EXHIBIT 10.61
WARRANT AGREEMENT
BETWEEN
NATIONSBANK, N.A.
AND
VITAS HEALTHCARE CORPORATION
July 18, 1997
TABLE OF CONTENTS
ARTICLE 1
CERTAIN DEFINITIONS
ARTICLE II
ORIGINAL ISSUE OF WARRANTS
2.1 Form of Warrant Certificates ......................................... 5
2.2 Legend ............................................................... 5
2.3 Delivery of the Warrants ............................................. 5
ARTICLE 3
EXERCISE OF WARRANTS
3.1 Exercise Price ....................................................... 6
3.2 Restrictions on Exercise; Expiration ................................. 6
3.3 Method of Exercise; Payment of Exercise Price ........................ 6
3.4 Dividends and Distributions .......................................... 8
3.5 Stockholder Rights ................................................... 8
ARTICLE 4
ADJUSTMENTS
4.1 Adjustments .......................................................... 9
4.2 Termination of Right of Exercise on Fundamental Corporate Changes .... 12
4.3 Statements in the Warrants ........................................... 13
4.4 Fractional Interests ................................................. 13
4.5 No Dilution or Impairment ............................................ 13
ARTICLE 5
RESERVATION AND AUTHORIZATION OF COMMON SHARES
5.1 Reservation and Authorization ........................................ 13
5.2 Covenant Regarding Securities ........................................ 13
5.3 Registration ......................................................... 13
ARTICLE 6
WARRANT TRANSFER BOOKS; RESTRICTIONS ON TRANSFER
6.1 Transfer and Exchange ................................................ 14
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ARTICLE 7
REGISTRATION RIGHTS
ARTICLE 8
MISCELLANEOUS
8.1 Loss or Mutilation ................................................... 17
8.2 Payment of Taxes ..................................................... 17
8.3 Notices .............................................................. 17
8.4 Governing Law ........................................................ 18
8.5 Assignment; Successors ............................................... 18
8.6 Counterparts ......................................................... 18
8.7 Amendments ........................................................... 18
8.8 Headings ............................................................. 19
8.9 Third Party Beneficiaries ............................................ 19
8.10 Severability ......................................................... 19
8.11 No Inconsistent Agreements ........................................... 19
VITAS AGREES TO PROVIDE A COPY OF THE EXHIBITS REFERENCED IN THIS AGREEMENT TO
THE COMMISSION UPON REQUEST.
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of July 18, 1997 (this "Agreement"), between
VITAS HEALTHCARE CORPORATION, a Delaware corporation (the "Corporation"), and
NATIONSBANK, N.A. (successor by merger of NationsBank, N.A. (South)
("NationsBank").
WHEREAS, pursuant to the terms of an Amendment No.6 dated as of March
24,1997 ("Amendment No. 6") to Amended and Restated Revolving Credit, Term Loan
and Reimbursement Agreement dated as of February 17,1995, as amended, among the
Corporation, NationsBank, as Agent, and NationsBank, as Lender (as previously
amended and as amended by Amendment No.6, the "Credit Agreement"), NationsBank,
among other things, has agreed to continue to make available to the Corporation
loans of up to $32,000,000 (the "Loans"), which Loans are evidenced by Notes of
the Corporation in favor of NationsBank (the "Notes");
WHEREAS, in order to induce NationsBank to enter into Amendment No. 6, the
Corporation has agreed to execute and deliver to NationsBank 486,532 stock
purchase warrants ("Warrants") issued pursuant to this Agreement entitling the
Holder(s) (as defined herein) thereof to purchase from the Corporation an
aggregate of 486,532 shares (the "Warrant Shares") of the Corporation's common
stock, par value $.001 per share ("Common Stock"), at the Exercise Price (as
defined herein), subject to adjustment as provided in Article 4 hereof, at any
time on or after the date hereof and before 5:00 P.M., New York City time, on
the Expiration Date (as defined herein), subject to the terms and conditions
hereof.
NOW, THEREFORE, in consideration of the foregoing and of the agreements
contained in the Credit Agreement, and for the purpose of defining the terms and
provisions of the Warrants and Warrant Shares and the respective rights and
obligations thereunder of the Corporation and the Holder(s), the Corporation and
NationsBank hereby agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly
provided:
(a) the terms defined in this Article 1 have the meanings assigned
to them in this Article, and include the plural as well as the singular;
and
(b) the words "herein," "hereof" and "hereunder," and other words of
similar import, refer to this Agreement as a whole and not to any
particular article, section or other subdivision.
"Adjustment Period" shall mean the period of five (5) consecutive trading
days selected by the Board of Directors in its sole discretion, during the
twenty (20) trading days preceding, and including the date as of which the Fair
Market Value of a security is to be determined.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "under common control with" and "controlled
by"), as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting stock, by
agreement or otherwise; provided, however, that beneficial ownership of 25% or
more of the total voting power of all outstanding stock of a Person shall be
deemed to be control of such Person.
"Agreement" has the meaning set forth in the preamble hereto.
"Amendment No. 6" has the meaning set forth in the preamble hereto.
"Board of Directors" means the board of directors of the Corporation.
"Business Day" means any day which is not a Saturday, Sunday or a day on
which banking institutions in the States of New York or Florida are not
authorized or obligated by law, executive order, regulation or governmental
decree to close.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the preamble hereto.
"Corporation" has the meaning set forth in the preamble hereto.
"Current Market Price" of publicly traded shares of Common Stock or any
other class of capital stock or other security of the Corporation or any other
issuer for any given day shall mean the last reported sales price, regular way,
or, in case no sale takes place on such day, the average reported closing bid
and asked prices, regular way, in either case as reported on the New York Stock
Exchange Composite Tape or, if such security is not listed or admitted to
trading on any national securities exchange, on the NASDAQ National Market or,
if such security is not quoted on such NASDAQ National Market, the average of
the closing bid and asked prices on such day in the over-the-counter market as
reported by NASDAQ, or, if bid and asked prices for such security on such day
shall not have been reported through NASDAQ, the average of the bid and asked
prices for such day as furnished by any New York Stock Exchange member firm
regularly making a market in such security selected for such purpose by the
Board of Directors.
"Credit Agreement" has the meaning set forth in the preamble hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
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"Exempt Securities" shall mean the issuance of (a) Warrant Shares or other
securities issuable pursuant to the Warrants; (b) securities of the Corporation
issued upon the exercise, conversion or exchange of securities of the
Corporation issued prior to the date hereof; (c) shares of Common Stock or other
Corporation securities issued or issuable as a result of adjustments under
Section 4 or other applicable provisions of the Series B Certificate of
Designation or similar provisions of other convertible securities; (d) any
securities of the Corporation issued in exchange for assets or securities in a
merger, consolidation, sale or purchase of assets or other business combination
transaction approved by the Board of Directors; (e) any securities issuable or
any adjustment made or to be made to the Warrants or Warrant Shares under
Article 4 of this Agreement; (f) any rights or other securities issued or
issuable pursuant to a stockholder rights agreement under which the Board of
Directors would declare a dividend of one preferred (or common) share purchase
right for each outstanding share of Common Stock provided that such stockholder
rights agreement results in equivalent dividends on Warrant Shares; (g) any
shares of Common Stock pursuant to any plan providing for the reinvestment of
dividends or interest payable on securities of the Corporation and the
investment of additional optional amounts in shares of Common Stock under any
such plan; (h) any shares of Common Stock in a public offering registered under
the Securities Act; (i) any shares of Common Stock or options or rights to
purchase such shares pursuant to any stock option or bonus plan or plans now or
hereafter adopted by the Corporation (including any stock appreciation rights or
employee stock ownership plan) for the benefit of directors, officers, employees
and/or consultants of the Corporation and/or its subsidiaries or pursuant to any
employee benefit plan or program now or hereafter adopted by the Corporation for
the benefit of its employees and/or employees of its subsidiaries, or pursuant
to any specific grant not pursuant to any plan or program that is approved by
the Corporation's Board of Directors; or (j) the issuance or repurchase of
Corporation securities on or prior to the date the Warrants are first issued (or
any subsequent issuances of Common Stock, 9% Preferred Stock or Series B
Preferred Stock issued pursuant to warrants, options or rights previously
granted, outstanding or issued on the date the Warrants are first issued).
"Exercise Price" has the meaning set forth in Section 3.1 hereof.
"Expiration Date" means March 24, 2007.
"Extraordinary Distribution" shall mean any dividend or other distribution
with respect to the Common Stock (effected while any of the Warrants are
outstanding) of any shares of capital stock of the Corporation (other than
shares of Common Stock), other securities of the Corporation (other than
securities of the type referred to in Section 4.1(c)), evidences of indebtedness
of the Corporation or any other person or any other property other than cash
(including shares of any subsidiary of the Corporation), or any combination
thereof.
"Fair Market Value" shall mean, as to shares of Common Stock or any other
class of capital stock or securities of the Corporation or any other issuer
which are publicly traded, the average of the Current Market Prices of such
shares or securities for each day of the Adjustment Period. The "Fair Market
Value" of any security which is not publicly traded or of any other
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property shall mean the fair value thereof as determined in good faith by the
Board of Directors in its sole discretion.
"Holders" shall mean NationsBank or an Affiliate thereof and such other
Persons to whom NationsBank or an Affiliate thereof transfers Warrants in
compliance with the terms of this Agreement and each subsequent permitted
transferee.
"NationsBank" has the meaning set forth in the preamble hereto.
"9% Certificate of Designation" shall mean the Certificate of Designation,
Preferences and Other Rights of the 9.0% Cumulative Nonconvertible Preferred
Stock of the Corporation, as amended from time to time.
"9% Preferred Stock" shall mean the 9.0% Cumulative Nonconvertible
Preferred Stock of the Corporation, par value $1.00 per share, which is issued
under the 9% Certificate of Designation.
"Notes" has the meaning set forth in the preamble hereto.
"Person" shall mean a natural person, partnership, corporation,
association, joint stock company, trust, joint venture, unincorporated
association, governmental entity or any department, agency or political
subdivision thereof, or other entity.
"Private Placement Legend" means the legend in the form set forth in
Section 2.2 hereof.
"Qualified Initial Public Offering" shall mean a public offering of the
Corporation's Common Stock resulting in gross proceeds to the Corporation of not
less than $12 million and at a total market capitalization of the common equity
of the Corporation at that time of not less than $60 million.
"Registration Rights Agreement" shall mean that certain Registration
Rights Agreement dated as of June 4, 1993 among the Corporation, certain
stockholders of the Corporation, Chemed Corporation and the investors identified
on Schedule A thereto.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Series B Certificate of Designation" shall mean the Certificate of
Designation, Preferences and Other Rights of the Series B Convertible Preferred
Stock of the Corporation, as amended from time to time.
"Series B Preferred Stock" shall mean the Series B Convertible Preferred
Stock of the Corporation, par value $1.00 per share, which is issued under the
Series B Certificate of Designation.
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"Warrants" has the meaning set forth in the preamble hereto.
"Warrant Certificate" has the meaning set forth in Section 2.1 hereto.
"Warrant Shares" has the meaning set forth in the preamble hereto.
ARTICLE 2
ORIGINAL ISSUE OF WARRANTS
2.1 Form of Warrant Certificates. Any certificate representing the
Warrants (a "Warrant Certificate"), the form of which is attached hereto as
Exhibit A, shall be detachable from the Credit Agreement and any Notes and shall
be dated the date on which it is signed by a duly authorized officer of the
Corporation and shall have such insertions as are appropriate or required or
permitted by this Agreement and may have such letters, numbers or other marks of
identification as the Corporation may deem appropriate and as are not
inconsistent with the provisions of this Agreement.
2.2 Legend. Subject to the provisions hereof, each Warrant Certificate and
each certificate representing securities acquired upon exercise of the Warrants
shall bear the following legend on the face thereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF A CERTAIN AGREEMENT WHICH INCLUDES A RIGHT OF FIRST REFUSAL ON
THE SALE OF THE SECURITIES. COPIES OF THE AGREEMENT MAY BE OBTAINED UPON WRITTEN
REQUEST TO THE SECRETARY OF THE CORPORATION.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS AND CANNOT BE OFFERED, SOLD OR TRANSFERRED WITHOUT REGISTRATION
OR COMPLIANCE WITH EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE
STATE SECURITIES LAWS AND REGULATIONS PROMULGATED THEREUNDER.
A full statement of the powers, designations, preferences and relative,
participating, optional or other special rights of the shares of each class of
stock of the Corporation authorized to be issued, and the qualifications,
limitations or restrictions of such preferences and/or rights, will be furnished
to any stockholder without charge upon request to the Secretary of the
Corporation."
2.3 Delivery of the Warrants.
This Agreement contemplates the issuance of up to 486,532 Warrants,
subject to adjustment as provided herein. Concurrently with the execution and
delivery of this Agreement,
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the Corporation shall issue to NationsBank or an Affiliate thereof in connection
therewith (but detachable therefrom) a Warrant Certificate for 486,532 Warrants.
ARTICLE 3
EXERCISE OF WARRANTS
3.1 Exercise Price.
The Warrant Certificate shall entitle the Holders thereof, subject to the
provisions of this Agreement, to purchase an aggregate of four hundred
eighty-six thousand five hundred thirty-two (486,532) Warrant Shares at a per
share purchase price (the "Exercise Price") of $.0l, subject to the limitations
and adjustments as provided in Article 4 hereof; provided, however, that in no
event shall the exercise price per share of Common Stock be less than the par
value of such Common Stock.
3.2 Restrictions on Exercise; Expiration. Subject to the limitations and
adjustments as provided herein, on or before the Expiration Date, the Warrants
may be exercised on any Business Day as to all or any portion of the Warrant
Shares for which the Warrants are then exercisable as follows: (a) as of the
date of this Agreement and the issuance of the Warrant Certificate, the number
of Warrants which may be exercised pursuant to this Agreement, and the number of
Warrant Shares issuable upon exercise of such Warrants, shall be 194,613; (b) in
the event the Corporation shall not have been paid in full its Obligations (as
defined in the Credit Agreement) on or prior to August 30, 1997, the number of
Warrants which may be exercised pursuant to this Agreement, and the number of
Warrant Shares issuable upon exercise of such Warrants, shall be automatically
increased to 291,919 effective as of August 31,1997; (c) in the event the
Corporation shall not have paid in full its Obligations (as defined in the
Credit Agreement) on or prior to November 29, 1997, the number of Warrants which
may be exercised pursuant to this Agreement, and the number of Warrant Shares
issuable upon exercise of such Warrants, shall be automatically increased to
389,226 effective as of November 30,1997; and (d) in the event the Corporation
shall not have been paid in full its Obligations (as defined in the Credit
Agreement) on or prior to January 30, 1998, the number of Warrants which may be
exercised pursuant to this Agreement, and the number of Warrant Shares issuable
upon exercise of such Warrants, shall be automatically increased to 486,532
effective as of January 31, 1998. The Exercise Price shall not be adjusted by
reason of any such increase in the number of Warrants which may be exercised and
in the number of Warrant Shares issuable upon such exercise. If any of the
Warrants are not exercised by 5:00 p.m., New York City time, on the Expiration
Date, this Agreement and all unexercised Warrants shall expire and all rights of
the Holders hereunder and thereunder shall terminate unless otherwise provided
herein or therein.
3.3 Method of Exercise; Payment of Exercise Price.
(a) In order to exercise any of the Warrants, the Holder thereof must
provide written notice to the Corporation at its address set forth in Section
8.3 hereof in the form attached hereto as Exhibit B specifying the number of
Warrants being exercised. Such notice shall be
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accompanied by Warrant Certificates representing not less than the number of
Warrants being exercised, together with payment in full of the per share
Exercise Price multiplied by the number of Warrant Shares to be purchased
pursuant to the exercise. The Exercise Price shall be payable, at the option of
the Holder, by wire transfer, certified check, official bank check or bank
cashier's check payable to the order of the Corporation.
(b) In lieu of exercising Warrants pursuant to Section 3.3(a), the Holder
shall have the right to require the Corporation to convert the Warrants, in
whole or in part and at any time or times (the "Conversion Right"), into Warrant
Shares, by surrendering to the Corporation at its address set forth in Section
8.3 hereof the Warrant Certificate evidencing the Warrants to be converted,
accompanied by the form of conversion notice attached hereto as Exhibit C which
has been duly completed and signed. Upon exercise of the Conversion Right, the
Corporation shall deliver to the Holder (without payment by the Holder of any
Exercise Price) that number of Warrant Shares which is equal to the quotient
obtained by dividing (x) the value of the number of Warrants being converted at
the time the Conversion Right is exercised (determined by subtracting the
aggregate Exercise Price for all such Warrants immediately prior to the exercise
of the Conversion Right from the aggregate Fair Market Value of that number of
Warrant Shares purchasable upon exercise of such Warrants immediately prior to
the exercise of the Conversion Right (taking into account all applicable
adjustments pursuant to Article 4), by (y) the Fair Market Value of one share of
Common Stock immediately prior to the exercise of the Conversion Right. Any
references in this Agreement to the "exercise" of any Warrants, and the use of
the term "exercise" herein, shall be deemed to include (without limitation) any
exercise of the Conversion Right.
(c) If the number of Warrants being exercised is less than the number of
Warrants represented by the Warrant Certificate(s) tendered in connection with
the exercise, the Corporation shall issue new Warrant Certificate(s) for the
unexercised Warrants in accordance with instructions contained in the notice of
exercise and this Agreement.
(d) Upon exercise of any Warrant in conformity with the foregoing
provisions, the Corporation shall (i) transfer promptly to, or upon the written
order of, the Holder of such Warrant, appropriate evidence of ownership of any
Warrant Shares or other securities or property (including money) to which it is
entitled, registered or otherwise placed in such name or names as may be
directed in writing by the Holder thereof, (ii) deliver such evidence of
ownership and any other securities or property (including money) to the person
or persons entitled to receive the same, and (iii) reissue, as the case may be,
a Warrant Certificate for any unexercised Warrants. Each new Warrant Certificate
so issued shall bear the legend set forth in Section 2.2 if the Warrant
Certificate presented in connection with partial exercise thereof bore such
legend except to the extent that some or all of the transfer restrictions
referred to in such legend or this Agreement are no longer applicable pursuant
to Article 6 or as a result of registration of the Warrant Shares pursuant to
Article 7. All Warrant Certificates surrendered upon exercise of Warrants shall
be canceled. A Warrant shall be deemed to have been exercised immediately prior
to the close of business on the date of the surrender to the Corporation for
exercise of the Warrant Certificate representing such Warrant being exercised
and accompanied by the notice required
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under Section 3(a) or 3(b), as the case may be, for all purposes of this
Agreement, the person entitled to receive any Warrant Shares or other securities
or property deliverable upon such exercise shall, as between such person and the
Corporation, be deemed to be the Holder of such Warrant Shares or other
securities or property of record as of the close of business on such date and
shall be entitled to receive any Warrant Shares or other securities or property
(including money) to which such person would have been entitled had such person
been the record holder of such Warrant Shares or other securities or property on
such date.
3.4 Dividends and Distributions. For so long as any of the Warrants remain
outstanding and unexercised, the Corporation will, upon the declaration of a
cash dividend upon its Common Stock or other distribution to the holders of its
Common Stock (other than a dividend payable in shares of the Corporation's
Common Stock) and at least twenty (20) calendar days prior to the record date
for such dividend or other distribution (or if no record date is specified,
twenty (20) calendar days prior to the taking of the action), notify the Holders
of such declaration, which notice will contain, at a minimum, the following
information: (i) the date of the declaration of the dividend or distribution,
(ii) the amount of such dividend or distribution, (iii) the record date of such
dividend or distribution, and (iv) the payment date or distribution date of such
dividend or distribution. The failure to give the notice required by this
Section 3.4 or any defect therein shall not affect the legality or validity of
such dividend or distribution.
3.5 Stockholders Rights.
(a) Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the Holders thereof the right
to vote or to consent or to receive notice as a stockholder in respect of the
meetings of stockholders or the election of directors of the Corporation or any
other matter, or any rights whatsoever as a stockholder of the Corporation.
(b) Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as imposing any obligation on the registered
Holders thereof to purchase any securities or as imposing any liabilities on
such Holders as stockholders of the Corporation, whether such obligation or
liabilities are asserted by the Corporation or by creditors of the Corporation
(except for indemnities and other obligations in connection with registration
rights).
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ARTICLE 4
ADJUSTMENTS
4.1 Adjustments. The Exercise Price and the number of Warrant Shares
issuable upon exercise of each Warrant shall be subject to adjustment from time
to time as follows:
(a) Intentionally Omitted.
(b) Adjustments for Changes in Common Stock. Subject to the provisions of
Section 4.1(e), in the event the Corporation shall, at any time or from time to
time while any of the Warrants are outstanding, (i) pay a dividend or make a
distribution in respect of the Common Stock in shares of Common Stock or (ii)
subdivide or combine the outstanding shares of Common Stock into a greater or
lesser number of shares, in each case whether by reclassification of shares,
recapitalization of the Corporation or otherwise, then, in such event, each
Warrant will automatically, without any action on the part of the Holder or the
Corporation, become exercisable for that number of Warrant Shares equal to the
number of Warrant Shares for which a Warrant was exercisable immediately prior
to such event multiplied by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock outstanding
immediately before such event. An adjustment pursuant to this Section 4.1(b)
shall be effective upon payment of such dividend or distribution in respect of
the Common Stock and in the case of a subdivision or combination shall become
effective immediately as of the effective date thereof. Concurrently with the
automatic adjustment pursuant to this Section 4.1(b), the Exercise Price shall
be adjusted by multiplying the Exercise Price in effect immediately before the
event by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately before such event and the denominator of which is
the number of shares of Common Stock outstanding immediately after such event.
(c) Below Market Issuances. Subject to the provisions of Section 4.1(e),
in the event the Corporation shall, at any time or from time to time while any
of the Warrants are outstanding, sell or issue shares of Common Stock (other
than in a transaction subject to Section 4.1(b)), any security convertible into
shares of Common Stock or any option, right or warrant to purchase shares of
Common Stock for no consideration or at a purchase price per share of Common
Stock, or conversion price in the case of a security convertible into Common
Stock, less than the Fair Market Value of a share of Common Stock on the date of
issuance of such Common Stock, security convertible into Common Stock, option,
right or warrant, then, in such event, each Warrant will automatically, without
any action on the part of the holder thereof or the Corporation, become
exercisable for that number of Warrant Shares equal to the number of Warrant
Shares for which a Warrant was exercisable immediately before such sale or
issuance of Common Stock, securities convertible into Common Stock, options,
rights or warrants multiplied by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately before such sale or issuance
of Common Stock, securities convertible into Common Stock, options, rights or
warrants plus the maximum number of shares of Common Stock that could be
acquired upon the sale or issuance of the Common Stock or upon exercise in full
of all
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such conversion rights, options, rights and warrants and the denominator of
which is the number of shares of Common Stock outstanding immediately before
such sale or issuance of Common Stock, securities convertible into Common Stock,
options, rights or warrants plus the number of shares of Common Stock which
could be purchased at the Fair Market Value of a share of Common Stock at the
time of such sale or issuance for the maximum aggregate consideration payable
upon the sale or issuance of the Common Stock or upon exercise in full of all
such conversion rights, options, rights or warrants. Concurrently with the
automatic adjustment pursuant to this Section 4.1(c), the Exercise Price shall
be adjusted by multiplying the Exercise Price in effect immediately before such
sale or issuance of Common Stock, securities convertible into Common Stock,
options, rights or warrants by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately before such sale or issuance
of Common Stock, securities convertible into Common Stock, options, rights or
warrants plus the number of shares of Common Stock which could be purchased at
the Fair Market Value of a share of Common Stock at the time of such sale or
issuance for the maximum aggregate consideration payable upon the sale or
issuance of the Common Stock or upon exercise in full of all such conversion
rights, options or warrants, and the denominator of which is the number of
shares of Common Stock outstanding immediately before such sale or issuance of
Common Stock, securities convertible into Common Stock, options, rights or
warrants plus the maximum number of shares that could be acquired upon the sale
or issuance of the Common Stock or upon the exercise in full of all such
conversion rights, options, rights and warrants. For purposes of this Section
4.1(c), all shares of Common Stock issuable upon the conversion of such
convertible securities or upon exercise of such options, warrants or rights
shall be deemed to have been issued, for the purpose of computing the number of
Warrant Shares for which a Warrant is exercisable and the Exercise Price
hereunder, as of the time such convertible securities, options, warrants or
rights are issued or sold. If any rights of conversion or exercise of such
convertible securities, options, rights or warrants shall expire without having
been exercised, the number of Warrant Shares for which a Warrant is exercisable
and the Exercise Price shall forthwith be automatically adjusted to be the
number of Warrant Shares for which a Warrant is exercisable and the Exercise
Price that would have been in effect had an adjustment been made on the basis
that the only shares of Common Stock issued or sold were those actually issued
upon the conversion or exercise of such convertible securities, options, rights
or warrants. For purposes of this Section 4.1(c), the date of issuance of
options for shares of Common Stock shall mean the date of their grant. For
purposes of this Section 4.1(c), "Common Stock outstanding shall mean all shares
of Common Stock outstanding on a fully diluted basis, as if all securities
convertible into or exchangeable for Common Stock had been fully converted into
or exchanged for shares of Common Stock and any outstanding options, warrants or
other rights to purchase Common Stock or securities convertible into or
exchangeable for Common Stock had been fully exercised (and the resulting
securities converted into or exchanged for Common Stock), but excluding shares
of Common Stock issuable upon exercise of the Warrants.
(d) Extraordinary Distributions. Subject to the provisions of Section
4.1(e) and Section 4.2, in the event the Corporation shall, at any time or from
time to time while any of the Warrants are outstanding, make an Extraordinary
Distribution in respect of the Common Stock, whether by dividend, distribution,
reclassification of shares or recapitalization of the Corporation
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(including recapitalization or reclassification effected by a merger or
consolidation in which the Corporation is the surviving entity) then, in such
event, each Warrant will automatically, without any action on the part of the
holder thereof or the Corporation, become exercisable for that number of Warrant
Shares equal to the number of Warrant Shares for which a Warrant was exercisable
immediately before such Extraordinary Distribution multiplied by a fraction the
numerator of which is the product of (a) the number of shares of Common Stock
outstanding immediately before such Extraordinary Distribution multiplied by (b)
the Fair Market Value of a share of Common Stock on the record date with respect
to an Extraordinary Distribution and the denominator of which is (i) the product
of (x) the number of shares of Common Stock outstanding immediately before such
Extraordinary Distribution multiplied by (y) the Fair Market Value of a share of
Common Stock on the record date with respect to an Extraordinary Distribution
minus (ii) the Fair Market Value of the Extraordinary Distribution. The
Corporation shall send each Holder notice of its intent to make any
Extraordinary Distribution at the same time as, or as soon as practicable after,
such offer is first communicated (including by announcement of a record date in
accordance with the rules of any stock exchange on which the Common Stock is
listed or admitted to trading) to holders of Common Stock. Such notice shall
indicate the intended record date and the amount and nature of such
distribution, as well as the Exercise Price and the number of Warrant Shares for
which a Warrant may be exercised at such time. Concurrently with the automatic
adjustment pursuant to this Section 4.1(d), the Exercise Price shall be adjusted
by multiplying the Exercise Price in effect immediately before such
Extraordinary Distribution by a fraction the numerator of which is (i) the
product of (x) the number of shares of Common Stock outstanding immediately
before such Extraordinary Distribution multiplied by (y) the Fair Market Value
of a share of Common Stock on the record date with respect to an Extraordinary
Distribution, minus (ii) the Fair Market Value of the Extraordinary Distribution
and the denominator of which is the product of (a) the number of shares of
Common Stock outstanding immediately before such Extraordinary Distribution
multiplied by (b) the Fair Market Value of a share of Common Stock on the record
date with respect to an Extraordinary Distribution.
(e) Exempt Securities. Notwithstanding any other provision herein to the
contrary, the issuance of any Exempt Securities shall not be deemed to
constitute an issuance of Common Stock or other security of the Corporation (or
in the case of any repurchase, any Extraordinary Distribution) for purposes of
the foregoing anti-dilution provisions.
(f) De Minimus Adjustments. Notwithstanding any other provisions of this
Section 4.1, the Corporation shall not be required to make (i) any adjustment of
the number of Warrant Shares or the Exercise Price unless such adjustment would
require an increase or decrease of at least one percent (1%) in the aggregate
number of Warrant Shares for which Warrants are exercisable at that time, or
(ii) any adjustment of the Exercise Price unless such adjustment would require
an increase or decrease of at least one percent (1%) in the Exercise Price. Any
lesser adjustment shall be carried forward and shall be made no later than the
time of, and together with, the next subsequent adjustment which, together with
any adjustment or adjustments so carried forward, shall amount to an increase or
decrease of at least one percent (1%) of the number of Warrant Shares for which
Warrants are exercisable at that time or an increase or decrease of at least one
percent (1%) of the Exercise Price, whichever the case may be. If any action
would require adjustment of the Exercise
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Price pursuant to more than one paragraph of Section 4.1, only one
adjustment shall be made as determined in good faith by the Board of Directors
of the Corporation.
(g) Notice of Adjustment. Whenever an adjustment to the Exercise Price or
number of Warrants and Warrant Shares is required pursuant to this Section 4.1,
the Corporation shall forthwith place on file with the transfer agent for the
Common Stock, if any, and with the Treasurer of the Corporation, a statement
signed by the Treasurer or Assistant Treasurer of the Corporation stating the
adjusted number of Warrant Shares and the Exercise Price determined as provided
herein. Such statement shall set forth in reasonable detail such facts as shall
be necessary to show the reason and the manner of computing such adjustment,
including any determination of Fair Market Value involved in such computation.
Promptly after each adjustment to the number of Warrant Shares for which
Warrants are exercisable or the Exercise Price, the Corporation shall mail a
notice thereof and of the then prevailing number of Warrant Shares for which
Warrants are exercisable and the Exercise Price to each Holder.
4.2 Termination of Right of Exercise on Fundamental Corporate Changes.
Notwithstanding anything herein to the contrary, and subject to the notice
requirements of this Section 4.2, if the Corporation shall be a party to any
transaction which involves any consolidation or merger of the Corporation with
another corporation, or any sale of all or substantially all of the assets of
the Corporation to another corporation, and which is effected in such a way that
the holders of Common Stock shall be entitled to receive cash, stock, securities
or other assets with respect to or in exchange for Common Stock, then the right
to exercise the Warrants and thereby to purchase shares of Common Stock shall
terminate at the close of business on the date as of which the holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
cash, securities or other assets deliverable upon such consolidation, merger or
sale of all or substantially all of the assets of the Corporation. In case the
Corporation shall enter into any agreement or understanding or the Board of
Directors shall adopt any resolution authorizing or proposing any transaction of
the type described in this Section 4.2, or with respect to a voluntary or
involuntary dissolution, liquidation or winding up of the Corporation, then in
any such event the Corporation promptly shall cause to be mailed, by registered
or certified mail, postage paid, to the Holder of this Warrant at such Holder's
last address appearing on the records of the Corporation at the earliest
practicable time (and, in any event, not later than the later of (i) the date
the proxy materials (if any) are first distributed (or other notice is first
given) to the Corporation's shareholders regarding the proposed transaction, or
(ii) 20 days before the effective date (or record date, if earlier) of such
proposed transaction), notice of the date on which such reorganization, sale,
consolidation, merger, dissolution, liquidation or winding up or other such
transaction shall take place, as the case may be. Such notice shall also set
forth such facts as shall indicate the effect of such action (to the extent such
effect may be known at the date of such notice) on the Exercise Price and the
kind and amount of securities and property purchasable upon exercise of the
Warrants. Such notice shall also specify the date as of which the holders of
record of the shares of Common Stock or other securities or property purchasable
upon exercise of the Warrants shall be entitled to exchange their shares or
other securities or property for securities, money or other property deliverable
upon such reorganization, sale, consolidation, merger, dissolution, liquidation
or winding up or other such transaction, as the case may be.
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4.3 Statements in the Warrants. Notwithstanding any adjustment in the
Exercise Price or the number or kind of Warrant Shares purchasable upon the
exercise of the Warrants, the Warrant Certificates theretofore or thereafter
issued may continue to express the same price and number and kind of shares as
are stated in the Warrant Certificate initially issued pursuant to this
Agreement.
4.4 Fractional Interests. In computing adjustments under this Article 4,
fractional interests in Common Stock shall be taken into account to the nearest
one-thousandth of a share. No fractional shares of Common Stock or scrip
representing fractional shares of Common Stock shall be issued upon any exercise
of the Warrants, but, in lieu thereof, there shall be paid an amount in cash
equal to the same fraction of the Market Price of a whole share of Common Stock
on the business day preceding the day of exercise.
4.5 No Dilution or Impairment. The Corporation shall not amend its
Certificate of Incorporation or participate in any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, for the purpose of avoiding or seeking to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but will at all times, in good faith, assist in
carrying out all such actions as may be reasonably necessary or appropriate in
order to protect the rights of the holders of the Warrants against dilution or
other impairment as set forth in this Agreement.
ARTICLE 5
RESERVATION AND AUTHORIZATION OF COMMON SHARES
5.1 Reservation and Authorization. The Corporation shall at all times
reserve and keep available for issuance upon exercise of the Warrants such
number of its duly authorized but unissued shares of Common Stock or other
securities of the Corporation purchasable upon exercise of the Warrants as will
be sufficient to permit the exercise in full of all outstanding Warrants and
will cause appropriate evidence of ownership of such shares of Common Stock or
other securities to be delivered to the Holders of the Warrants upon their
request for delivery of such, and all such shares of Common Stock or other
securities shall, at all times, be duly approved for listing, subject to
official notice of issuance, on each securities exchange, if any, on which such
shares of Common Stock or other securities are then listed.
5.2 Covenant Regarding Secruities. The Corporation covenants that all
shares of Common Stock or other securities of the Corporation that may be issued
upon the exercise of the Warrants will, upon issuance, be (a) duly authorized,
validly issued, fully paid and nonassessable, (b) free from preemptive and any
other similar rights and (c) free from any taxes, liens, charges or security
interest with respect thereto except transfer taxes and Florida documentary
stamp taxes to the extent applicable thereto.
5.3 Registration. If the Warrant Shares or any securities of the
Corporation issuable to NationsBank upon the exercise of the Warrants require
registration with, or approval of, any governmental authority (in addition to
such as the Corporation is required to obtain pursuant to
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Article 7 hereof), or the taking of any other action (in addition to such as the
Corporation is required to obtain pursuant to Article 7 hereof), under the laws
of the United States of America or any state or political subdivision thereof,
before such securities may be validly offered or sold in compliance with such
laws, then the Corporation covenants that it will, in good faith and as
expeditiously as practicable, endeavor to secure and maintain such registration
or approval or to take such other action, as the case may be; provided, however,
that the Corporation will not be required to qualify generally to do business in
any jurisdiction where it is not then so qualified or to take any action that
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject; provided, further, that the
expenses of such registration shall be allocated in accordance with the
provisions the Registration Rights Agreement.
ARTICLE 6
WARRANT TRANSFER BOOKS; RESTRICTIONS ON TRANSFER
6.1 Transfer and Exchange.
(a) Warrant Register. The Corporation shall keep and maintain at its
office a register in which, subject to such reasonable regulations as it may
prescribe, the Corporation shall provide for the registration of the Warrant
Certificates on the Corporation's records and transfers or exchanges of the
Warrant Certificates as herein provided.
(b) Restrictions on Transfer. (i) Each of NationsBank and its Affiliates
who are issued Warrants pursuant to this Warrant Agreement (A) represents that
it is acquiring the Warrants for its own account for investment and not with a
view to any distribution or public offering within the meaning of the Securities
Act, except in any case pursuant to the registration of such Warrants or Warrant
Shares under the Securities Act or any state securities or "blue sky" laws or
pursuant to a valid exemption from such registration requirement, (B)
acknowledges that the Warrants and the Warrant Shares issuable upon exercise
thereof have not been registered under the Securities Act or any state
securities or "blue sky" laws and (C) agrees that it will not sell or otherwise
transfer any of its Warrants or Warrant Shares except upon the terms and
conditions specified herein and that it will cause any transferee thereof to
agree to take and hold the same subject to the terms and conditions specified
herein, (D) acknowledges that any transfer agent now or hereafter employed or
utilized by the Corporation shall be instructed not to effect transfer of the
Warrants or the Warrant Shares issuable upon exercise thereof without prior
authorization from the Corporation in accordance with the terms hereof (or, if
the Corporation serves as its own transfer agent, a notation shall be made in
the Corporation's records indicating the transfer restrictions to which the
Warrants and Warrant Shares issuable upon exercise thereof are subject and that
the Warrants and the Warrant Shares may only be transferable in accordance with
this Agreement); and (E) represents it (I) is an "accredited investor" (as
defined in Rule 501(a)(1) of Regulation D promulgated under the Securities Act
by the Commission); (II) has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of its
investment in the Warrants and Warrant Shares issuable upon exercise of the
Warrants; (III) is able to bear the complete loss of its investment in the
Warrants and Warrant Shares issuable upon exercise of the Warrants; (IV) has had
the opportunity to ask questions of, and receive answers from, the Corporation
and its management concerning the
14
terms and conditions of the offering of the Warrants and Warrant Shares issuable
upon exercise of the Warrants and to obtain additional information; and (V) is
not relying upon any statements or instruments made or issued by any person
other than the Corporation in making its decision to invest in the Warrants and
Warrant Shares issuable upon exercise of the Warrants; and (ii) each of
NationsBank and its Affiliates who are issued Warrants pursuant to this
Agreement (A) is domiciled in North Carolina and received its offer to purchase
Warrants and Warrant Shares in North Carolina; (B) understands that the
Warrants and Warrant Shares issuable upon exercise of the Warrants will be
considered restricted securities within the meaning of Rule 144 under the
Securities Act; that Rule 144 may not be available for exemption from the
registration requirements of the Securities Act for the sale of such restricted
securities; that if Rule 144 is available, sales may be made in reliance upon
Rule 144 only in accordance with the terms and conditions of Rule 144, which
among other things generally requires that the securities be held for at least
one year and that sales shall be made in limited amounts; and that, if an
exemption for such sales by such holder of the Warrants or the Warrant Shares is
not available, registration of the securities may be required, but that the
Corporation is under no obligation to register the securities or to facilitate
compliance or to comply with any exemption except pursuant to Article 7 of this
Agreement; and (C) agrees that it will not sell, transfer, hypothecate, or
otherwise dispose of any of the Warrants and Warrant Shares issuable upon
exercise of the Warrants, except in compliance with the Securities Act and
applicable securities laws.
(c) Right of First Refusal. Notwithstanding any other provision of this
Agreement, until the Corporation consummates a Qualified Initial Public
Offering, no assignment, transfer or sale of any Warrants or any Warrant Shares
(other than a sale to an Affiliate) shall be made except in compliance with this
Agreement and the following right of first refusal:
(i) If any Holder of Warrants or Warrant Shares (the "Selling
Warrant Holder") desires to dispose of any Warrants or Warrant Shares, (the
"Offered Warrant Securities"), except as otherwise permitted hereunder, such
Selling Warrant Holder shall first give written notice (the "Warrant Securities
Offer Notice") to the Corporation. A Warrant Securities Offer Notice shall (A)
indicate that such Selling Warrant Holder wishes to dispose of the Offered
Warrant Securities, and (B) state the price and other material terms upon which
such Selling Warrant Holder wishes to dispose of such Warrant Securities and
offer to sell the Offered Warrant Securities, in whole (but not in part) (the
"Warrant Securities Offer") at the price and on the other material terms
described in the Warrant Securities Offer Notice, first, to the Corporation
and/or its designees.
(ii) The Corporation and/or its designees may offer to accept a
Warrant Securities Offer in whole (but not in part) by giving notice to the
Selling Warrant Holder within thirty (30) days after the Warrant Securities
Offer Date. The closing of such sale of Offered Warrant Securities shall be
consummated within five (5) days after the date the Corporation's and/or its
designees' offer is accepted by the Selling Warrant Holder at the principal
office of the Corporation (or at such other times or places as such Selling
Warrant Holder and the Corporation and/or its designees may agree).
(iii) if the Offered Warrant Securities have not been accepted by
the Corporation and/or its designees in accordance with this Section 6.1(c), the
Selling Warrant Holder may dispose of the Offered Warrant Securities, to one or
more Persons who each agree in writing to be bound by the terms of this
Agreement, on substantially the same terms but not more favorable than those
stated
15
in the Warrant Securities Offer Notice, at any time up to one hundred (100) days
after the Warrant Securities Offer Date. Thereafter, the provisions of this
Section 6.1(c) will again apply.
(d) Notice of Transfer. Prior to or promptly after any assignment,
transfer or sale of the Warrants or any Warrant Shares, the Holder thereof shall
give written notice to the Corporation of such Holder's intention to effect such
assignment, transfer or sale, which notice shall set forth the date of such
proposed assignment, transfer or sale and the identity of the proposed
transferee. Each Holder wishing to effect such a transfer of the Warrants or any
Warrant Shares shall also furnish to the Corporation an agreement by the
transferee thereof that it is taking and holding the same subject to the terms
and conditions specified herein and a written opinion of such Holder's counsel,
in form reasonably satisfactory to the Corporation, to the effect that the
proposed transfer may be effected without registration under the Securities Act
and applicable state securities laws.
(e) Legend. Except as provided in Section 6.1(f) hereof, each Warrant
Certificate and each certificate for the Warrant Shares issued to NationsBank or
an Affiliate thereof or to a subsequent transferee thereof pursuant to Section
6.1(d) shall include the legend in substantially the form set forth in Section
2.2; provided that such legend shall not be required if such transfer is being
made in connection with a sale which is exempt from registration pursuant to
Rule 144 under the Securities Act.
(f) Termination of Transfer Restrictions. The restrictions set forth in
Sections 6.1(b) through (e) shall terminate and cease to be effective (i) if the
Warrants or any Warrant Shares issuable upon exercise thereof are registered
under the Securities Act and, in the case of Warrant Shares, when such Warrant
Shares are sold in reliance upon Rule 144 or (ii) on such earlier date as of
which the Corporation shall determine that such restrictions are no longer
required under applicable securities laws (and the Corporation shall respond
promptly, reasonably and in good faith to any reasonable request that the
Corporation make such a determination). Whenever such restrictions shall so
terminate the Holder of such Warrants and/or Warrant Shares shall be entitled to
receive from the Company, without expense (other than transfer taxes and Florida
documentary stamp tax, to the extent applicable), a new Warrant Certificate(s)
or certificates for such Warrant Shares not bearing the legend set forth in
Section 2.2 at which time the Company shall rescind any transfer restrictions
relating thereto.
ARTICLE 7
REGISTRATION RIGHTS
NationsBank (and its permitted transferees and assignees of this
Agreement) shall have and be entitled to exercise the rights of registration
granted to, and shall be subject to the obligations of, "Other Stockholders"
under the Registration Rights Agreement. As a condition precedent thereto,
NationsBank and each subsequent permitted transferee and assignee shall execute
and deliver to the Corporation and each other party to the Registration Rights
Agreement a counterpart signature page thereto.
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ARTICLE 8
MISCELLANEOUS
8.1 Loss or Mutilation. Upon receipt by the Corporation of (a) evidence
satisfactory to it of the ownership, and the loss, theft, destruction or
mutilation, of any Warrant Certificate and (b) of indemnity satisfactory to it
or, in the ease of mutilation, upon surrender and cancellation of the mutilated
Warrant Certificate, then, the Corporation shall execute and deliver to the
registered Holder of the lost, stolen, destroyed or mutilated Warrant
Certificate, in exchange for or in lieu thereof, a new Warrant Certificate of
the same tenor and for a like aggregate number of Warrant Shares. Upon the
issuance of any new Warrant Certificate under this Section 8.1, the Corporation
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and other expenses
in connection therewith including any transfer taxes and Florida documentary
stamp tax. Every new Warrant Certificate executed and delivered pursuant to this
Section in lieu of any lost, stolen or destroyed Warrant Certificate shall
constitute a contractual obligation of the Corporation, whether or not the
allegedly lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement.
The provisions of this Section 8.1 are exclusive and shall preclude (to the
extent lawful) all other rights or remedies with respect to the replacement of
the mutilated, lost, stolen, or destroyed Warrant Certificate.
8.2 Payment of Taxes. The Corporation shall pay any taxes and other
governmental charges that may be imposed on the Corporation under the laws of
the United States of America or any political subdivision or taxing authority
thereof or therein in respect of the issue or delivery of Warrant Shares or of
other securities or property deliverable upon exercise of the Warrants. The
Corporation shall not be required, however, to pay any tax or other charge
imposed in connection with any transfer involved in the issue of any certificate
for Warrant Shares or other securities or property issuable upon the exercise of
the Warrants or payment of cash to any person other than the Holder of a Warrant
Certificate surrendered upon exercise of the Warrants and in case of such
transfer or payment, the Corporation shall not be required to issue any stock
certificate or pay any cash until such tax or charge has been paid or it has
been established to the Corporation's satisfaction that no such tax or charge is
due.
8.3 Notices. Any notice, demand or delivery authorized by this Agreement
shall be in writing and shall be delivered by hand or overnight courier service,
mailed or set by facsimile as follows:
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To the Corporation:
Vitas Healthcare Corporation
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telephone No. (000) 000-0000
To NationsBank:
NationsBank, N.A.
Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telecopy: (000) 000-0000
or such other address or telecopy number as shall have been furnished to the
party giving or making such notice, demand or delivery. Any notice that is sent
in a manner provided herein shall have been duly given when sent.
8.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO
CONFLICTS OF LAW PRINCIPLES THEREOF.
8.5 Assignment; Successors. Subject to Section 6.1 hereof, this Agreement
may be assigned by NationsBank to any Affiliate at any time upon written notice.
This Agreement shall be binding upon and inure to the benefit of the Corporation
and the Holders and their respective successors and assigns, and the Holders
from time to time of the Warrants. Nothing in this Agreement is intended or
shall be construed to confer upon any person, other than the Corporation, and
the Holders, any right, remedy or claim under or by reason of this Agreement or
any part hereof.
8.6 Counterparts. This Agreement may be executed manually or by facsimile
in any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
8.7 Amendments. Any provision of this Agreement or the Warrant Certificate
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed by the Corporation and the Holders of a majority in interest of
the issued or issuable Warrant Shares; provided, however, if any amendment
adversely affects the Exercise Price or the number of Warrant Shares issued upon
exercise of any Warrant, then the Holders of all the issued or issuable Warrant
Shares must sign the amendment.
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8.8 Headings. The descriptive headings of the several Sections of this
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
8.9 Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Corporation, on the
one hand, and NationsBank, on the other hand, and the Holders shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of the
Holder hereunder.
8.10 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
8.11 No Inconsistent Agreements. Except as set forth in the Registration
Rights Agreement, the Corporation has not, as of the date hereof, entered into,
nor shall it, on or after the date hereof, enter into, any agreement that is
inconsistent with the rights granted to the Holders herein or that otherwise
conflicts with the provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered, as of the date first above written
VITAS HEALTHCARE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
NATIONSBANK, N.A.
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
20
