY CAPITAL III, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx, General Partner
/s/ Xxxxx X. XxxXxxxx
---------------------------------
XXXXX X. XXXXXXXX
/s/ Xxxxx X. Kitchen
---------------------------------
XXXXX X. KITCHEN
/s/ Xxxx X. Xxxxxxx
---------------------------------
XXXX X. XXXXXXX
PRUDENTIAL SECURITIES, INC.
C/F XXXX X. XXXXXXX XXX ROLLOVER
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Its:_____________________________
Schedule I
CLASS OF CAPITAL STOCK
Shareholder Class of Capital Stock Number of Shares
J. Xxxxxxx Xxxxx Common Stock 1,455,480
South Atlantic II Common Stock 38,140
Series A Preferred Stock 205,541
Series B Preferred Stock 164,446
South Atlantic III Common Stock 41,640
Series B Preferred Stock 164,446
Welsh, Carson, Xxxxxxxx & Special Voting Common Stock 2,649,254
Xxxxx VI, L.P.
WCAS Capital Partners II, L.P. Special Voting Common Stock 374,594
WCAS Healthcare Partners, L.P. Special Voting Common Stock 62,311
CID Equity Capital III, L.P. Special Voting Common Stock 255,168
Xxxxx X. Xxxxxxxx Special Voting Common Stock 17,803
Xxxxxxx X. Xxxxxx Special Voting Common Stock 17,803
Xxxxx X. Xxxxxx Special Voting Common Stock 4,451
Delaware Charter Trust Co.
as TTEE-FBO the XXX Rollover of Special Voting Common Stock 4,451
Xxxxx X. Xxxxxx
Xxxxxx X. XxXxxxxxx Special Voting Common Stock 3,561
Xxxxxx X. Xxxx Special Voting Common Stock 7,121
Xxxxxx X. Xxxxxxxxx Special Voting Common Stock 2,671
Xxxxxxx X. Xxxxx Special Voting Common Stock 4,451
Delaware Charter Trust Co.
as TTEE-FBO the XXX Rollover of Special Voting Common Stock 4,451
Xxxxxxx X. Xxxxx
Xxxxx X. XxxXxxxx Special Voting Common Stock 356
Xxxxxxx X. Xxxxx Special Voting Common Stock 17,803
Xxxxx X. Xxxxx, Xx. Special Voting Common Stock 7,326
Xxxxx X. Xxxxx, Xx., l/O Special Voting Common Stock 1,465
XXX Xxxxxxx as Custodian
FBO Xxxxxx X. Xxxxx, M.D. Special Voting Common Stock 2,930
North Broward Radiologist, PA
Employee Profit Sharing Plan
M/P PURPL Trust
Wiley X. Xxxxxxx Special Voting Common Stock 2,344
Xxxx X. Xxxxx, Xx. Special Voting Common Stock 2,930
Xxxxxxxx X. Xxxxxx, Xx. Special Voting Common Stock 98,648
X.X. Xxxxxxxxx Special Voting Common Stock 2,930
Xxxx X. Xxxxxx Special Voting Common Stock 2,930
Xxxxx X. Xxxxxxx Special Voting Common Stock 12,308
Xxxxxxxxxx X. Xxxxxxx, Xx. Special Voting Common Stock 5,861
Xxxxxx X. Xxxxx Special Voting Common Stock 30,618
Xxxxxxx X. Xxxxxxx Special Voting Common Stock 163,758
Horizon Investment Associates, II Special Voting Common Stock 35,606
Xxxxx Family Partnership, Ltd. Special Voting Common Stock 5,888
Xxxxx X. Xxxxx Family Trust Special Voting Common Stock 3,013
Xxxxx X. XxxXxxxx Special Voting Common Stock 8,403
Xxxxx X. Kitchen Special Voting Common Stock 1,766
Xxxx X. Xxxxxxx Special Voting Common Stock 3,768
Prudential Securities, Inc. Special Voting Common Stock 824
C/F Xxxx X. Xxxxxxx XXX Rollover
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT, dated as of
January 31, 1997, among CENTENNIAL HEALTHCARE CORPORATION, a Georgia corporation
(the "Company") and the several other persons named at the foot hereof (such
persons being hereinafter collectively referred to as the "Shareholders").
WHEREAS, the Company and the Shareholders have heretofore entered
into a Registration Rights Agreement, dated December 31, 1995 (the "Agreement"),
which Agreement provides, among other things, for (i) certain restrictions on
the transfer of, and (ii) the registration, under certain circumstances, of
Registrable Securities (as defined in the Agreement) under the Securities Act of
1933, as amended (each capitalized term used herein but not defined herein shall
have the meaning assigned to such term in the Agreement);
WHEREAS, on the date hereof, the Company has entered into a
Securities Purchase Agreement (the "Purchase Agreement"), with certain of the
Shareholders (the "Purchasing Shareholders"), pursuant to which the Company has
issued and sold on this date (i) to the Purchasing Shareholders an aggregate
50,000 shares (the "Series D Shares") of Series D Preferred Stock, $1.00 par
value (the "Series D Preferred Stock"), and (ii) to certain of the Purchasing
Shareholders an aggregate 50,000 investment units, each investment unit being
comprised of one share of Series E Senior Preferred Stock, $1.00 par value, and
1.85102 shares (the "Common Shares") of Common Stock of the Company;
WHEREAS, on the date hereof, the Purchasing Shareholders, other than
South Atlantic Venture Fund III, Limited Partnership, have entered into a Stock
Purchase Agreement (the "Stock Purchase Agreement"), with J. Xxxxxxx Xxxxx and
with Xxxx X. Xxxxx, Xx., pursuant to which Messrs. Xxxxx and Xxxxx have agreed
to sell, and such Purchasing Shareholders have agreed to purchase, certain of
the shares of Common Stock of the Company held by Messrs. Xxxxx and Xxxxx
(collectively, the "Xxxxx/Xxxxx Shares"; such Shares, excluding the shares sold
by Xx. Xxxxx, being herein called the "Xxxxx Shares" and such Shares, excluding
the shares sold by Xx. Xxxxx, being herein called the "Xxxxx Shares"); and
WHEREAS, the Company and the Shareholders desire to amend the
Agreement to include the shares of Common Stock issuable upon conversion of the
Series D Shares, the Common Shares and the Xxxxx/Xxxxx Shares among the
Registrable Securities and to provide that the holders from time to time of such
Shares shall have the same rights and obligations as the other holders of
Registrable Securities under the Agreement, as amended hereby;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
1. The definition of "Registrable Securities" as set forth in
Article I of the Agreement is hereby amended to read in its entirety as follows:
"Registrable Securities" means the Common Stock held by the
Shareholders, including shares issued or issuable at any time or
from time to time upon conversion of the Series A Preferred Stock,
$11.0011 par value per share, the Series B Preferred Stock, $8.7377
par value per share, the Series D Preferred Stock, $1.00 par value
per share, or the Special Voting Common Stock, no par value per
share, of the Company. The term "Registrable
Securities" does not include shares of capital stock of the Company
which have been registered, as defined below, and sold pursuant to
such registration."
2. Schedule I shall be deemed amended to include the Series D
Shares, the Common Shares and the Xxxxx Shares and to reflect that the Xxxxx
shares have been sold to certain of the Shareholders, and the Series D Shares,
the Common Shares and the Xxxxx Shares shall be deemed to be "Capital Shares"
under the Agreement.
3. The Agreement, as amended by this First Amendment to Registration
Rights Agreement, is in all respects confirmed in its entirety.
4. This First Amendment to Registration Rights Agreement shall be
governed by and construed in accordance with the laws of the State of Georgia.
5. This First Amendment to Registration Rights Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this First
Amendment to Registration Rights Agreement as of the date first above written.
CENTENNIAL HEALTHCARE CORPORATION
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
2
AGREED TO AND ACCEPTED
as of the date first above written:
Shareholders:
WELSH, CARSON, XXXXXXXX & XXXXX VI, L.P.
By WCAS VI Partners, L.P., General Partner
WCAS CAPITAL PARTNERS II, L.P.
By WCAS XX XX Partners, General Partner
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. XxXxxxxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxxxx
MSTC, Custodian FBO the XXX/Rollover
of Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
By: /s/ Xxxxx XxxXxxxx
---------------------------
Xxxxx XxxXxxxx
Attorney in Fact or General Partner
WCAS HEALTHCARE PARTNERS, L.P.
By WCAS HC Partners, General Partner
By: /s/ Xxxxx XxxXxxxx
---------------------------
General Partner Attorney in Fact
/s/ Xxxxx XxxXxxxx
-------------------------------
Xxxxx XxxXxxxx
CID EQUITY CAPITAL III, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
General Partner
/s/ J. Xxxxxxx Xxxxx
---------------------------
J. Xxxxxxx Xxxxx
3
SOUTH ATLANTIC VENTURE FUND II,
LIMITED PARTNERSHIP
By South Atlantic Venture Partners II,
Limited Partnership, General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
W. Xxxxx Xxxxxx, General Partner or
Xxxxxx X. Xxxxxx, General Partner
SOUTH ATLANTIC VENTURE FUND III,
LIMITED PARTNERSHIP
By South Atlantic Venture Partners III,
Limited Partnership, General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
W. Xxxxx Xxxxxx, General Partner or
Xxxxxx X. Xxxxxx, General Partner
4
