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EXHIBIT 99.8
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as
of May 31, 2000, by and between ALTERRA HEALTHCARE CORPORATION, a Delaware
corporation (the "Company"), and the other parties listed on the signature page
hereto (collectively referred to as the "Investors" and each individually as an
"Investor").
RECITALS:
A. The Company and certain of the Investors have entered into
that certain Purchase Agreement dated as of April 26, 2000, as amended (the
"Purchase Agreement") providing, among other things, for the purchase by certain
of the Investors of the Company's Series A 9.75% Convertible Pay-In-Kind
Preferred Stock, stated value $4.00 per share (the "Series A Stock"),
$42,500,000 face amount of the Company's Series A 9.75% Convertible Pay-In-Kind
Debentures (the "Series A Debentures"), and a minimum of $90,426,000 face amount
of the Company's Series B 9.75% Convertible Pay-In-Kind Debentures (the "Series
B Debentures") and for the issuance by the Company to certain Investors of
$35,096,000 face amount of the Company's Series C 9.75% Convertible Pay-In-Kind
Debentures ("Series C Debentures" and, together with the Series A Debentures and
the Series B Debentures, collectively, the "Debentures"). Capitalized terms
defined in the Purchase Agreement and not otherwise defined herein are used
herein with the same meanings as defined in the Purchase Agreement.
B. The Company desires to grant to the Investors registration
rights with respect to the Securities, and the Investors desires to receive such
registration rights, all in accordance with the terms of this Agreement.
C. This Agreement is the Registration Rights Agreement referred
to in the Purchase Agreement. The execution and delivery of this Agreement by
the Company and the Investors is a condition to the Closing of the transactions
contemplated by the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. REGISTRABLE SECURITIES. For purposes of this Agreement, the
term "Registrable Securities" means each Debenture, each share of Series A
Stock, each share of Common Stock into which the shares of Series A Stock and
Series A Debentures and Series C Debentures are convertible, and each share of
Series B Stock into which the Series B Debentures are convertible and any
Security issued with respect thereto upon any stock dividend, split or similar
event, until, in the case of such Registrable Securities, (i) it is effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement covering it; (ii) it is salable by the holder thereof
pursuant to Rule 144(k) promulgated under the Securities Act; or (iii) it is
sold to
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the public pursuant to Rule 144 promulgated under the Securities Act, and, as a
result of an event or circumstance described in any of the foregoing clauses (i)
through (iii), the legends with respect to transfer restrictions required under
the Indenture or the Purchase Agreement (other than any such legends required
solely as the consequences of the fact that the Registrable Securities are owned
by, or were previously owned by, the Company or an Affiliate of the Company) are
removed or removable in accordance with the terms of the Indenture or the
Purchase Agreement.
2. DEMAND REGISTRATIONS.
2A. REQUEST FOR REGISTRATION.
(i) At any time and from time to time after the
October 31, 2000, the holders of at least 51% of the Registrable Securities then
outstanding may request registration under the Securities Act of all or any part
of their Registrable Securities (each, a "Demand Registration"), subject to the
terms and conditions of this Agreement. Any request (a "Registration Request")
for the Demand Registration shall specify (a) the approximate number of
Registrable Securities requested to be registered, and (b) the intended method
of distribution of such securities.
(ii) Subject to subsection (i) above and
paragraph 4, the holders of Registrable Securities will be entitled to request
up to two (2) Demand Registrations at any time and from time to time as provided
herein.
(iii) A registration will not count as one of the
Demand Registrations paid for by the Company (as provided in paragraph 5B)
unless the holders of the Registrable Securities are able to register and sell
at least 50% of the Registrable Securities requested to be included in such
registration.
(iv) The Company will not include in any Demand
Registration any securities other than shares of Registrable Securities and
securities to be registered for offering and sale on behalf of the Company
without the prior written consent of the holders of a majority of the shares of
Registrable Securities initially requesting registration. If the managing
underwriter(s), if any, of the offering to be effected pursuant to a Demand
Registration advise the Company in writing that in their opinion the number of
shares of Registrable Securities and, if permitted hereunder, other securities
in such offering, exceeds the number of Registrable Securities and other
securities, if any, which can be sold in an orderly manner in such offering
within a price range acceptable to the holders of a majority of the Registrable
Securities initially requesting registration, the Company will include in such
registration, prior to the inclusion of any securities which are not Registrable
Securities, the number of Registrable Securities requested to be included
pursuant to paragraphs 2A(i) and 3(A) which in the opinion of such underwriters
can be sold in an orderly manner within the price range of such offering, pro
rata among the respective holders thereof on the basis of the number of
Registrable Securities that each such holder has requested the Company to
include in such registration.
2B. SELECTION OF UNDERWRITER. The holders of a majority
of the then outstanding Registrable Securities proposed to be registered will
have the right to select the
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managing underwriter or underwriters to manage the offering, subject to the
Company's approval, which will not be unreasonably withheld, provided that the
managing underwriter or underwriters shall be the firm or firms that managed the
Company's most recently completed underwritten public offering of Common Stock
unless the holders of a majority of the then outstanding Registrable Securities
proposed to be registered shall object to such firm or firms for reasons related
to the ability of such firm or firms to effectively manage the offering and the
Company may consent to the selection of such other managing underwriter or
underwriters in such event.
3. PIGGYBACK REGISTRATIONS.
3A. RIGHT TO PIGGYBACK. If the Company proposes to
register any of its securities under the Securities Act (other than registration
solely in connection with an employee benefit or stock ownership plan or the
resale of the Company's convertible debentures issued prior to the date of this
Agreement or a registration relating solely to a transaction to which Rule 145
(as promulgated under the Securities Act) applies) and the registration form to
be used may be used for the registration of Registrable Securities (a "Piggyback
Registration"), the Company will give prompt written notice to all holders of
Registrable Securities of its intention to effect such a registration (each a
"Piggyback Notice"). Subject to subparagraphs 3B and 3C below, the Company will
include in such registration all shares of Registrable Securities which holders
of Registrable Securities request the Company to include in such registration by
written notice given to the Company within fifteen (15) days after the date of
sending of the Company's notice, subject to the terms and provisions of this
Section 3.
3B. PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration relates to an underwritten public offering of equity securities by
the Company and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the Company, the Company will
include in such registration (i) first, the securities proposed to be sold by
the Company, and (ii) second, the Registrable Securities requested to be
included in such registration pro rata among the holders of such Registrable
Securities on the basis of the Registrable Securities owned by each such holder.
3C. PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration relates to an underwritten public offering of equity securities by
holders of the Company's securities and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
initially requesting such registration, the Company will include in such
registration (i) first, the Registrable Securities requested to be included in
such registration pro rata among the holders of such Registrable Securities on
the basis of the number of the Registrable Securities owned by each such holder;
and (ii) second, securities other than Registrable Securities..
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in
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accordance with the intended method of distribution thereof and will as
expeditiously as possible:
(i) prepare and file with the Securities and
Exchange Commission a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective; provided, that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will furnish to
the counsel selected by the holders of a majority of the Registrable Securities
covered by such registration statement copies of all such documents proposed to
be filed, which documents will be subject to the review of such counsel;
(ii) prepare and file with the Securities and
Exchange Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective for a period of not less than one
hundred twenty days (120) in the event of an offering to be made pursuant to
Rule 415 under the Securities Act (or such lesser time as necessary to permit
the holders to complete the distribution described in such registration
statement), and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of distribution by the
sellers thereof set forth in such registration statement;
(iii) furnish to each seller of Registrable
Securities such number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such seller
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(iv) use its best efforts to register or qualify
such Registrable Securities under the securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, provided, that the Company will not be required
(i) to qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) to subject
itself to taxation in any such jurisdiction or (iii) to consent to general
service of process in any such jurisdiction;
(v) notify each seller of such Registrable
Securities, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein not misleading, and, at the request of any such seller, the Company will
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the Investors of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading; provided, however, the
Company shall not be obligated to prepare and furnish any such prospectus
supplements or amendments relating to any material nonpublic information during
any time period not to exceed one hundred twenty (120) days (such time period,
the "Black-
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Out Period") during which the Board of Directors of the Company has determined
that, for good business reasons, the disclosure of such material nonpublic
information during such Black-Out Period is contrary to the best interests of
the Company in the circumstances and is not otherwise required under applicable
law (including applicable securities laws), in which event the Company shall
advise each holder of Registerable Securities covered by such registration
statement that such prospectus requires updating and, accordingly, should not be
used pending further amendment, and promptly following the expiration of such
Black-Out Period, the Company shall comply with the provisions of this paragraph
4(v).
(vi) cause all such Registrable Securities to be
listed on each securities exchange on which similar securities issued by the
Company are then listed and to be qualified for trading on each system on which
similar securities issued by the Company are from time to time qualified;
(vii) provide a transfer agent and registrar for
all such Registrable Securities not later than the effective date of such
registration statement and thereafter maintain such a transfer agent and
registrar;
(viii) enter into such customary agreements
(including underwriting agreements in customary form) and take all such other
actions as the holders of a majority of the shares of Registrable Securities
being sold or the underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities;
(ix) make available for inspection by any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information reasonably
requested by any such underwriter, attorney, accountant or agent in connection
with such registration statement;
(x) otherwise use its best efforts to comply
with all applicable rules and regulations of the Securities and Exchange
Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve (12)
months beginning with the first day of the Company's first full calendar quarter
after the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(xi) permit any holder of Registrable Securities
which might be deemed, in the sole and exclusive judgment of such holder, to be
an underwriter or a controlling person of the Company, to participate in the
preparation of such registration or comparable statement and to require the
insertion therein of material, furnished to the Company in writing, which in the
reasonable judgment of such holder and its counsel should be included;
(xii) in the event of the issuance of any stop
order suspending the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any Registrable Securities included in such
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registration statement for sale in any jurisdiction, the Company will use its
reasonable best efforts promptly to obtain the withdrawal of such order; and
(xiii) furnish to each Investor a copy, or upon
request, a signed counterpart, addressed to such Investor (and the underwriters,
if any) of (a) an opinion of counsel for the Company, dated the effective date
of such registration statement (or, if such registration includes an
underwritten public offering, dated the date of closing under the underwriting
agreement), and (b) a "comfort" letter, dated the effective date of such
registration statement (or, if such registration includes an underwritten public
offering, dated the date of the closing under the underwriting agreement),
signed by the independent public accountants who have audited the Company's
financial statements included in such registration statement, covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and, in the case of the accountants' letter,
with respect to events subsequent to the date of such financial statements, as
are customarily covered in opinions of issuer's counsel and in accountants
letters delivered to the underwriters in underwritten public offerings of
securities and such other matters as such seller may reasonably request.
If any such registration or comparable statement refers to any holder
by name or otherwise as holder of any securities of the Company and if, in its
sole and exclusive judgment, such holder is or might be deemed to be a
controlling person of the Company, such holder shall have the right to require
(a) the inclusion in such registration statement of language, in form and
substance satisfactory to such holder, to the effect that the holding of such
securities by such holder is not to be construed as a recommendation by such
holder of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such holder will assist in meeting any
future financial requirements of the Company, or (b) in the event that such
reference to such holder by name or otherwise is not required by the Securities
Act or any similar federal statute then in force, the deletion of the reference
to such holder; provided, that with respect to this clause (b), such holder
shall furnish to the Company an opinion of counsel to such effect, which opinion
and counsel shall be reasonably satisfactory to the Company.
Notwithstanding anything herein to the contrary, the Company shall not
be required to effect a Demand Registration (i) within ninety (90) days
preceding the anticipated effective date of a public offering of the Common
Stock that has been approved by the Board of Directors at the time of the
Registration Request; (ii) within one hundred twenty (120) days of any
registration of the Common Stock under the Securities Act in which the holders
of the Registrable Securities had a right to participate pursuant to this
Agreement; or (iii) if the Board of Directors reasonably determines in good
faith that filing a registration statement would require the Company to disclose
material nonpublic information, which if disclosed would be contrary to the best
interests of the Company for good business reasons, and which is not required by
law to be disclosed, provided that the Company may only delay the filing of a
registration statement pursuant to this clause (iii) once per calendar year for
a period not to exceed one hundred twenty (120) days.
5. REGISTRATION EXPENSES.
5A. DEFINITION. The term "Registration Expenses" means all
expenses incident to the Company's performance of or compliance with this
Agreement, including,
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without limitation, all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, printing, messenger and delivery
expenses, and fees and expenses of counsel for the Company and all independent
certified public accountants, underwriters (excluding underwriting discounts and
commissions, which shall be paid by the selling stockholders out of the proceeds
of the offering) and other Persons retained by the Company.
5B. PAYMENT. The Company shall pay the Registration
Expenses in connection with two (2) Demand Registrations and any and all
Piggyback Registrations. In connection with each Demand Registration and each
Piggyback Registration, the Company will reimburse the holders of Registrable
Securities covered by such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities initially requesting such registration.
6. INDEMNIFICATION.
6A. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify, to the extent permitted by law, each holder of Registrable
Securities, its officers and directors and each Person who controls such holder
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto, or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such holder expressly for use therein or by such holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same; provided, that the obligations of the
Company hereunder shall not apply to amounts paid in settlement of any such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld). In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities unless otherwise
provided in the underwriting agreement.
6B. INDEMNIFICATION BY HOLDERS. In connection with any
registration statement in which a holder of Registrable Securities is
participating, each such holder will furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, will indemnify the Company, its directors and officers and
each Person who controls the Company (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses resulting from any
untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such holder
and stated to be specifically for use therein; provided, that
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(i) the obligation to indemnify will be individual to each holder and will be
limited to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement and (ii) the
obligations of such holder hereunder shall not apply to amounts paid in
settlement of any such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) if such settlement is effected without the consent
of such holder (which consent shall not be unreasonably withheld).
6C. NOTICE; DEFENSE OF CLAIMS. Any Person entitled to
indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any Indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
6D. CONTRIBUTION. If the indemnification provided for in
this part 6 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party, on the one hand, and of the indemnified party, on the
other, in connection with the statements or omissions that resulted in such
loss, liability, claim, damage, or expense, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. The obligation to contribute will be individual to each
holder of Registrable Securities and will be limited to the amount by which the
net amount of proceeds received by such holder from the sale of Registrable
Securities exceeds the amount of losses, liabilities, damages, and expenses
which such holder has otherwise been required to pay by reason of such
statements or omissions.
6E. SURVIVAL. The indemnification and contribution
provided for under this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party or
any officer, director or controlling Person of such indemnified party and will
survive the transfer of securities.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's
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securities on the basis provided in any underwriting arrangements approved by
the Person or Persons entitled hereunder to approve such arrangements, and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements; provided, that no holder of Registrable Securities
included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters other than
representations and warranties regarding such holder as are required by the
underwriters.
8. MISCELLANEOUS.
8A. NO INCONSISTENT AGREEMENTS. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
8B. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The
Company will not take any action, or permit any change to occur, with respect to
its securities for the purpose of materially and adversely affecting the ability
of the holders of Registrable Securities to include such Registrable Securities
in a registration undertaken pursuant to this Agreement or materially and
adversely affecting the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares); provided, that this subparagraph (b) shall not apply to
actions or changes with respect to the Company's business, earnings or revenues
where the effect of such actions or changes on the Registrable Securities is
merely incidental.
8C. NOTICES. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
personally or by facsimile transmission or by overnight delivery service or 72
hours after having been mailed by first class certified or registered mail,
return receipt requested, postage prepaid:
If to the Company, at Alterra Healthcare Corporation, 00000 Xxxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Chief Executive Officer, (fax:
(000) 000-0000), or at such other address or addresses as may have been
furnished in writing by the Company to the Investors, with a copy (which shall
not constitute notice) to Xxxxxx & Hardin LLP, 2700 International Tower, 000
Xxxxxxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx 00000, Attention:
Xxxx X. Xxxx, Esq. (fax (000) 000-0000).
If to an Investor, at its address set forth in the Purchase Agreement,
or at such other address or addresses as may have been furnished to the Company
in writing by such Investor.
Notices provided in accordance with this paragraph 8C shall be deemed
delivered upon personal delivery or two (2) business days after deposit in the
mail.
8D. REMEDIES. Any Person having rights under any
provision of this Agreement will be entitled to enforce such rights specifically
to recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. The parties hereto
agree and acknowledge that money damages may not be an adequate remedy for any
breach of the provisions of this Agreement and that any party may in its sole
discretion apply to any court of law or equity of competent jurisdiction
(without posting any
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bond or other security) for specific performance and for other injunctive relief
in order to enforce or prevent violation of the provisions of this Agreement.
8E. AMENDMENTS AND WAIVERS; REFERENCES TO SPECIFIED
PERCENTAGE OR MAJORITY OF REGISTRABLE SECURITIES. Except as otherwise provided
herein, no waiver, amendment, modification, termination or cancellation of this
Agreement, or of any of the terms or conditions hereof, shall be effective
unless made in writing signed by the Company and the holders of 66-2/3% of the
then outstanding Registrable Securities; provided, however, that no such waiver,
amendment, modification, termination or cancellation to the definition of
"Registrable Securities" or the priorities granted to the holders of the
Registrable Securities in Section 2A(iv), 3B or 3C shall be effective unless
made in writing signed by the holders of a majority of the then outstanding
Registrable Securities. All references in this Agreement either to a specified
percentage (e.g., 51%, 66 2/3%) or a "majority" of certain Registrable
Securities shall be determined based upon the original aggregate purchase price
of such Registrable Securities.
8F. SUCCESSORS AND ASSIGNS. This Agreement, and the
rights and obligations of each Investor hereunder, may be assigned by such
Investor to any person or entity to which shares of Registrable Securities are
transferred by such Investor, and such transferee shall be deemed an "Investor"
for purposes of this Agreement; provided, that the transferee provides written
notice of such assignment to the Company.
8G. SEVERABILITY. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.
8H. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
8I. HEADINGS. The headings of this Agreement are for
convenience only and do not constitute a part of this Agreement.
8J. GOVERNING LAW. The construction, validity and
interpretation of this Agreement will be governed by the internal laws of the
State of Delaware without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.
8K. FURTHER ASSURANCES. Each party to this Agreement
hereby covenants and agrees, without the necessity of any further consideration,
to execute and deliver any and all such further documents and take any and all
such other actions as may be necessary to appropriate to carry out the intent
and purposes of this Agreement and to consummate the transactions contemplated
hereby.
8L. COUNTERPARTS. This Agreement may be executed and
delivered (including delivery by facsimile) in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall be one and the
same document.
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8N. RULE 144 REPORTING. With a view to making available
the benefits of certain rules and regulations of the Securities and Exchange
Commission that may permit sale of the Registrable Securities to the public
without registration, the Company agrees to use its reasonable efforts to:
(i) Make and keep public information regarding
the Company available as those terms are understood and defined in Rule 144
under the Securities Act, at all times from and after ninety (90) days following
the effective date of the first registration under the Securities Act filed by
the Company for an offering of its securities to the general public;
(ii) File with the Securities and Exchange
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act at any time after it has
become subject to such reporting requirements.
(iii) So long as a holder owns any Registrable
Securities, furnish to the holder forthwith upon written request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 (at any time from and after ninety (90) days following the effective
date of the first registration statement filed by the Company for an offering of
its securities to the general public), and of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed as a holder of
Registrable Securities may reasonably request in availing itself of any rule or
regulation of the Securities and Exchange Commission allowing a holder of
Registrable Securities to sell any such securities without registration.
11
12
IN WITNESS WHEREOF, this Registration Rights Agreement has been
executed by the parties hereto as of the date first written above.
COMPANY:
ALTERRA HEALTHCARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and CEO
INVESTORS:
RDVEPCO, L.L.C.
By: RDV Altco, L.L.C., a member
By: RDV Corporation, a member
By: /s/ Xxxxx :X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
By: EDP Assisted Living Properties, L.L.C.,
a member
By: Xxxx X. Xxxxxx Living Trust u/a dated
January 24, 1976
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Trustee
GROUP ONE INVESTORS, L.L.C.
By: RDV Corporation, its manager
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
HOLIDAY RETIREMENT 2000, LLC
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: a member
[SIGNATURES FOLLOW ON NEXT PAGE]
13
HBK MASTER FUND L.P.
By: HBK Investments L.P., its investment manager
By: /s/ Xxxxx X. X'Xxxx
-----------------------------------
Name: Xxxxx X. X'Xxxx
Title: Authorized Signatory
XXXX X. XXXXXX LIVING TRUST, u/a dated
January 24, 1976
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx, as Trustee
RDV MANOR CARE, L.L.C.
By: RDV Corporation, its manager
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Its:
----------------------------------
