Exhibit 99.4
RES-CARE, INC.
10 5/8% SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
November 15, 2001
UBS Warburg LLC
Xxxxxx Brothers Inc.
Banc One Capital Markets, Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Xxxxxxxxx & Company, Inc.
First Analysis Securities Corporation
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Res-Care, Inc., a Kentucky corporation (the "COMPANY"),
proposes to issue and sell (the "INITIAL PLACEMENT") to UBS Warburg LLC, Xxxxxx
Brothers Inc., Banc One Capital Markets, Inc., U.S. Bancorp Xxxxx Xxxxxxx Inc.,
Xxxxxxxxx & Company, Inc., and First Analysis Securities Corporation (the
"INITIAL PURCHASERS"), upon terms set forth in a purchase agreement dated as of
November 9, 2001 (the "PURCHASE AGREEMENT") among the Company, the subsidiary
guarantors named therein (the "GUARANTORS") and the Initial Purchasers,
$150,000,000 of its 10 5/8% Senior Notes due 2008 (the "INITIAL NOTES"). As an
inducement to you to enter into the Purchase Agreement and purchase the Initial
Notes and in satisfaction of a condition to your obligations under the Purchase
Agreement, the Company and the Guarantors agree with you for the benefit of the
holders from time to time of the Initial Notes (including the Initial
Purchasers) (each of the foregoing a "HOLDER" and together the "HOLDERS"), as
follows:
1. DEFINITIONS. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"AFFILIATE" of any specified person means any other person
that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such
person whether by contract or otherwise; and the terms "CONTROLLING"
and "CONTROLLED" have meanings correlative to the foregoing.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday
or Friday which is not a day on which banking institutions in New York,
New York are generally authorized or obligated by law or executive
order to close.
"CLOSING DATE" has the meaning set forth in the Purchase
Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" has the meaning set forth in the preamble hereto.
"DAMAGES PAYMENT DATE" means, with respect to the Initial
Notes, each date on which interest is paid in accordance with the
Indenture.
"DELAY PERIOD" has the meaning set forth in Section 5(i)
hereof.
"EFFECTIVENESS TARGET DATE" has the meaning set forth in
Section 5(b) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"EXCHANGE OFFER" means the proposed offer to the Holders to
issue and deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of Exchange Notes.
"EXCHANGE OFFER REGISTRATION PERIOD" means the longer of (A)
the period until the consummation of the Exchange Offer and (B) two
years after effectiveness of the Exchange Offer Registration Statement,
exclusive of any period during which any stop order shall be in effect
suspending the effectiveness of the Exchange Offer Registration
Statement; PROVIDED, HOWEVER, that in the event that all resales of
Exchange Notes (including, subject to the time periods set forth
herein, any resales by Exchanging Dealers) covered by such Exchange
Offer Registration Statement have been made, the Exchange Offer
Registration Statement need not remain continuously effective for the
period set forth in clause (B) above.
"EXCHANGE OFFER REGISTRATION STATEMENT" means a Registration
Statement of the Company on an appropriate form under the Securities
Act with respect to the Exchange Offer, all amendments and supplements
to such Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"EXCHANGE NOTES" means securities issued by the Company,
identical in all material respects to the Notes to be issued under the
Indenture.
"EXCHANGING DEALER" means any Holder (which may include the
Initial Purchasers) that is a broker-dealer, electing to exchange Notes
acquired for its own account as a result of market-making activities or
other trading activities for Exchange Notes.
"HOLDER" has the meaning set forth in the preamble hereto.
"INDENTURE" means the Indenture, dated as of November 15,
2001, between the Company, the Guarantors and National City Bank, as
trustee, pursuant to which the Notes are to be issued, as such
Indenture is amended or supplemented from time to time in accordance
with the terms thereof.
"INITIAL NOTES" means the 10 5/8% Senior Notes due 2008, of
the same series under the Indenture as the Exchange Notes, for so long
as such securities constitute Transfer Restricted Securities.
"INITIAL PLACEMENT" has the meaning set forth in the preamble
hereto.
"INITIAL PURCHASERS" has the meaning set forth in the preamble
hereto.
"LOSSES" has the meaning set forth in Section 6(d) hereto.
"MAJORITY HOLDERS" means the Holders of a majority of the
aggregate principal amount of Notes registered under a Registration
Statement.
"MANAGING UNDERWRITERS" means the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering under a Shelf Registration Statement.
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"NOTES" means the Initial Notes and Exchange Notes.
"OFFERING MEMORANDUM" has the meaning set forth in the
Purchase Agreement.
"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 upon 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 Notes covered by such Registration Statement, and all amendments
and supplements to the Prospectus, including post-effective amendments.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble
hereto.
"REGISTRATION DEFAULT" has the meaning set forth in Section
5(b) hereof.
"REGISTRATION STATEMENT" means any Exchange Offer Registration
Statement or Shelf Registration Statement pursuant to the provisions of
this Agreement, amendments and supplements to such registration
statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto, and all
material incorporated by reference therein.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 3 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in
Section 3(b) hereof.
"SHELF REGISTRATION STATEMENT" means a "SHELF" registration
statement of the Company pursuant to the provisions of Section 3
hereof, which covers some or all of the Notes or Exchange Notes, as
applicable, on an appropriate form under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the Commission,
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"TRANSFER RESTRICTED SECURITIES" means each Note until: (i)
the date on which such Note has been exchanged by a Person other than a
broker-dealer for an Exchange Note in the Exchange Offer; (ii)
following the exchange by a broker-dealer in the Exchange Offer of a
Note for an Exchange Note, the date on which such Exchange Note is sold
to a purchaser who receives from such broker-dealer on or prior to the
date of such sale a copy of the Prospectus contained in the Exchange
Offer Registration Statement; (iii) the date on which such Note has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement; or (iv) the date on
which such Note is distributed to the public pursuant to Rule 144 under
the Securities Act.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended.
"TRUSTEE" means National City Bank and any successors thereto.
"UNDERWRITER" means any underwriter of Notes in connection
with an offering thereof under a Shelf Registration Statement.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" means a
registration in which the Notes of the Company are sold to an
underwriter for reoffering to the public.
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2. EXCHANGE OFFER; RESALES OF EXCHANGE NOTES BY EXCHANGING
DEALERS; PRIVATE EXCHANGE.
(a) The Company shall prepare and file with the Commission the
Exchange Offer Registration Statement with respect to the Exchange
Offer on or before the 90th calendar day after the Closing Date. The
Company shall use its best efforts (i) to cause the Exchange Offer
Registration Statement to be declared effective under the Securities
Act on or prior to the 150th calendar day following the Closing Date
and remain effective until the closing of the Exchange Offer and (ii)
to consummate the Exchange Offer on or prior to the 180th calendar day
following the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder
electing to exchange Notes for Exchange Notes (assuming that such
Holder (x) is not an "AFFILIATE" of the Company within the meaning of
the Securities Act, (y) is not a broker-dealer that acquired the Notes
in a transaction other than as a part of its market-making or other
trading activities and (z) if such Holder is not a broker-dealer,
acquires the Exchange Notes in the ordinary course of such Holder's
business, is not participating in the distribution of the Exchange
Notes and has no arrangements or understandings with any person to
participate in the distribution of the Exchange Notes) to resell such
Exchange Notes from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions
under the securities laws of a substantial proportion of the several
states of the United States.
(c) In connection with the Exchange Offer, the Company shall
mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents, stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Agreement and that all Notes validly tendered will be
accepted for exchange;
(ii) the dates of acceptance for exchange;
(iii) that any Notes not tendered will remain
outstanding and continue to accrue interest, but will not
retain any rights under this Agreement;
(iv) that Holders electing to have Notes exchanged
pursuant to the Exchange Offer will be required to surrender
such Notes, together with the enclosed letters of transmittal,
to the institution and at the address (located in the Borough
of Manhattan, The City of New York) specified in the notice
prior to the close of business on the last day of acceptance
for exchange; and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the last day
of acceptance for exchange, by sending to the institution and
at the address (located in the Borough of Manhattan, The City
of New York) specified in the notice a telegram, telex,
facsimile transmission or letter setting forth the name of
such Holder, the aggregate principal amount of Notes delivered
for exchange and a statement that such Holder is withdrawing
his election to have such Notes exchanged; and shall keep the
Exchange Offer open for acceptance for not less than 20 days
(or longer if required by applicable law) after the date
notice thereof is mailed to the Holders; utilize the services
of a depositary for the Exchange Offer with an address in the
Borough of Manhattan, The City of New York; and comply in all
respects with all applicable laws relating to the Exchange
Offer.
(d) As soon as practicable after the close of the Exchange
Offer, the Company shall:
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(i) accept for exchange all Notes duly tendered and
not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all
Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder Exchange Notes equal in principal
amount to the Notes of such Holder so accepted for exchange.
(e) The Initial Purchasers and the Company acknowledge that,
pursuant to interpretations by the staff of the Commission of Section 5
of the Securities Act, and in the absence of an applicable exemption
therefrom, each Exchanging Dealer is required to deliver a Prospectus
in connection with a sale of any Exchange Notes received by such
Exchanging Dealer pursuant to the Exchange Offer in exchange for Notes
acquired for its own account as a result of market-making activities or
other trading activities. Accordingly, the Company shall:
(i) include the information set forth in Annex A
hereto on the cover of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth
details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus
forming a part of the Exchange Offer Registration Statement,
and in Annex D hereto in the letter of transmittal delivered
pursuant to the Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the
Securities Act during the Exchange Offer Registration Period
for delivery of the prospectus included therein by Exchanging
Dealers in connection with sales of Exchange Notes received
pursuant to the Exchange Offer, as contemplated by Section
4(h) below; PROVIDED, HOWEVER, that the Company shall not be
required to maintain the effectiveness of the Exchange Offer
Registration Statement for more than 30 days following the
consummation of the Exchange Offer unless the Company has been
notified in writing on or prior to the 30th day following the
consummation of the Exchange Offer by one or more Exchanging
Dealers that such Holder has received Exchange Notes as to
which it will be required to deliver a prospectus upon resale.
(f) In the event that an Initial Purchaser determines that it
is not eligible to participate in the Exchange Offer with respect to
the exchange of Notes constituting any portion of an unsold allotment,
upon the effectiveness of the Shelf Registration Statement as
contemplated by Section 3 hereof and at the request of the Initial
Purchasers, the Company shall issue and deliver to the Initial
Purchasers, or to the party purchasing Initial Notes registered under
the Shelf Registration Statement from the Initial Purchasers, in
exchange for such Initial Notes, a like principal amount of Exchange
Notes. The Company shall use its best efforts to cause the CUSIP
Service Bureau to issue the same CUSIP number for such Exchange Notes
as for Exchange Notes issued pursuant to the Exchange Offer.
(g) The Company shall use its best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other than
that (i) the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the Commission, (ii) no
action or proceeding shall have been instituted or threatened in any
court or by any governmental agency which might materially impair the
ability of the Company to proceed with the Exchange Offer, and no
material adverse development shall have occurred in any existing action
or proceeding with respect to the Company and (iii) all governmental
approvals shall have been obtained, which approvals the Company deems
necessary for the consummation of the Exchange Offer. The
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Company shall inform the Initial Purchasers, upon their request, of the
names and addresses of the Holders to whom the Exchange Offer is made,
and the Initial Purchasers shall have the right, subject to applicable
law, to contact such Holders and otherwise facilitate the tender of
Notes in the Exchange Offer.
(h) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
broker-dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in XXXXXX XXXXXXX AND CO., INC. (available June 5, 1991) and
EXXON CAPITAL HOLDINGS CORPORATION (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters, and (2) must comply with
the registration and prospectus delivery requirements of the Securities
Act in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Initial Notes acquired by such Holder directly from the
Company.
3. SHELF REGISTRATION. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Exchange Offer as contemplated by Section 2 hereof, or (ii) if for any
reason the Exchange Offer is not completed within 180 days following the Closing
Date, or (iii) with respect to any Holder of Transfer Restricted Securities (A)
such Holder is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) such Holder may not resell the
Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder, or (C) such Holder is an Exchanging Dealer and holds Initial Notes
acquired directly from the Company or one of its affiliates (it being understood
that, for purposes of this Section 3, (x) the requirement that the Initial
Purchasers deliver a Prospectus containing the information required by Items 507
and/or 508 of Regulation S-K under the Securities Act in connection with sales
of Exchange Notes acquired in exchange for such Notes shall result in such
Exchange Notes being not "FREELY TRADEABLE" and (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Notes acquired in the Exchange Offer in exchange for Notes acquired as a result
of market-making activities or other trading activities shall not result in such
Exchange Notes being not "FREELY TRADEABLE"), the following provisions shall
apply:
(a) The Company shall, as promptly as practicable, file with
the Commission a Shelf Registration Statement relating to the offer and
sale of the Notes or the Exchange Notes, as applicable, by the Holders
from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration
Statement and Rule 415 under the Securities Act; PROVIDED that, with
respect to Exchange Notes received by the Initial Purchasers in
exchange for Initial Notes constituting any portion of an unsold
allotment, the Company may, if permitted by current interpretations by
the Commission's staff, file a post-effective amendment to the Exchange
Offer Registration Statement containing the information required by
Regulation S-K Items 507 and/or 508, as applicable, in satisfaction of
its obligations under this paragraph (a) with respect thereto, and any
such Exchange Offer Registration Statement, as so amended, shall be
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referred to herein as, and governed by the provisions herein applicable
to, a Shelf Registration Statement.
(b) The Company shall use its reasonable best efforts to cause
the Shelf Registration Statement to be declared effective under the
Securities Act on or prior to the 90th calendar day after the Shelf
Registration Statement is filed under this Section 3 and to keep such
Shelf Registration Statement continuously effective in order to permit
the Prospectus contained therein to be usable by Holders for a period
of two years from the date the Shelf Registration Statement is declared
effective by the Commission or such shorter period that will terminate
when all the Initial Notes or Exchange Notes, as applicable, covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the
"SHELF REGISTRATION PERIOD"). The Company shall be deemed not to have
used its reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if the Company
voluntarily takes any action that would result in Holders of Notes
covered thereby not being able to offer and sell such Notes during that
period, unless (i) such action is required by applicable law, (ii) the
Company complies with this Agreement or (iii) such action is taken by
the Company or any Guarantors in good faith and for valid business
reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so long
as the Company promptly thereafter complies with the requirements of
Section 4(m) hereof, if applicable.
4. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Company shall, within a reasonable time prior to the
filing of any Registration Statement, any Prospectus, any amendment to
a Registration Statement or amendment or supplement to a Prospectus or
any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel, upon their request) and make
such representatives of the Company as shall be reasonably requested by
the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Majority Holders or their counsel)
available for discussion of such document, and shall not at any time
file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or any document which is to be incorporated
by reference into a Registration Statement or a Prospectus, of which
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) shall object, except for any
amendment or supplement or document (a copy of which has been
previously furnished to the Initial Purchasers and their counsel (and,
in the case of a Shelf Registration Statement, the Majority Holders and
their counsel, upon their request)) which counsel to the Company shall
advise the Company, in the form of a written opinion, is required in
order to comply with applicable law; the Initial Purchasers agree that,
if they receive timely notice and drafts under this clause (a), they
will not take actions or make objections pursuant to this clause (a)
such that the Company is unable to comply with its obligations under
Section 2.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment
thereto and any Prospectus contained therein and any amendment
or supplement thereto complies in all material respects with
the Securities Act and the rules and regulations thereunder;
(ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a
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material fact required to be stated therein or necessary to make the
statements therein not misleading; and
(iii) any Prospectus forming part of any Registration
Statement, including any amendment or supplement to such
Prospectus, does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchasers and,
in the case of a Shelf Registration Statement, the Holders of Initial
Notes covered thereby, and, if requested by the Initial Purchasers or
any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Company shall advise the
Initial Purchasers and, in the case of a Shelf Registration Statement,
the Holders of Initial Notes or Exchange Notes covered thereby, and, in
the case of an Exchange Offer Registration Statement, any Exchanging
Dealer that has provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by the
Initial Purchasers or any such Holder or Exchanging Dealer, confirm
such advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Initial Notes or Exchange Notes included
therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the Registration
Statement or the Prospectus does not include an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied
by an instruction to suspend the use of the Prospectus until
the requisite changes have been made).
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Notes covered
by any Shelf Registration Statement that so requests, without charge,
at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto.
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Notes covered by any Shelf Registration
Statement, without charge, as many copies of the
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Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Notes in connection with the offering and sale of
the Notes covered by the Prospectus or any amendment or supplement
thereto.
(g) The Company shall furnish to each Exchanging Dealer that
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents
incorporated by reference therein and, if the Exchanging Dealer so
requests in writing, all exhibits thereto.
(h) The Company shall, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge, as
many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such
Exchanging Dealer in connection with a sale of Exchange Notes received
by it pursuant to the Exchange Offer; and the Company consents to the
use of the Prospectus or any amendment or supplement thereto by any
such Exchanging Dealer, as provided in Section 2(e) above.
(i) Each Holder of Notes and each Exchange Dealer agrees by
its acquisition of such Notes by a Holder or Exchange Notes to be sold
by such Exchange Dealer, as the case may be, that, upon actual receipt
of any notice from the Company (x) of the happening of any event of the
kind described in paragraph (c)(2)(i), (c)(2)(ii), or (c)(2)(iii) of
this Section 4, or (y) that the Board of Directors of the Company has
resolved that the Company has a bona fide business purpose for doing
so, then the Company may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration
Statement (if not then filed or effective, as applicable) and shall not
be required to maintain the effectiveness thereof or amend or
supplement the Exchange Offer Registration Statement or the Shelf
Registration Statement, in all cases, for a period (a "DELAY PERIOD")
expiring upon the earlier to occur ------------ of (i) in the case of
the immediately preceding clause (x), such Holder's or Exchange
Dealer's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4(m) hereof, or until it is advised
in writing by the Company that the use of the applicable Prospectus may
be resumed, and has received copies of any amendments or supplements
thereto, or (ii) in the case of the immediately preceding clause (y),
the date which is the earlier of (A) the date on which such business
purpose ceases to interfere with the Company's obligations to file or
maintain the effectiveness of any such Registration Statement pursuant
to this Agreement or (B) 60 days after the Company notifies the Holders
of such good faith determination. There shall not be more than 60 days
of Delay Periods during any 12-month period. Each of the Exchange Offer
Registration Period or the Shelf Registration Period, if applicable,
shall be extended by the number of days during any Delay Period. Any
Delay Period will not alter the obligations of the Company to pay
Liquidated Damages under the circumstances set forth in Section 5
hereof.
(j) Prior to the Exchange Offer or any other offering of
Initial Notes or Exchange Notes pursuant to any Registration Statement,
the Company shall register or qualify or cooperate with the Holders of
Notes included therein and their respective counsel in connection with
the registration or qualification of such Initial Notes or Exchange
Notes for offer and sale under the securities or blue sky laws of such
states as any such Holders reasonably request in writing and do any and
all other acts or things necessary or advisable to enable the offer and
sale in such states of the Notes covered by such Registration
Statement; PROVIDED, HOWEVER, that the Company will not be required to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not then so qualified, to file any general
consent to service of process or to take any action that would subject
it to general service of process in any such jurisdiction where it is
not then so subject or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject.
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(k) The Company shall issue, upon the request of any Holder of
Initial Notes covered by the Shelf Registration Statement, Exchange
Notes, having an aggregate principal amount equal to the aggregate
principal amount of Initial Notes surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder; such Exchange
Notes to be registered in the name of such Holder or in the name of the
purchaser(s) of such Exchange Notes, as the case may be; in return, the
Initial Notes held by such Holder shall be surrendered to the Company
for cancellation.
(l) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing
Initial Notes or Exchange Notes to be sold pursuant to any Registration
Statement free of any restrictive legends and in denominations of
$1,000 or an integral multiple thereof and registered in such names as
Holders may request prior to sales of Initial Notes or Exchange Notes
pursuant to such Registration Statement.
(m) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 4, the Company shall promptly prepare and
file a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or any other required
document so that, as thereafter delivered to purchasers of the Initial
Notes or Exchange Notes included therein, the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and, in the
case of a Shelf Registration Statement, notify the Holders to suspend
use of the Prospectus as promptly as practicable after the occurrence
of such an event. Notwithstanding the foregoing, the Company shall not
be required to amend or supplement a Shelf Registration Statement, any
related Prospectus or any document incorporated therein by reference,
for a period not to exceed an aggregate of 30 days in any calendar
year, if the Company determines in its good faith judgment that the
disclosure of such event at such time would have a material adverse
effect on the business, operations, or prospects of the Company or the
disclosure otherwise related to a pending material business transaction
that has not yet been publicly disclosed.
(n) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Initial Notes or Exchange Notes, as the case may be, registered under
such Registration Statement, and provide the Trustee with certificates
for such Initial Notes or Exchange Notes, in a form eligible for
deposit with The Depository Trust Company.
(o) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable
after the effective date of the applicable Registration Statement an
earnings statement meeting the requirements of Rule 158 under the
Securities Act.
(p) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act not later than the effective date of the
first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders of
Initial Notes or Exchange Notes to effect such changes to the Indenture
as may be required for such Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and to execute, and use its
best efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner.
(q) The Company may require each Holder of Notes to be sold
pursuant to any Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of such
Initial Notes as the Company may from time to time reasonably require
for inclusion in such Registration Statement.
(r) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing
10
Underwriters, if any, and Majority Holders reasonably agree should be
included therein, and shall make all required filings of such
Prospectus supplement or post-effective amendment promptly upon
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(s) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite
or to facilitate the registration or the disposition of any Initial
Notes included therein, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification
provisions and procedures no less favorable than those set forth in
Section 6 (or such other provisions and procedures acceptable to the
Majority Holders and the Managing Underwriters, if any) with respect to
all parties to be indemnified pursuant to Section 6.
(t) In the case of any Shelf Registration Statement, the
Company shall:
(i) make reasonably available for inspection by the
Holders of Notes to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other
agent retained by the Holders or any such underwriter all
relevant financial and other records, pertinent corporate
documents and properties of the Company and any of its
subsidiaries;
(ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence
examinations and make such representatives of the Company as
shall be reasonably requested by the Initial Purchasers or
Managing Underwriters, if any, available for discussion of any
such Registration Statement; PROVIDED, HOWEVER, that any
non-public information that is designated in writing by the
Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information
becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality
other than as a result of a disclosure of such information by
any such Holder, underwriter, attorney, accountant or agent;
(iii) make such representations and warranties to the
Holders of Notes registered thereunder and the underwriters,
if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar underwritten offerings
as may be reasonably requested by them;
(iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling
Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in similar
underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(v) obtain "COLD COMFORT" letters and updates thereof
from the independent certified public accountants of the
Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the
underwriters, if any, and use reasonable efforts to have such
letter addressed to the selling Holders of Notes registered
thereunder (to the extent consistent with Statement on
Auditing Standards No. 72 of the American Institute of
Certified Public Accountants (AICPA)
11
("SAS 72")), in customary form and covering matters of the
type customarily covered in "COLD COMFORT" letters in
connection with similar underwritten offerings,
or if the provision of such "COLD COMFORT" letters is not
permitted by SAS 72 or if requested by the
Initial Purchasers or their counsel in lieu of a "COLD
COMFORT" letter, an agreed-upon procedures letter
under Statement on Auditing Standards No. 75 of the AICPA,
covering matters requested by the Initial Purchasers or their
counsel; and
(vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, and customarily delivered in
similar offerings, including those to evidence compliance with
Section 4(m) and with any conditions contained in the
underwriting agreement or other agreement entered into by the
Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 4(t) shall be performed at (A) the effectiveness of such Shelf
Registration Statement and each post-effective amendment thereto and (B) each
closing under any underwriting or similar agreement as and to the extent
required thereunder.
(u) The Company shall, in the case of a Shelf Registration, use its
best efforts to cause all Notes to be listed on any securities exchange or any
automated quotation system on which similar securities issued by the Company are
then listed if requested by the Majority Holders, to the extent such Notes
satisfy applicable listing requirements.
5. REGISTRATION EXPENSES; REMEDIES.
(a) The Company shall bear all expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 4 hereof, including
without limitation: (i) all Commission, stock exchange or National Association
of Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Notes or Initial Notes), (iii) all expenses of any persons in preparing
or assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) the fees
and disbursements of the Trustee and its counsel, (v) the fees and disbursements
of counsel for the Company and, in the case of a Shelf Registration Statement,
the fees and disbursements of one counsel for the Holders (which counsel shall
be selected by the Majority Holders and which counsel may also be counsel for
the Initial Purchasers) and in the case of any Exchange Offer Registration
Statement, the fees and expenses of counsel to the Initial Purchasers acting in
connection therewith and (vi) the fees and disbursements of the independent
public accountants of the Company, including the expenses of any special audits
or "COLD COMFORT" letters required by or incident to such performance and
compliance, but excluding fees and expenses of counsel to the underwriters
(other than fees and expenses set forth in clause (ii) above) or the Holders
and underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Notes by a Holder.
(b) If any of the following occurs:
(i) the Company fails to file the Exchange Offer Registration
Statement, on or before the 90th calendar day following the Closing
Date or, if that day is not a Business Day, then the next day that is a
Business Day;
(ii) the Exchange Offer Registration Statement is not declared
effective by the Commission on or before the 150th calendar day
following the Closing Date, or if that day is not a Business Day, then
the next day that is a Business Day (the "Effectiveness Target Date");
12
(iii) the exchange offer is not completed or the Shelf
Registration Statement s not declared effective, in either case, on or
before the 180th calendar day following the Closing Date, or if that
day is not a Business Day, then the next day that is a Business Day; or
(iv) the Shelf Registration Statement is required to be
filed but is not declared effective or is declared effective but
thereafter ceases to be effective or usable in connection with the
resales of Transfer Restricted Securities during the periods specified
in this Agreement (each such event referred to in clauses (i) through
(iv) above, a "REGISTRATION DEFAULT"),
then the Company will pay liquidated damages ("LIQUIDATED DAMAGES") to
each holder of Initial Notes or Exchange Notes. With respect to the
first 90-day period immediately following the occurrence of the first
Registration Default, the interest rate borne by the Notes will be
increased by 0.25% per annum over the stated rate for the Notes upon
the occurrence of a registration default. This rate will continue to
increase by 0.25% per annum over the stated rate of the Notes with
respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum increase in the interest rate
borne by the Notes as Liquidated Damages for all Registration Defaults
of 1.00% per annum over the stated rate of the Notes.
(c) The Company shall pay all accrued Liquidated Damages on
each Damages Payment Date to the Global Note Holder by wire transfer of
immediately available funds and to holders of certificated notes by
wire transfer to the accounts specified by them or by mailing checks to
their registered addresses if no such accounts have been specified.
(d) Following the cure of all Registration Defaults, the
accrual of Liquidated Damages will cease.
(e) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company acknowledges that any failure
by the Company to comply with its obligations under Sections 2 and 3
hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 2 and 3
hereof.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with any Registration Statement, the Company
agrees to indemnify and hold harmless each Holder of Notes covered
thereby (including the Initial Purchasers and, with respect to any
Prospectus delivery as contemplated by Sections 2(e) and 4(h) hereof,
each Exchanging Dealer) the directors, officers, employees and agents
of such Holder and each person who controls such Holder within the
meaning of either the Securities Act or the Exchange Act, against any
and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act,
the Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in such Registration Statement as originally filed or in
any amendment thereof, or in any preliminary Prospectus or Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage or liability
(or action in respect thereof); PROVIDED, HOWEVER, that the Company
will not be liable in any case to the extent that any such loss, claim,
13
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any indemnified
party specifically for inclusion therein; PROVIDED further, HOWEVER,
that the Company will not be liable in any case with respect to any
untrue statement or omission or alleged untrue statement or omission
made in any preliminary Prospectus or Prospectus, or in any amendment
thereof or supplement thereto to the extent that any such loss, claim,
damage or liability (or action in respect thereof) resulted from the
fact that any indemnified party sold Notes or Exchange Notes to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus as then amended or
supplemented, if the Company had previously complied with the
provisions of Section 4(c)(2) and 4(f) or 4(h) hereof and if the untrue
statement contained in or omission from such preliminary Prospectus or
Prospectus was corrected in the Prospectus as then amended or
supplemented. This indemnity agreement will be in addition to any
liability that the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses
of, as provided in Section 6(d) hereof, any underwriters of Notes
registered under a Shelf Registration Statement, their employees,
officers, directors and agents and each person who controls such
underwriters on the same basis as that of the indemnification of the
Initial Purchasers and the selling Holders provided in this Section
6(a) and shall, if requested by any Holder, enter into an underwriting
agreement reflecting such agreement, as provided in Section 4(s)
hereof.
(b) Each Holder of Notes covered by a Registration Statement
(including the Initial Purchasers and, with respect to any Prospectus
delivery as contemplated by Sections 2(e) and 4(h) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless (i)
the Company, (ii) each of the directors of the Company, (iii) each of
the officers of the Company who signs such Registration Statement and
(iv) each Person who controls the Company within the meaning of either
the Securities Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each such Holder, but only with
respect to written information furnished to the Company by or on behalf
of such Holder specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in
addition to any liability that any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 6, notify the
indemnifying party in writing of the claim or commencement of that
action; but the failure so to notify the indemnifying party (i) will
not relieve the indemnifying party from liability under paragraph (a)
or (b) above unless and to the extent it has been materially prejudiced
by such failure and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel
(including local counsel) of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); PROVIDED, HOWEVER, that such
counsel shall be reasonably satisfactory to the indemnified party.
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 under
this Section 6 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, HOWEVER, that any
indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel has been specifically
authorized by the indemnifying party in writing, or (ii) such
indemnified party shall have been advised by such counsel that there
may one or more legal defenses available to it that are different from
or additional to those
14
available to the indemnifying party and in the reasonable judgment of
such counsel it is advisable for such indemnified party to employ
separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory
to the indemnified party, in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party. It is
understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm (in
addition to any local counsel) at any time for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they
are incurred. An indemnifying party will not, (i) without the prior
written consent of the indemnified parties (which consent shall not be
unnecessarily withheld) settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding or (ii) be liable for any settlement of any
such action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability
by reason of such settlement or judgment.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending the same) (collectively "LOSSES") to which such indemnified
party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial
Placement and the Registration Statement that resulted in such Losses;
PROVIDED, HOWEVER, that in no case shall the Initial Purchasers or any
subsequent Holder of any Security or Exchange Security be responsible,
in the aggregate, for any amount in excess of the purchase discount or
commission applicable to such Security, or in the case of an Exchange
Note, applicable to the Security that was exchangeable into such
Exchange Security, as set forth on the cover page of the Offering
Memorandum, nor shall any underwriter be responsible for any amount in
excess of the underwriting discount or commission applicable to the
Notes purchased by such underwriter under the Registration Statement
that resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of such indemnifying party, on the one
hand, and such indemnified party, on the other hand, in connection with
the statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the
Initial Placement (before deducting expenses) as set forth on the cover
page of the Offering Memorandum. Benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts
and commissions as set forth on the cover page of the Offering
Memorandum, and benefits received by any other Holders shall be deemed
to be equal to the value of receiving Notes or Exchange Notes, as
applicable, registered under the Securities Act. Benefits received by
any underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement that resulted
in such Losses. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand. The parties agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that did not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of
15
this paragraph (d), 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. For purposes of this Section 6, each
person who controls a Holder within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee
and agent of such Holder shall have the same rights to contribution as
such Holder, and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution
as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Holder or the Company or any of the officers, directors or controlling
persons referred to in Section 6 hereof, and will survive the sale by a
Holder of Notes covered by a Registration Statement.
7. RULE 144A.
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted 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 reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
9. SELECTION OF UNDERWRITERS.
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering; PROVIDED that, that such investment bankers and managers must be
reasonably satisfactory to the Company.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENT. Neither the Company nor any of
the Guarantors has, as of the date hereof, entered into, nor shall any
of them, on or after the date hereof, enter into, any agreement that
conflicts with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of the Holders of at least a
majority of the then outstanding aggregate principal amount of Notes
(or, after the consummation of any Exchange Offer in accordance with
Section 2 hereof, of Exchange Notes); PROVIDED that, with
respect to any matter that directly or indirectly affects the rights of
the Initial Purchasers hereunder, the Company
16
shall obtain the written consent of the Initial Purchasers.
Notwithstanding the foregoing (except the foregoing proviso), a waiver
or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Initial
Notes or Exchange Notes are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of
other Holders may be given by the Majority Holders, determined on the
basis of Notes being sold rather than registered under such
Registration Statement.
(c) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the most current address given
by such Holder to the Company in accordance with the
provisions of this Section 10(c), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Trustee, with a copy in like manner to UBS
Warburg LLC;
(ii) if to the Initial Purchasers, at UBS Warburg
LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: [
], with a copy to Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxx; and
(iii) if to the Company and the Guarantors, at
Res-Care, Inc., 00000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000,
Attention: L. Xxxxx Xxxxx, with a copy to Xxxxx Xxxxx Xxxx
LLC, 000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, XX 00000,
Attention: Xxxx X. XxxXxxxxx.
All such notices and communications shall be deemed to have
been duly given when received. The Initial Purchasers, on the one hand,
or the Company and the Guarantors, on the other, by notice to the other
party or parties may designate additional or different addresses for
subsequent notices or communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including, without the need for an express assignment or
any consent by the Company and the Guarantors thereto, subsequent
Holders of Initial Notes and/or Exchange Notes. The Company and the
Guarantors hereby agree to extend the benefits of this Agreement to any
Holder of Initial Notes and/or Exchange Notes and any such Holder may
specifically enforce the provisions of this Agreement as if an original
party hereto.
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
Agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
17
(i) INITIAL NOTES HELD BY THE COMPANY, ETC. Whenever the
consent or approval of Holders of a specified percentage of the
aggregate principal amount of Initial Notes or Exchange Notes is
required hereunder, Initial Notes or Exchange Notes, as applicable,
held by the Company or its Affiliates (other than subsequent Holders of
Initial Notes or Exchange Notes if such subsequent Holders are deemed
to be Affiliates solely by reason of their holdings of such Initial
Notes or Exchange Notes) shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
18
Please confirm that the foregoing correctly sets forth the
agreements under the Registration Rights Agreement between the Company, the
Guarantors and you.
Very truly yours,
RES-CARE, INC.
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Executive Vice President of Finance and
Administration and CFO
ALTERNATIVE XXXXXXX, XXX.
BALD EAGLE ENTERPRISES, INC.
CAPITAL TX INVESTMENTS, INC.
CATX PROPERTIES, INC.
CNC/ACCESS, INC.
COMMUNITY ADVANTAGE, INC.
COMMUNITY ALTERNATIVES ILLINOIS, INC.
COMMUNITY ALTERNATIVES INDIANA, INC.
COMMUNITY ALTERNATIVES KENTUCKY, INC.
COMMUNITY ALTERNATIVES MISSOURI, INC.
COMMUNITY ALTERNATIVES NEBRASKA, INC.
COMMUNITY ALTERNATIVES TEXAS PARTNER, INC.
COMMUNITY ALTERNATIVES VIRGINIA, INC.
EDUCARE COMMUNITY LIVING-TEXAS LIVING CENTERS, INC.
J. & J. CARE CENTERS, INC.
NORMAL LIFE, INC.
PEOPLESERVE, INC.
RAISE GEAUGA, INC.
RES-CARE ALABAMA, INC.
RES-CARE CALIFORNIA, INC. D/B/A RCCA SERVICES
RES-CARE ILLINOIS, INC.
RES-CARE KANSAS, INC.
RES-CARE NEW JERSEY, INC.
RES-CARE NEW MEXICO, INC.
RES-CARE OHIO, INC.
RES-CARE OKLAHOMA, INC.
RES-CARE OTHER OPTIONS, INC.
RES-CARE PREMIER, INC.
RES-CARE TENNESSEE, INC.
19
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RES-CARE TRAINING TECHNOLOGIES, INC.
RES-CARE WASHINGTON, INC.
ROCKCREEK, INC.
RSCR CALIFORNIA, INC.
RSCR INLAND, INC.
RSCR WEST VIRGINIA, INC.
SOUTHERN HOME CARE SERVICES, INC.
TANGRAM REHABILITATION NETWORK, INC.
TEXAS HOME MANAGEMENT, INC.
THM HOMES, INC.
XXXXXXXX GROUP HOMES, INC.
XXXXX MANAGEMENT, INC.
BOLIVAR DEVELOPMENTAL TRAINING CENTER, INC.
BOLIVAR ESTATES, INC.
EBENEZER ESTATES, INC.
FORT XXXXX ESTATES, INC.
HILLSIDE ESTATES, INC.
HYDESBURG ESTATES, INC.
INDIVIDUALIZED SUPPORTED LIVING, INC.
MEADOW LANE ESTATES, INC.
MISSOURI PROGRESSIVE SERVICES, INC.
OAK WOOD SUITES OF BOLIVAR, INC.
OAKVIEW ESTATES OF BOLIVAR, INC.
XXXXXX XXXXX XXXXXXX, XXX.
XXXXX XXXXX XXXXXXX, INC.
SHA-REE ESTATES, INC.
SKYVIEW ESTATES, INC.
UPWARD BOUND, INC.
XXXXXXX ESTATES, INC.
CAREERS IN PROGRESS, INC.
EDUCARE COMMUNITY LIVING-NORMAL LIFE, INC.
NORMAL LIFE OF CALIFORNIA, INC.
NORMAL LIFE OF CENTRAL INDIANA, INC.
NORMAL LIFE FAMILY SERVICES, INC.
NORMAL LIFE OF GEORGIA, INC.
NORMAL LIFE OF KENTUCKY, INC.
NORMAL LIFE OF LAFAYETTE, INC.
NORMAL LIFE OF LAKE XXXXXXX, INC.
NORMAL LIFE OF LOUISIANA, INC.
NORMAL LIFE OF SOUTHERN INDIANA, INC.
RES-CARE FLORIDA, INC.
EDUCARE COMMUNITY LIVING CORPORATION-AMERICA
PSI HOLDINGS, INC.
VOCA CORPORATION OF AMERICA
VOCA RESIDENTAL SERVICES, INC.
B.W. J. OPPORTUNITY CENTERS, INC.
THE CITADEL GROUP, INC.
EDUCARE COMMUNITY LIVING CORPORATION-GULF COAST
EDUCARE COMMUNITY LIVING CORPORATION-MISSOURI
EDUCARE COMMUNITY LIVING CORPORATION-NEVADA
EDUCARE COMMUNITY LIVING CORPORATION-NEW MEXICO
20
EDUCARE COMMUNITY LIVING CORPORATION-NORTH CAROLINA
EDUCARE COMMUNITY LIVING CORPORATION-TEXAS
VOCA CORP.
VOCA CORPORATION OF FLORIDA
VOCA CORPORATION OF INDIANA
VOCA CORPORATION OF MARYLAND
VOCA CORPORATION OF NEW JERSEY
VOCA CORPORATION OF NORTH CAROLINA
VOCA CORPORATION OF OHIO
VOCA CORPORATION OF WASHINGTON, D.C.
VOCA CORPORATION OF WEST VIRGINIA, INC.
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Assistant Treasurer
THE ACADEMY FOR INDIVIDUAL EXCELLENCE, INC.
ALTERNATIVE YOUTH SERVICES, INC.
RES-CARE AVIATION, INC.
GENERAL HEALTH CORPORATION
YOUTHTRACK, INC.
EMPLOY-ABILITY UNLIMITED, INC.
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Treasurer
EDUCARE COMMUNITY LIVING LIMITED PARTNERSHIP
By: Community Alternatives Texas Partner, Inc.
its General Partner
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Assistant Treasurer
NORMAL LIFE OF INDIANA
By: Normal Life of Central Indiana, Inc.
one of its General Partners
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Assistant Treasurer
and
21
By: Normal Life of Central Indiana, Inc.
the other General Partner
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Assistant Treasurer
VOCA OF INDIANA, LLC, a limited liability company
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Assistant Treasuer
CREATIVE NETWORKS, LLC
By: /s/ L. Xxxxx Xxxxx
Name: L. Xxxxx Xxxxx
Title: Manager
22
The foregoing Agreement is hereby
accepted as of the date first above written.
By UBS WARBURG LLC
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxx X'Xxxxx
Name: Xxx X'Xxxxx
Title: Director
XXXXXX BROTHERS INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director
23
ANNEX A
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "UNDERWRITER" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year
after the Expiration Date, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "PLAN OF
DISTRIBUTION."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own
account in exchange for Notes, where such Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "PLAN OF DISTRIBUTION."
ANNEX C
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business one year after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until such date all dealers effecting transactions in the Exchange
Notes may be required to deliver a prospectus.
ANNEX D
If the undersigned is a broker-dealer that will receive
Exchange Notes for its own account in exchange for Notes, it represents that the
Notes to be exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "UNDERWRITER" within the meaning of
the Securities Act.
