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EXHIBIT 10.3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is made as of
June 19, 2000, by and between RAMSAY YOUTH SERVICES, INC., a Delaware
corporation (the "Company"), SUNTRUST BANKS, INC., a Georgia corporation
("SunTrust") and ING (U.S.) CAPITAL, LLC, a Delaware limited liability company
("ING"; SunTrust and ING, individually, a "Purchaser" and, collectively, the
"Purchasers").
RECITALS
WHEREAS, the Company and SunTrust previously entered into that certain
Subordinated Note and Warrant Purchase Agreement dated as of January 25, 2000
(the "Original Purchase Agreement") pursuant to which, among other things,
SunTrust purchased Warrants which, in accordance with the terms of the Original
Purchase Agreement, will be exercisable for shares of Common Stock of the
Company (the "SunTrust Warrants"); and
WHEREAS, the Company and the Purchasers are parties to that certain
Amended and Restated Subordinated Note and Warrant Purchase Agreement dated as
of June 19, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Purchase Agreement") providing for, among other things, the purchase
by ING of Warrants which, in accordance with the terms of the Purchase
Agreement, will be exercisable for shares of Common Stock of the Company (the
"ING Warrants") and restating certain rights of SunTrust arising pursuant to the
terms of the Original Purchase Agreement; and
WHEREAS, in connection with the purchase by SunTrust of the SunTrust
Warrants, the Company and SunTrust have entered into that certain Warrant
Agreement dated as of January 25, 2000 (as amended, supplemented or otherwise
modified from time to time, the "SunTrust Warrant Agreement") providing for,
among other things, additional terms and conditions regarding the SunTrust
Warrants; and
WHEREAS, in connection with the purchase by ING of the ING Warrants,
the Company and ING have entered into that certain Warrant Agreement dated as of
June 19, 2000 (as amended, supplemented or otherwise modified from time to time,
the "ING Warrant Agreement") providing for, among other things, additional terms
and conditions regarding the ING Warrants.
NOW THEREFORE, in consideration of the foregoing, the parties agree as
follows:
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1. Certain Definitions. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Warrant
Agreement. As used in this Agreement, the following terms shall have the
following respective meanings:
"Acceptance Notice" shall have the meaning set forth in Section
2(b)(ii).
"Affiliate" shall mean, with respect to any Person (the "Specified
Person"), any other Person other than the Specified Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with, the Specified Person. For purposes of this definition, the term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of any Person, whether through the
ownership of voting securities, partnership interests, any contract or
otherwise; provided, however, that the holding by any Purchaser of the Warrant
Securities shall not be deemed to constitute any Purchaser as an Affiliate of
the Company hereunder.
"Commission" shall mean the Securities and Exchange Commission of the
United States or any other United States federal agency at the time
administering the Securities Act.
"Holder" shall mean any Purchaser and its transferees as permitted by
Section 10 holding Registrable Securities or securities convertible into or
exercisable for Registrable Securities.
"Indemnified Party" shall have the meaning set forth in Section 7(c).
"Indemnifying Party" shall have the meaning set forth in Section 7(c).
"ING Initiating Holder" shall mean the Holder of ING Registrable
Securities who initiates a request for registration pursuant to Section 2(a).
"ING Registrable Securities" shall mean the Registrable Securities
issued to ING pursuant to the terms of the Purchase Agreement and the ING
Warrant Agreement.
"Initiating Holder" shall mean the Holder who initiates a request for
registration pursuant to Section 2(a) including, but not limited to, the
SunTrust Initiating Holder and the ING Initiating Holder.
"Offer" shall have the meaning set forth in Section 2(b)(ii).
"Other Holders" shall mean holders of Company securities, other than
Holders, proposing to distribute their securities pursuant to a registration
under the Securities Act.
"Quoted Price" of Common Stock on any day is the last reported sales
price of the Common Stock on such day as reported by Nasdaq or, if the Common
Stock is listed on a national securities exchange, the last reported sales price
of the Common Stock on such exchange (which shall be for consolidated trading if
applicable to such exchange) on such day or,
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if the Common Stock is neither reported nor listed, the average of the last
reported bid and asked prices of the Common Stock on such day.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Securities" shall mean the Warrant Shares. Shares of
Common Stock or other securities shall cease to be Registrable Securities if (A)
they have been effectively registered under the Securities Act and disposed of
in accordance with the registration statement covering them, (B) they have
become eligible for sale pursuant to Rule 144 (or any similar provision then in
force under the Securities Act), (C) this Agreement is terminated with respect
to the holder of such securities or (D) they are acquired by the Company or any
of its Subsidiaries. The Company shall be required to register only Common Stock
pursuant to this Agreement and, consistent therewith, any Holder shall exercise
or convert, as a condition to participation in any registration under this
Agreement, its Warrant in conjunction with the inclusion of such Warrant Shares
in any registration by the Company contemplated by this Agreement.
"Registration Expenses" shall mean all expenses incurred by the Company
in complying with Sections 2 and 3 hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and expenses of counsel for the Company, fees and expenses of one counsel
for all Holders, blue sky fees and expenses, fees and expenses of all
independent certified public accountants of the Company (including, without
limitation, the expenses of any special audit and, in connection with any
underwritten offering, "cold comfort" letters), fees and expenses incurred in
connection with the listing of the securities to be registered on each
securities exchange on which securities of the same class are then listed or the
qualification for trading of the securities to be registered in each
inter-dealer quotation system in which securities of the same class are then
traded, and fees and expenses associated with any NASD filing required to be
made in connection with such registration, but excluding any and all
underwriting discounts and commissions.
"Registration Notice" shall have the meaning set forth in Section 2(a).
"Rule 145 Transaction" shall mean a transaction described in clause (a)
of Rule 145 promulgated under the Securities Act.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the sale of Registrable
Securities and all fees and disbursements of counsel for each of the Holders
other than fees and expenses of one counsel for all Holders.
"Selling Holders" shall mean each Holder who holds Registrable
Securities included in a registration statement under the Securities Act
pursuant to this Agreement.
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"SunTrust Initiating Holder" shall mean the Holder of SunTrust
Registrable Securities who initiates a request for registration pursuant to
Section 2(a).
"SunTrust Registrable Securities" shall mean the Registrable Securities
issued to SunTrust pursuant to the terms of the Purchase Agreement and the
SunTrust Warrant Agreement.
2. Requested Registration.
(a) Request for Registration. In case the Company shall receive from
an Initiating Holder a written request that the Company effect a registration or
qualification with respect to a public offering of shares of then outstanding
Registrable Securities (a "Registration Notice"), the Company will as soon as
practicable, use its best efforts to effect such registration or qualification
(including, without limitation, appropriate qualification under applicable blue
sky or other state securities laws) as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such Registration Notice.
Notwithstanding the foregoing, the Company shall not be obligated to effect, or
to take any action to effect, any such registration or qualification pursuant to
this Section 2(a):
(i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration or qualification unless the Company is already subject to service
in such jurisdiction and except as may be required by the Securities Act;
(ii) during the period starting with the date sixty (60) days
prior to the Company's estimated date of filing of, and ending on the date six
(6) months immediately following the effective date of, any registration
statement pertaining to securities of the Company to be sold by the Company
(other than a registration of securities in a Rule 145 Transaction or with
respect to an employee benefit plan), provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective;
(iii) after the Company has effected two registrations at the
request of the Holders pursuant to this Section 2(a) (in the aggregate for all
Holders), only if a registration statement covering all Registrable Securities
requested by the Initiating Holder to be registered pursuant to this Section
2(a) for each such registration shall have become effective and, if the method
of disposition is a firm commitment underwritten public offering, all such
Registrable Securities for each such registration shall have been sold pursuant
thereto; provided, that (A) the Holders of the SunTrust Registrable Securities
shall only be entitled to request one registration pursuant to this Section
2(a), if a registration statement covering all SunTrust Registrable Securities
requested by the SunTrust Initiating Holder to be registered pursuant to this
Section 2(a) shall have become effective, and (B) the Holders of the ING
Registrable Securities shall only be entitled to request one registration
pursuant to this Section 2(a), if a registration statement covering all ING
Registrable Securities requested by the ING Initiating Holder to be registered
pursuant to this Section 2(a) shall have become effective;
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(iv) if any firm of counsel representing the Company in
connection with any such registration shall advise the Company and the Holders
in writing that in their opinion the registration under the Securities Act
contemplated hereby is not necessary to permit the sale in the intended method
of disposition by the Holders, of the Registrable Securities in a transaction
constituting a public offering within the meaning of the Securities Act, then
the Company shall not be required to take any action with respect to such
registration; provided, however, that the provisions of this clause (iv) shall
not apply if the Holder reasonably determines that the Company's failure to take
any action with respect to such registration could result in a sale of such
Registrable Securities under terms and conditions less favorable to Holder than
if the Registrable Securities were registered as provided herein, or if such
failure to register the Registrable Securities could delay the sale of the
Registrable Securities by the Holder; or
(v) if the Company shall furnish to the Initiating Holder a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its stockholders for a registration statement to be filed in the
near future or that a delay is necessary to avoid the disclosure of material
non-public information concerning the Company or its Subsidiaries, then the
Company's obligation to use its best efforts to register or qualify under this
Section 2(a) shall be deferred for a period not to exceed ninety (90) days from
the date of receipt of the Registration Notice, provided, however, that the
Company shall not utilize this right more than twice in any twelve (12) month
period.
Subject to the foregoing clauses (i) through (v), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable, and in any event within sixty (60) days after
receipt of the Registration Notice. The registration statement filed pursuant to
the request of the Initiating Holder may, subject to the provisions of Section
2(c) below, include other securities of the Company, which may be held by Other
Holders.
(b) Company's Right to Purchase.
(i) If, within ten (10) business days following the receipt by
the Company of a Registration Notice, the Company notifies the Holders of its
good faith intention to purchase such Registrable Securities in accordance with
the terms of this Section 2(b) and the Company notifies the Holders that the
Company reasonably believes that the Agent will unconditionally consent in
writing to the Company's purchase of such Registrable Securities, then the
Company's obligations to use its best efforts to register or qualify under
Section 2(a) shall be deferred for a period not to exceed ten (10) business days
following the receipt by the Holders of the Company's notice of its intent to
purchase such Registrable Securities along with a copy of the Agent's
unconditional written consent to the Company purchasing such Registrable
Securities, unless the Company delivers an Acceptance Notice (as defined in
clause (ii) below) to the Holders along with a copy of the Agent's unconditional
written consent to the Company purchasing such Registrable Securities, in which
case the Company's obligations shall be
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deferred for a period not to exceed thirty (30) days following the receipt by
the Holders of the Acceptance Notice.
(ii) A Holder's request for registration pursuant to Section
2(a) shall be an offer by such Holder (the "Offer") to sell to the Company all
Warrant Shares proposed to be included in such registration by such Holder for a
cash purchase price equal to the product of (A) the average of the Quoted Prices
for the Common Stock for the thirty (30) consecutive trading days commencing
forty-five (45) trading days prior to such Registration Notice multiplied by (B)
the number of Warrant Shares offered to the Company by such Holder. After
receipt by the Company of a Registration Notice pursuant to Section 2(a), the
Company shall have ten (10) business days to give written notice of its
intention to accept or reject the Offer and agree to purchase all, but not less
than all, Warrant Shares proposed to be included in such registration. Failure
to respond within such 10-day period shall be deemed notice of rejection. In the
event that the Company notifies the Holders of its intention to accept such
Offer (the "Acceptance Notice"), then the Acceptance Notice, taken in
conjunction with the Offer, shall constitute a valid and legally binding
purchase and sale agreement, and payment in cash for such Warrant Shares shall
be made by the Company within thirty (30) days following the receipt by the
Holders of the Acceptance Notice. If the Company rejects or is deemed to reject
the Offer (or if the Company did not in good faith intend to accept the Offer),
the Company will expeditiously prepare and file a registration statement with
respect to, and use its best efforts to effect the registration of, the
Registrable Securities requested to be registered pursuant to Section 2(a).
(iii) If the Company gives an Acceptance Notice, it shall
promptly notify each Holder that elected to participate in the Registration
Notice, and the Company shall have no obligation to register the shares of
Registrable Securities as to which the election to participate was made until
subsequently obligated to do so under Section 2 or 3.
(c) Underwriting. If the Initiating Holder intends to distribute the
Registrable Securities covered by its request by means of an underwriting, it
shall so advise the Company as a part of its request made pursuant to Section
2(a). If Other Holders having registration rights with the Company request
inclusion in any such registration, the Selling Holders shall offer to include
the securities of such Other Holders in the underwriting subject to the
applicable provisions of this Section 2. The Selling Holders and the Company
shall (together with all Other Holders proposing to distribute their securities
through such underwriting) enter into underwriting and related agreements in
customary form with the representative of the underwriter or underwriters
selected for such underwriting by the Company. Such underwriting agreement will
contain such representations and warranties by the Company and such other terms
and provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation, indemnities
and contribution to the effect and to the extent provided in Section 7 hereof
and the provision of opinions of counsel and accountants' letters to the effect
and to the extent provided in Section 6 hereof, and the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
the Selling
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Holders. The Company shall reasonably cooperate with the Selling Holders and the
underwriters in connection with any underwritten offering. Notwithstanding any
other provision of this Section 2(c), if the representative advises the Selling
Holders in writing that marketing factors require a limitation on the number of
shares to be underwritten, the securities of the Company held by Other Holders
shall be excluded from such registration to the extent so required by such
limitation. If, after the exclusion of such securities, still further reductions
are still required, the number of shares included in the registration by each
Selling Holder shall be allocated ratably among them (based on the number of
shares held by such Selling Holder), by such minimum number of shares as is
necessary to comply with such request; provided, that there shall be no
reduction in the number of shares included in the registration by any Selling
Holder until all shares of Other Holders have been excluded from such
registration. No Registrable Securities or any other securities excluded from
the underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If any Other Holder who has requested inclusion
in such registration as provided above disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the underwriter and the Initiating Holder. The securities so
withdrawn shall also be withdrawn from registration. If the underwriter has not
limited the number of Registrable Securities or other securities to be
underwritten, the Company and officers and directors of the Company may include
its or their securities for its or their own account in such registration if the
managing underwriter of such proposed underwritten offering so agrees and if the
number of Registrable Securities and other securities which would otherwise have
been included in such registration and underwriting will not thereby be limited.
3. Company Registration.
(a) Notice of Registration. If at any time the Company shall
determine to register any of its equity securities, either for its own account
or the account of a security holder or holders (including, without limitation,
pursuant to Section 2), other than (i) a registration relating solely to
employee benefit plans, (ii) pursuant to a registration statement on Form S-4,
or any successor to such Form or (iii) a registration relating solely to a Rule
145 Transaction or a registration on any registration form which does not permit
secondary sales or does not include substantially the same information as would
be required to be included in a registration statement covering the sale of
Registrable Securities, the Company will:
(i) give prompt (and in any event within twenty business (20)
days before the anticipated filing date of the related registration statement)
written notice thereof to each Holder indicating the proposed offering price and
describing the plan of distribution; and
(ii) include in such registration (and any related qualification
under blue sky laws) and, at the request of any Holder, in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made by any Holder within ten (10) business days after the giving
of the written notice from the Company described in clause (i) above, except as
set forth in Section 3(b) below. Such written request by a Holder shall specify
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the amount of Registrable Securities intended to be disposed of by a Holder and
may specify all or a part of the Holders' Registrable Securities.
No registration of Registrable Securities effected under this Section 3(a) shall
relieve the Company of its obligation to effect a registration of Registrable
Securities pursuant to Section 2(a).
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 3(a)(i). In such event the right of any Holder to
registration pursuant to this Section 3(b) shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided in this
Section 3(b). All Holders proposing to distribute their securities through such
underwriting shall, together with the Company and the Other Holders, enter into
an underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company. The Company shall use its
reasonable best efforts to cause the managing underwriter of such proposed
underwritten offering to permit the Registrable Securities proposed to be
included in such registration to be included in the registration statement for
such offering on the same terms and conditions as any similar securities of the
Company included therein, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in any
jurisdiction where it is not so qualified, or to subject itself to taxation in
any such jurisdiction, or to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction. Notwithstanding any other
provision of this Section 3, the Company shall be entitled to include in the
registration all of the shares which the Company desires to sell for its own
account, and if the managing underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the managing
underwriter may limit the Registrable Securities and other securities to be
included in such registration. The Company shall so advise all Selling Holders
and Other Holders, and the number of shares that may be included in the
registration and underwriting by all Selling Holders and Other Holders (the
"Includable Securities") shall be allocated pro rata among them, as nearly as
practicable, as follows: first, Includable Securities shall be allocated among
the Other Holders, if any, exercising their demand registration rights; second,
the Holders and Other Holders exercising "piggy back" registration rights; and
third, the remainder of the Includable Securities to the remaining Other
Holders. To facilitate the allocation of shares in accordance with the above
provisions, the Company may round the number of shares allocated to any Holder
or Other Holder to the nearest one hundred (100) shares. If any Holder or Other
Holder disapproves of the terms of any such underwriting, such person may elect
to withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting also
shall be withdrawn from such registration, and shall not be transferred prior to
one hundred eighty (180) days after the effective date of the registration
statement relating thereto, or such other shorter period of time as the
underwriters may require.
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(c) Right to Terminate Registration. The Company shall have the
right for any reason to terminate or withdraw any registration initiated by it
under this Section 3 prior to the effectiveness of such registration whether or
not any Holder has elected to include Registrable Securities in such
registration and thereafter the Company shall be relieved of its obligation to
register such Registrable Securities in connection with the registration of such
equity securities.
4. Limitations on Registration Rights of Others. Except as set forth on
Schedule 4 attached hereto, the Company represents and warrants that, except
pursuant to this Agreement, it has not granted to any Person the right to
request or require the Company to register any securities issued by the Company.
The Company also covenants and agrees that, from and after the date hereof, the
Company will not, without the prior written consent of holders of a majority of
the then outstanding Warrant Securities, enter into any agreement with any
holder or prospective holder of any securities of the Company that allows such
holder or prospective holder of any securities of the Company to include such
securities in any registration filed under Section 2 hereof, unless the rights
granted under the terms of such agreement are expressly subject to the rights of
registration granted to the Holders pursuant to Section 2 hereof.
5. Expenses of Registration.
(a) Registration Expenses. The Company shall bear all Registration
Expenses incurred in connection with all registrations pursuant to Sections 2
and 3. In the event the Initiating Holder withdraws a Registration Notice or
abandons a registration statement, then all Registration Expenses in respect of
such Registration Notice shall be borne, at the Initiating Holders' option,
either by the Initiating Holders or by the Company (in which case, if borne by
the Company, such withdrawn or abandoned registration shall be deemed to be an
effective registration for purposes of Section 2(a)(iii)).
(b) Selling Expenses. All Selling Expenses relating to securities
registered on behalf of the Holders and Other Holders shall be borne by the
Holders and Other Holders pro rata on the basis of the number of shares so
registered.
6. Registration and Qualification. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities pursuant to Section 2, the Company will use its best efforts to
effect such registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto it will, as promptly as is practicable:
(a) before filing a registration statement or prospectus or any
amendments or supplements thereto, furnish to the counsel of the Selling Holders
copies of all documents proposed to be filed, which documents will be made
available on a timely basis, for review by such counsel to the Holders;
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(b) prepare and file with the Commission, as soon as practicable,
and use its best efforts to cause to become effective, a registration statement
under the Securities Act relating to the Registrable Securities to be offered on
such form under the Securities Act as the Initiating Holder or, if not filed
pursuant to Section 2 hereof, the Company, determines, and for which the Company
then qualifies;
(c) prepare and file with the Commission such amendments (including
post-effective amendments) and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement for a period of one hundred eighty (180)
days or until such time as all of such Registrable Securities have been disposed
of in accordance with the intended methods of disposition set forth in such
registration statement, whichever first occurs;
(d) furnish to the Selling Holders and to any underwriter of
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any amendment or supplement thereto, in conformity with
the requirements of the Securities Act, such documents incorporated by reference
in such registration statement or prospectus, and such other documents, as the
Selling Holders or such underwriter may reasonably request, and, if requested, a
copy of any and all transmittal letters or other correspondence to, or received
from, the Commission or any other governmental agency or self-regulatory body or
other body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering;
(e) make reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement at the earliest
possible moment;
(f) if requested by a Selling Holder, (i) use its reasonable best
efforts to furnish to each Selling Holder and to any underwriter an opinion of
counsel for the Company addressed to each Selling Holder and underwriter and
dated the date of the closing under the underwriting agreement (if any) (or if
such offering is not underwritten, dated the effective date of the registration
statement), (ii) use its reasonable best efforts to furnish to each Selling
Holder a "cold comfort" or "special procedures" letter addressed to each Selling
Holder and signed by the independent public accountants who have audited the
Company's financial statements included in such registration statement, (iii)
make such representations and warranties to the Selling Holders and, in
connection with any underwritten offering, to the underwriters, in each such
case covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) as are customarily covered in
opinions of issuer's counsel and in accountants letters delivered to
underwriters and in underwriting agreements in underwritten public offerings of
securities and such other matters as the Selling Holders may reasonably
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request and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements;
(g) immediately notify the Selling Holders in writing (i) at any
time when a prospectus relating to a registration hereunder 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, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, and
(ii) of any request by the Commission or any other regulatory body or other body
having jurisdiction for any amendment of or supplement to any registration
statement or other document relating to such offering, and in either such case,
at the request of a Selling Holder, prepare and furnish to such Selling Holders
a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading;
(h) use its reasonable best efforts to cause all such Registrable
Securities covered by such registration statement to be listed on each
securities exchange and inter-dealer quotation system on which a class of common
equity securities of the Company is then listed, and to pay all fees and
expenses in connection therewith;
(i) upon the transfer of shares by a Selling Holder in connection
with a registration hereunder (other than to an "affiliate" of the Company as
such term is defined in Rule 144(a)), furnish unlegended certificates
representing ownership of the Registrable Securities in such denominations as
shall be requested by the Selling Holders or the underwriters;
(j) subject to Section 2(a)(v), promptly notify the Selling Holders
and the managing underwriter, if any, and if requested by any such Person,
confirm such advice in writing,
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or the initiation of
any proceedings for that purpose,
(ii) of the Company's becoming aware at any time that the
representations and warranties of the Company contemplated by Section 6(f)(iii)
above have ceased to be true and correct, and
(iii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threat of any proceeding for such
purpose;
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(k) if reasonably requested by the managing underwriter, if any, or
a majority in interest of the Registrable Securities being sold in connection
with an underwritten offering, promptly include in a prospectus supplement or
post-effective amendment to such registration statement such information as the
managing underwriter or such majority in interest of the Registrable Securities
being sold reasonably request to have included therein relating to the plan of
distribution with respect to such Registrable Securities, including, without
limitation, information with respect to the amount of Registrable Securities
being sold to such underwriters and any other terms of the underwritten (or
best-efforts underwritten) offering of the Registrable Securities to be sold in
such offering; and make all required filings of such prospectus supplement or
post-effective amendment to such registration statement as soon as practicable
after the Company is notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment to such registration
statement;
(l) prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify or reasonably cooperate with the
Selling Holders, the managing underwriter, if any, and their respective counsel
in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any Selling Holder or managing underwriter reasonably requests
or as may be required by the Securities Act or applicable rule or regulations
thereunder, and do any and all other facts or things necessary to enable the
disposition in such jurisdictions of the Registrable Securities covered by such
registration statement, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in any
jurisdiction where it is not so qualified, or to subject itself to taxation in
any such jurisdiction, or to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction;
(m) reasonably cooperate and assist in any filings required to be
made with the NASD and any performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" as required to be
retained in accordance with the rules and regulations of the NASD); and
(n) otherwise use its reasonable best efforts to comply with the
Securities Act, the Exchange Act, all applicable rules and regulations of the
Commission and all applicable state blue sky and other securities laws, rules
and regulations.
7. Indemnification.
(a) By the Company. The Company will indemnify each Holder, each of
its officers and directors, partners, employees, Affiliates and agents, and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration or qualification has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter within the meaning of Section 15 of the
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Securities Act, against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained (or incorporated by reference) in any registration statement,
prospectus, offering circular or other document, or any amendment or supplement
thereto, incident to any such registration or qualification, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation by the
Company of the Securities Act or any rule or regulation promulgated under the
Securities Act applicable to the Company in connection with any such
registration or qualification, and the Company will reimburse each such Holder,
each of its officers, directors, partners, employees, Affiliates and agents, and
each person controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable to any
such Holder, controlling person or underwriter in any such case to the extent
that any such expense claim, loss, damage, liability or action arises out of or
is based on any untrue statement or omission, or alleged untrue statement or
omission, made or incorporated by reference in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder,
controlling person or underwriter for use therein. If the Holders are
represented by counsel other than counsel for the Company, the Company will not
be obligated under this Section 7(a) to reimburse legal fees and expenses of
more than one separate counsel for the Holders.
(b) By Holders. Each Selling Holder will indemnify the Company, each
of its directors, officers, employees, Affiliates and agents, each underwriter,
if any, of the Company's securities covered by such a registration statement,
each person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other Selling Holder and Other
Holder, each of its officers, directors, partners, employees, Affiliates and
agents and each person controlling such Selling Holders and Other Holder within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement of a material fact contained (or incorporated
by reference) in any such registration statement, prospectus, offering circular
or other document, or any omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and will reimburse the Company, such Selling Holders, such Other Holders, such
directors, officers, partners, employees, Affiliates and agents, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement or omission is made (or incorporated by reference) in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by such Selling Holder for use therein. Notwithstanding the foregoing,
the liability of each Selling Holder under this subsection (b) shall be limited
in an amount equal to the gross proceeds of the shares sold by such Selling
Holder.
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(c) Procedure for Indemnification. Each party entitled to
indemnification under paragraph (a) or (b) of this Section 7 (the "Indemnified
Party") shall, promptly after such Indemnified Party has knowledge of any claim
or the commencement of any action against such Indemnified Party in respect of
which indemnity may be sought, notify the party required to provide
indemnification (the "Indemnifying Party") in writing of the claim or the
commencement thereof; provided that the failure of the Indemnified Party to
notify the Indemnifying Party shall not relieve the Indemnifying Party from any
liability which it may have to an Indemnified Party pursuant to the provisions
of this Section 7, unless the Indemnifying Party was materially prejudiced by
such failure, and in no event shall such failure relieve the Indemnifying Party
from any other liability which it may have to such Indemnified Party. If any
such claim or action shall be brought against an Indemnified Party, it shall
notify the Indemnifying Party thereof and the Indemnifying Party shall be
entitled to participate therein, and, to the extent that it wishes, jointly with
any other similarly notified Indemnifying Party, to assume the defense thereof
with counsel reasonably satisfactory to the Indemnified Party. 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
(except to the extent the proviso to this sentence is applicable, in which event
it will be so liable) to the Indemnified Party under this Section 7 for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of investigation
prior to assumption; provided that each Indemnified Party shall have the right
to employ separate counsel to represent it and assume its defense (in which
case, counsel to the Indemnifying Party shall not represent it) if (i) upon the
written advice of counsel, the representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them (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, the Indemnifying Party will not have the right to assume the
defense of such claim or action on behalf of such Indemnified Party), or (ii) in
the event the Indemnifying Party has not assumed the defense thereof within
thirty (30) days of receipt of notice of such claim or commencement of action,
in which case the fees and expenses of one such separate counsel shall be paid
by the Indemnifying Party (and, in the event the Holders are an Indemnified
Party, the Indemnifying Party shall, in such event, pay for one separate counsel
for the Holders). If any Indemnified Party employs such separate counsel it will
not enter into any settlement agreement which is not approved by the
Indemnifying Party, such approval not to be unreasonably withheld or delayed. If
the Indemnifying Party so assumes the defense thereof (and by so assuming shall
be solely responsible for liabilities relating to such claim or action, and
shall release the Indemnified Party from such liabilities to the extent
permitted by law, except to the extent the Indemnified Party is not entitled to
be indemnified pursuant to this Section 7), it may not agree to any settlement
of any such claim or action as the result of which any remedy or relief, other
than monetary damages for which the Indemnifying Party shall be responsible
hereunder, shall be applied to or against the Indemnified Party, without the
prior written consent of the Indemnified Party which shall not be unreasonably
withheld or delayed. No Indemnifying Party will consent to entry of any judgment
or enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in
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respect of such claim or action. In any action hereunder as to which the
Indemnifying Party has assumed the defense thereof with counsel satisfactory to
the Indemnified Party, the Indemnified Party shall continue to be entitled to
participate in the defense thereof, with counsel of its own choice, but, except
as set forth above, the Indemnifying Party shall not be obligated hereunder to
reimburse the Indemnified Party for the costs thereof. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation recurring
therefrom.
(d) Contribution. If the indemnification provided for in this
Section 7 shall for any reason be unavailable to an Indemnified Party in respect
of any loss, claim, damage or liability, or any action in respect thereof, then
each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party,
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and the Indemnified Party on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault of each Indemnifying Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such Indemnifying Party on the
one hand or the Indemnified Party on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission, but not by reference to any Indemnified
Party's stock ownership in the Company. In no event, however, shall a Holder of
Registrable Securities be required to contribute in excess of the amount of the
gross proceeds received by such Holder in connection with the sale of
Registrable Securities in the offering which is the subject of such loss, claim,
damage or liability. The amount paid or payable by an Indemnified Party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referenced in this paragraph shall be deemed to include, for purposes of this
paragraph, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim. 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.
(e) Non-Securities Act Claims. Indemnification or, if appropriate,
contribution, similar to that specified in the preceding provisions of this
Section 7 (with appropriate modifications) shall be given by the Company and
each Selling Holder with respect to any required registration or other
qualification of Registrable Securities pursuant to this Agreement under any
federal or state law or regulation or governmental authority other than the
Securities Act.
8. Information by Holder. Selling Holders shall furnish to the Company
such information regarding such Holders and the distribution proposed by such
Holder as shall be
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necessary to enable the Company to comply with the provisions hereof in
connection with any registration, qualification or compliance referenced in this
Agreement.
9. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission, which may at any time permit
the sale of the Registrable Securities to the public without registration, after
such time as a public market exists for the Common Stock, the Company agrees to
use its best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act;
(b) use its reasonable best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act (at any time after it has become
subject to such reporting requirements); and
(c) so long as there are outstanding any Registrable Securities,
furnish to any Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 (at any time
after ninety (90) days after the effective date of the Company's first Qualified
Public Offering), and of the Securities Act and the Securities 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 of the Company and other information in the possession of
or reasonably obtainable by the Company as such Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing such Holder
to sell any such securities without registration.
10. Transfer of Registration Rights. The registration rights of any
Holder under Section 2 and 3 of this Agreement may be assigned in connection
with any transfer or assignment by a Holder of Registrable Securities provided
that: (a) such transfer may otherwise be effected in accordance with applicable
securities laws; (b) such transfer is effected in compliance with the
restrictions on transfer contained in the Warrant Agreement and (c) such
transferee shall be bound by all obligations and limitations of this Agreement.
11. Standoff Agreement. Each Holder agrees that if, in connection with
a secondary offering of the Company's securities after the date hereof, the
Company or the underwriters managing the offering so request, the Holders shall
not offer, sell, make any short sale of, pledge, loan, grant any option for the
purchase of, or otherwise dispose of any Registrable Securities (other than
those included in such registration) without the prior written consent of the
Company or such underwriters, as the case may be, for such period of time (not
to exceed one hundred eighty (180) days) from the effective date of such
registration as may be requested by the Company or the underwriters, provided
that each member of the Controlling Shareholder Group
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and each officer and director of the Company also agree to such restrictions
with respect to all securities of the Company held by such Person.
12. Miscellaneous.
(a) Survival. The respective indemnities, representations and
warranties of the Holders and the Company shall survive any termination of this
Agreement or of the Holders' rights hereunder.
(b) Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of Georgia without giving effect to the
conflicts of law principles thereof.
(c) Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
at least a majority of the Registrable Securities; provided, however, no such
waiver shall be construed to effect a continuing waiver of the provision being
waived and no such waiver shall constitute a waiver in any other instance or for
any other purpose or impair the right of the party against whom such waiver is
claimed to require full compliance with such provision in all other instances or
for all other purposes, unless such waiver by its own terms explicitly provides
to the contrary. Any amendment or waiver effected in accordance with this
paragraph will be binding upon each holder of any securities purchased under
this Agreement at the time outstanding (including securities for which such
securities are exercisable or into which such securities are convertible), each
future holder of all such securities and the Company.
(d) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(e) Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including telecopier) and shall be
effective (a) if given by mail, three (3) days after having been deposited in
the mail, postage prepaid, (b) if given by reputable overnight courier service,
one (1) day after having been delivered to such overnight delivery service, or
(c) if given by telecopier, when the sender receives written confirmation from
its telecopier that the transmission was successful. Notices hereunder shall be
mailed or telecopied as follows:
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If to the Company:
Ramsay Youth Services, Inc.
Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
with a copy to:
Torys
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to SunTrust:
SunTrust Banks, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx., Esq.
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
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If to ING:
ING (U.S.) Capital, LLC
000 Xxxxxxxx Xxxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx., Esq.
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section 12(e).
(f) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any of which need not contain the signatures of more
than one party, but all such counterparts then together shall constitute one and
the same agreement.
(g) Descriptive Headings; Interpretation. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a part
of this Agreement. The use of the word "including" in this Agreement shall be by
way of example rather than by limitation.
(h) Specific Performance. The Company recognizes that the rights of
the Holders under this Agreement are unique and, accordingly, the Holders shall,
in addition to such other remedies as may be available to any of them at law or
in equity, have the right to enforce their rights hereunder by actions for
injunctive relief and specific performance to the extent permitted by law. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate. This Agreement is not intended to limit
or abridge any rights of the Holders that may exist apart from this Agreement.
19
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
RAMSAY YOUTH SERVICES, INC.
By:
----------------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President
[SIGNATURE PAGE TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
21
PURCHASERS:
SUNTRUST BANKS, INC.
By:
----------------------------------------
Xxxxxx X. Xxxxxx
Group Vice President
ING (U.S.) CAPITAL, LLC
By:
----------------------------------------
Xxxxxx X. Xxxxxxx
Director
[SIGNATURE PAGE TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
