Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made by and
between Amedisys, Inc. (the "COMPANY") and the investors listed on Schedule I
hereto (collectively, the "INVESTORS" and each an "INVESTOR"), each of who has
executed a signature page hereto.
RECITALS
A. The Investors desire to purchase from the Company and the Company
desires to sell in connection with a private placement (the "OFFERING") of up to
1,460,000 shares (the "SHARES") of the Company's common stock, par value $.001
("COMMON STOCK"), upon the terms set forth in the Company's Subscription
Agreement and Offering Summary dated April 3, 2002.
B. To induce the Investors to purchase Shares, the Company is willing
under certain circumstances to register under the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively, the "SECURITIES
ACT"), the Shares.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto agree as follows:
1. Required Registrations.
(a) The Company will include the Registrable Securities (as
defined below) in a registration statement (the "AUTOMATIC REGISTRATION
STATEMENT") which the Company will prepare and file with the United
States Securities and Exchange Commission (the "SEC") under the
Securities Act as soon as practicable following the closing of the
Offering and use its best efforts to have declared effective within
sixty (60) days of the closing of the Offering, so as to permit the
public trading of the Registrable Securities no later than sixty (60)
days after the closing of the Offering.
(b) If the Company fails to file the Automatic Registration
Statement within thirty (30) days of the closing of the Offering, the
Company shall make a cash payment to the Investors, on a pro rata
basis, equal to two percent (2%) of the proceeds of the Offering;
thereafter, the Company will make an additional and comparable two
percent (2%) payment to the Investors for every sixty (60) days that
passes thereafter within which the Company does not file said Automatic
Registration Statement.
(c) Once the Automatic Registration Statement is declared
effective by the SEC, the Company shall prepare and file with the SEC
such amendments and supplements to such Automatic Registration
Statement and the prospectus used in connection therewith as may be
necessary to keep the Automatic Registration Statement effective until
at least the earlier date to occur (the "RELEASE DATE") of (i) the date
that all of the Registrable Securities have been sold pursuant to the
Automatic Registration Statement and (ii) the date that the holders of
the Registrable Securities receive an opinion of counsel to the Company
that they may sell their Registrable Securities
(without limitation or restriction as to quantity or timing and
without registration under the Act) pursuant to Rule 144(k) of the Act
or otherwise.
(d) The Registration Expenses shall be paid by the Company
with respect to all registrations effected pursuant to this Section.
2. Restrictions on Transfer. Each Investor shall not sell or offer to
sell any Registrable Securities until after the earlier to occur of the
Automatic Registration Statement having been declared effective or the date the
holders of the Registrable Securities receive an opinion of counsel to the
Company that they may sell their Registrable Securities (without limitation or
restriction as to quantity or timing and without registration under the
Securities Act) pursuant to Rule 144(k) of the Securities Act or otherwise.
3. Registration Procedures. In connection with any registration
of Registrable Securities, the Company shall:
(a) prepare and file with the Securities and Exchange
Commission a registration statement on the appropriate form under the
Securities Act, which form shall be available for the sale of such
Registrable Securities in accordance with the intended method or
methods of distribution thereof, and use its commercially reasonable
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 shall 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 shall be subject to the
review and comment of such counsel);
(b) notify each holder of Registrable Securities of the
effectiveness of the registration statement filed hereunder and prepare
and file with the Securities and Exchange Commission such amendments,
post-effective amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary or appropriate to keep such registration statement effective
for the period required for sale of the Registrable Securities and
cause such prospectus as so supplemented to be filed as required under
the Securities Act, and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in
such registration statement or supplement to the prospectus;
(c) 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;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions where such registration or
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qualification is required 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 shall not be required to: (i) qualify
generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph (d); (ii)
subject itself to taxation in any such jurisdiction; or (iii) consent
to general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered
under the Securities Act, upon discovery that, or upon the happening of
any event as a result of which the prospectus included in such
registration statement as then in effect, contains an untrue statement
of a material fact or omits any fact necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made, and, at the request of any such seller, the Company
shall prepare a supplement or amendment to such prospectus so that,
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not contain an untrue statement of a material
fact required to be stated therein or omit to state any fact necessary
to make the statements therein not misleading;
(f) cooperate with selling holders of Registrable Securities
and the managing underwriters, if any, to: (i) facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; (ii)
enable such Registrable Securities to be in such denominations and
registered in such names as the selling holders or managing
underwriters, if any, may request at least ten (10) business days prior
to any sale of Registrable Securities; and (iii) provide a transfer
agent and registrar for all such Registrable Securities not later than
the effective date of such registration statement;
(g) enter into such agreements as are customary with regard to
registrations of the type being conducted with respect to the
Registrable Securities (including, if there is an underwriter,
underwriting agreements in customary form);
(h) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant
to such registration statement and any attorney, accountant or other
agent retained by any such seller or underwriter, all financial and
other records, pertinent corporate documents and properties of the
Company that is customary, and cause the Company's officers, directors,
employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement,
provided, however, that the Company's obligation pursuant to this
Section 2(h) shall be conditioned upon such underwriter's, attorney's,
accountant's or other agent's signing a standard confidentiality
agreement in a form reasonably satisfactory to the Company;
(i) cooperate, and cause the Company's officers, directors,
employees and independent accountants to cooperate, with selling
holders of Registrable Securities and
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the designated underwriter, if any, in the sale of the Registrable
Securities and take any actions necessary to promote, facilitate or
effectuate such sale;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange
Commission;
(k) 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 common stock included in such
registration statement for sale in any jurisdiction, use its best
efforts promptly to obtain the withdrawal of such order.
4. Sales Pursuant to Rule 144 / S-3 Registrations. With a view to
making available to the holders of Registrable Securities the benefits of Rule
144 promulgated under the Securities Act and any other rule or regulation of the
SEC that may at any time permit a holder of Registrable Securities to sell
securities of the Company to the public without registration or pursuant to
registration on Form S-3, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144;
(b) take such action as is necessary to enable the holders of
Registrable Securities to utilize Form S-3 for the sale of the Shares;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Securities Exchange Act of 1934; and
(d) take further action as a majority of the holders of the
Registrable Securities may reasonably request, to the extent required
to enable such holders to sell Registrable Securities pursuant to: (a)
Rule 144 and 144A adopted by the SEC under the Securities Act (as such
rules may be amended from time to time) or any similar rules or
regulations hereafter adopted by the SEC; or (b) a registration
statement on Form S-2 or S-3 (if the Company is then able to use such
form) or any similar registration form hereafter adopted by the SEC.
Upon the request of the majority of the holders of the Registrable
Securities, the Company shall promptly supply such holders or their
respective prospective transferees with all information regarding the
Company required to be delivered in connection with a transfer pursuant
to Rule 144A under the Securities Act (or any similar provision then in
force).
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation: (i) all
registration and filing fees (including, if applicable, the fees and
expenses of any "qualified independent underwriter" and its counsel as
may be required under the rules and regulations of the NASD); (ii) fees
and expenses of compliance with securities or blue sky laws (including
fees and disbursements of counsel for the underwriters or selling
holders in connection
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with blue sky qualifications and determination of their eligibility
for investment under applicable laws); (iii) printing expenses; (iv)
messenger, telephone and delivery expenses; (v) fees and disbursements
of custodians, counsel for the Company and all independent certified
public accountants (including the expenses of any special audit and
"cold comfort" letters required by or incident to such performance),
underwriters (excluding underwriters' discounts and commissions) and
other Persons retained by the Company; (vi) the Company's internal
expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties);
(vii) the expense of any annual audit or quarterly review; (viii) the
expense of any liability insurance if such insurance coverage is
obtained by the Company; and (ix) the expenses and fees for listing
the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed or on the
Nasdaq shall be borne by the Company.
(b) Except as provided in Section 5(a), each holder of
Registrable Securities included in any registration hereunder shall pay
the discounts and commissions allocable to the Registrable Securities
of the holder and the fees and expenses of its counsel.
6. Indemnification and Contribution
(a) The Company agrees to indemnify each holder of Registrable
Securities which is included in a registration statement pursuant to
Section 1 herein, 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. In connection with an underwritten offering, the Company shall
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 holders of Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder
shall furnish to the Company in writing such information and affidavits
as the Company and any underwriter reasonably requests for use in
connection with any such registration statement or prospectus and shall
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
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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.
(c) Any Person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with
respect to which he, she or it seeks indemnification (provided that the
failure to give prompt notice shall not impair any Person's right to
indemnification hereunder to the extent such failure has not materially
prejudiced the indemnifying party) 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 shall not be subject to
any liability for any settlement made by the indemnified party without
its consent (but such consent shall not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim shall 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.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof
in respect to any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the Company and the holder
of Registrable Securities in connection with the statements or
omissions that resulted in such losses, claim, damages, liabilities or
expenses. The relative fault of the Company and the holder of
Registrable Securities in connection with the statements that resulted
in such losses, claims, liabilities or expenses shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of material facts or the omission or alleged omission to
state a material fact relates to information supplied by the Company or
the holder of Registrable Securities and the parties relative intent,
knowledge, access to information and opportunity to correct such
statement or omission.
(e) Notwithstanding any other provision of this Section, the
liability of any holder of Registrable Securities for indemnification
or contribution under this Section shall not exceed an amount equal to
the number of shares sold by such holder of Registrable Securities
multiplied by the net amount per share which he receives in such
underwritten offering.
(f) The indemnification and contribution provided for under
this Agreement shall 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
shall survive the transfer of securities.
7. Definitions.
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"NASD" means the National Association of Securities Dealers.
"Person" means any individual, corporation, partnership, limited
liability company, trust, estate, association, cooperative, government or
governmental entity (or any branch, subdivision or agency thereof) or any other
entity.
"Registrable Securities" means: (i) the Shares; and (ii) any Common
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
Shares. As to any particular Registrable Securities, such securities shall cease
to be Registrable Securities when they have been distributed to the public
pursuant to an offering registered under the Securities Act. For purposes of
this Agreement, a Person shall be deemed to be a holder of Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such Registrable Securities, whether or not such acquisition has actually been
effected.
"Securities Act" means the Securities Act of 1933, as amended.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall 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.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only
upon the prior written consent of the Company and holders of a majority
of the Registrable Securities.
(c) Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of
the parties hereto whether so expressed or not. In addition, whether or
not any express assignment has been made, the provisions of this
Agreement which are for the benefit of the purchasers or holders of
Registrable Securities are also for the benefit of, and enforceable by,
any subsequent holder of Registrable Securities. A person is deemed to
be a holder of Registrable Securities whenever such person is the
registered holder of Registrable Securities. Upon the transfer of any
Registrable Securities, the transferring holder of Registrable
Securities shall cause the transferee to execute and deliver to the
Company a counterpart of this Agreement.
(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) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not
contain the signatures of more than one
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party, but all such counterparts taken together shall constitute one
and the same Agreement.
(f) Descriptive Heading. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a
part of this Agreement.
(g) Governing Law. All issues and questions concerning the
construction, validity, interpretation and enforcement of this
Agreement shall be governed by, and construed in accordance with, the
laws of Connecticut, without giving effect to any choice of law or
conflict of law rules or provisions (whether of Connecticut or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than Connecticut.
(h) Consent to Jurisdiction: Service of Process. The Company
and Investor hereby irrevocably consent to the jurisdiction of the
State of Connecticut and any and all actions and proceedings in
connection with this Agreement, and irrevocably consent, in addition to
any methods of service of process permissible under applicable law, to
service of process by certified mail, return receipt requested to the
address of Company and Investor as set forth herein. Nothing in this
Section shall affect or limit the right of any Investor to serve legal
process in any other manner permitted by law. The Company and Investor
agree that in any action or proceeding brought by them in connection
with this Agreement or the transactions contemplated hereby, exclusive
jurisdiction shall be in the courts of the Courts of Connecticut.
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement this 23rd day of April, 2002.
AMEDISYS, INC. INDIVIDUAL, PARTNERSHIP, CORPORATION
OR TRUST:
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By: /s/ XXXXXXX X. XXXXX [Signature]
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Its: Chief Executive Officer
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[Print Name of Subscriber Organizations if
applicable]
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[Print Name of Person Signing and, if applicable,
Title]
Address:
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SCHEDULE I
LIST OF INVESTORS
Conus Fund LP
East Xxxxxx Inc.
The Conus Fund Offshore LTD
Duck Partner, XX
Xxxx Associates, LP
C.S.L. Associates LP
X.X. Focused Growth Fund, X.X.
Xxxxxx Partners, LP
Xxxxx X. Xxxxxxxx c/o Bank of Bermuda
Rosebury, L.P.
Meteoric, L.P.
The D3 Family Fund, LP
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. X'Xxxxx
Xxxx X. Xxxxxx
Xxxxxxx Xxxx
Xxxxx Xxx Xxxxx
Xxxxxxxx X. Xxxx & Xxxxx X. Xxxx
Xxxxxxxx X. Xxxx XXX
Haredale Ltd.
Xxxxx Xxxxx Xxxxxxxxxxxx
Toxford Corp.
London Family Trust
London Family Trust
The Pinnacle Fund, L.P.
Xxxx Xxxxxxxxx
Westpark Capital X.X.
Xxxxxxxxx Partners, L.P.
J. Xxxxxx Xxxxxxx XXX R/O II, Bear Xxxxxxx Securities Corp., Custodian
Glacier Partners
DHL Capital Management
Ponte Vedra Partners Ltd
Dolphin Offshore Partners, L.P.
Smoke Holdings
Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxxxx
