EXHIBIT 10.108
Exhibit B to Preferred
Stock Purchase Agreement
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
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September 30, 1997, by and between RAMSAY HEALTH CARE, INC., a Delaware
corporation (the "Company"), and GENERAL ELECTRIC CAPITAL CORPORATION, a New
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York corporation ("Purchaser").
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RECITALS
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A. The Company and Purchaser have entered into a Preferred Stock Purchase
Agreement of even date herewith (the "Preferred Stock Purchase Agreement"),
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pursuant to which the Company has agreed to issue and sell to Purchaser, and
Purchaser has agreed to purchase from the Company, 100,000 shares of Class B
Preferred Stock, Series 1997, $1.00 par value per share, of the Company (the
"Series 1997 Preferred Stock");
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B. The Series 1997 Preferred Stock is convertible into shares of common stock,
$0.01 par value per share, of the Company ("Common Stock") upon the exercise of
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certain conversion rights set forth in the Certificate of Designations
authorizing and designating the Series 1997 Preferred Stock (the "Certificate of
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Designations"); and
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C. In order to induce Purchaser to enter into the Preferred Stock Purchase
Agreement and to purchase the Series 1997 Preferred Stock, the Company has
agreed to provide registration rights with respect to any shares of Common Stock
issued upon the exercise of such conversion rights;
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and intending to be legally bound, the parties hereto
agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
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Preferred Stock Purchase Agreement are used herein as therein defined, and the
following shall have (unless otherwise provided elsewhere in this Agreement) the
following respective meanings (such meanings being equally applicable to both
the singular and plural form of the terms defined):
"Affiliate" shall mean, with respect to any Person: (a) each Person that,
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directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the capital stock
having ordinary voting power in the election of directors of such Person, (b)
each Person that controls, is controlled by or is under common control with such
Person, and (c)
each of such Person's executive officers and directors. For the purpose of this
definition, "control" of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" shall mean this Registration Rights Agreement, including all
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amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to the Agreement as the same may be in effect
at the time such reference becomes operative.
"Business Day" shall mean any day that is not a Saturday, a Sunday or a day
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on which banks are required or permitted to be closed in the State of New York
or a day on which Purchaser is closed for business.
"Commission" shall mean the Securities and Exchange Commission or any other
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federal agency then administering the Securities Act, the Exchange Act and other
federal securities laws.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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or any successor federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"NASD" shall mean the National Association of Securities Dealers, Inc., or
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any successor corporation thereto.
"Person" shall mean any individual, sole proprietorship, partnership,
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limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, entity or
government (whether federal, state, county, city, municipal or otherwise,
including any instrumentality, division, agency, body or department thereof).
"Registrable Securities" shall mean the Common Stock issued upon the
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exercise by a holder of Series 1997 Preferred Stock of the conversion rights
with respect thereto set forth in the Certificate of Designations.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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successor federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
2. Required Registration. After receipt of a written request from holders of
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Registrable Securities representing at least an aggregate of 33% of the total of
all Registrable Securities then outstanding, requesting that the Company effect
the registration of Registrable Securities under the Securities Act and
specifying the intended method or methods of disposition thereof, the Company
shall promptly notify all holders of Registrable Securities in writing of the
receipt of such request and
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each such holder may elect (by written notice sent to the Company within ten
Business Days from the date of such holder's receipt of the aforementioned
Company's notice) to have Registrable Securities held by such holder included in
such registration thereof pursuant to this Section 2. Thereupon the Company
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shall, as expeditiously as is possible, use its best efforts to effect the
registration under the Securities Act of all shares of Registrable Securities
which the Company has been so requested to register by such holders for sale,
all to the extent required to permit the disposition (in accordance with the
intended method or methods thereof, as aforesaid) of the Registrable Securities
so registered; provided, however, that (i) the Company shall not be required to
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effect more than one registration of any Registrable Securities pursuant to this
Section 2, (ii) in the event that the Board of Directors of the Company
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determines in good faith that the registration of Registrable Securities would
require the disclosure of material nonpublic information and that disclosure of
such material nonpublic information would not be in the best interests of the
Company and its stockholders, then, upon notice to the holders of the
determination that has been made hereunder, the Company shall not be required to
file a registration statement until the earlier of the second day after the
condition described above has ceased to exist and the 60th day following receipt
by the Company of the notice from the holders requesting registration under this
Section 2, and (iii) nothing in this Agreement shall require the Company to
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effect an underwritten public offering of the Registrable Securities.
Notwithstanding anything to the contrary contained herein, the obligation of the
Company under this Section 2 shall be satisfied only when a Registration
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Statement covering all shares of Registrable Securities specified in notices
received as aforesaid, for sale in accordance with the method of disposition
specified by the requesting holders, shall have become effective and remained
effective for the period set forth in Section 4(a). The Company will not effect
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any other registration of its Common Stock for its own account or (other than a
Registration Statement on Form S-4 or S-8 or any successor form for securities
to be offered in a transaction of the type referred to in Rule 145 under the
Securities Act or to employees of the Company pursuant to any employee benefit
plan, respectively) for the account of any holder who is an Affiliate of the
Company, from the date of receipt of a notice from requesting holders pursuant
to this Section 2 until the end of the period described in Section 4(a).
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3. Incidental Registration. If the Company at any time proposes to file on
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its behalf and/or on behalf of any of its security holders (the "Demanding
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Security Holders") a Registration Statement under the Securities Act on any form
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(other than a Registration Statement on Form S-4 or S-8 or any successor form
for securities to be offered in a transaction of the type referred to in Rule
145 under the Securities Act or to employees of the Company pursuant to any
employee benefit plan, respectively) for the general registration of securities
to be sold for cash with respect to its Common Stock or any other class of
equity security (as defined in Section 3(a)(11) of the Exchange Act) of the
Company, it will give written notice to all holders of Registrable Securities at
least 20 days before the initial filing with the Commission of such Registration
Statement, which notice shall set forth the intended method of disposition of
the securities proposed to be registered by the Company. The notice shall offer
to include in such filing the aggregate number of shares of Registrable
Securities as such holders may request.
Each holder of any such Registrable Securities desiring to have Registrable
Securities registered under this Section 3 shall advise the Company in writing
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within 15 days after the date of
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receipt of such offer from the Company, setting forth the amount of such
Registrable Securities for which registration is requested. The Company shall
thereupon include in such filing the number of shares of Registrable Securities
for which registration is so requested, subject to the next sentence, and shall
use its best efforts to effect registration under the Securities Act of such
shares. If the managing underwriter of a proposed underwritten public offering
shall advise the Company in writing that the distribution of the Registrable
Securities requested to be included in the registration concurrently with the
securities being registered by the Company or such Demanding Security Holder
would materially and adversely affect the distribution of such securities by the
Company or such Demanding Security Holder, then the Company shall include
securities in such registration in the following order of priority (A) first, up
to the full number of securities proposed to be offered by the Company or
proposed to be offered by the holders of the Life Company Warrants pursuant to
the demand registration rights set forth in Section 11.3 of such Warrants; (B)
second, up to the full number of securities proposed to be offered by the
holders of the Registrable Securities and any other Demanding Security Holders
who are not Affiliates of the Company (and if such full number may not be
included, then on a pro rata basis in proportion to the respective number of
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securities proposed to be offered by such persons); and (C) third, up to the
full number of securities proposed to be offered by any Demanding Security
Holders who are Affiliates of the Company. Except as otherwise provided in
Section 5, all expenses of such registration shall be borne by the Company.
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4. Registration Procedures. If the Company is required by the provisions of
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Section 2 or 3 to use its best efforts to effect the registration of any
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Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement with
respect to such securities and use its best efforts to cause such Registration
Statement to become and remain effective for a period of time required for the
disposition of such securities by the holders thereof; provided that such period
of time shall not exceed 180 days;
(b) prepare and file with the Commission such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective and to comply
with the provisions of the Securities Act with respect to the sale or other
disposition of all securities covered by such Registration Statement until the
earlier of such time as all of such securities have been disposed of in a public
offering or the expiration of 180 days and promptly notify each holder for whom
such Registrable Securities are covered by such Registration Statement, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such Registration Statement, 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, in light of the
circumstances under which they were made, the statements therein not misleading,
and at the request of any such holder promptly prepare and furnish to such
holder 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 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
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to make, in light of the circumstances under which they were made, the
statements therein not misleading;
(c) furnish to such selling security holders such number of copies of a
summary prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, as such selling security
holders may reasonably request in order to facilitate the public sale or other
sale or transfer of such securities;
(d) use its best efforts to register or qualify the securities covered by
such Registration Statement under such other securities or blue sky laws of such
jurisdictions within the United States and Puerto Rico as each holder of such
securities shall reasonably request (provided, however, the Company shall not be
obligated to qualify as a foreign corporation to do business under the laws of
any jurisdiction in which it is not then qualified or to file any general
consent to service or process), and do such other reasonable acts and things as
may be required of it to enable such holder to consummate the disposition in
such jurisdiction of the securities covered by such Registration Statement;
(e) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed and,
if not so listed, to be listed on a securities exchange or the NASD automated
quotation system and, if listed on the NASD automated quotation system, use its
best efforts to secure designation of all such Registrable Securities covered by
such registration statement as a NASDAQ national market system security or,
failing that, to secure NASDAQ authorization for such Registrable Securities;
(f) furnish, at the request of any holder requesting registration of
Registrable Securities pursuant to Section 2, on the date that such shares of
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Registrable Securities are delivered to any underwriters upon the closing of the
related public offering or, if such Registrable Securities are not being sold
through underwriters, on the date that the Registration Statement with respect
to such shares of Registrable Securities becomes effective, (1) an opinion,
dated such date, of the independent counsel representing the Company for the
purposes of such registration, addressed to the underwriters, if any, and if
such Registrable Securities are not being sold through underwriters, then to the
holders making such request, stating that such Registration Statement has become
effective under the Securities Act and (i) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (ii) the Registration Statement, the
related prospectus, and each amendment or supplement thereto, comply as to form
in all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder (except that such
counsel need express no opinion as to financial statements or other financial or
statistical data contained therein), and to the effect that, on the basis of its
involvement in the preparation of the Registration Statement, such counsel does
not believe that either the Registration Statement or the prospectus, or any
amendment or supplement thereto (other than financial statements, as to which
such counsel need make no statement) contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make
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the statements therein, in light of the circumstances in which made, not
misleading and (iii) as to such other matters and effects as may reasonably be
requested by counsel for the underwriter, or by the holder requesting
registration or its counsel; and (2) a letter dated such date, from the
independent accountants of the Company, addressed to the underwriters, if any,
and if such Registrable Securities are not being sold through underwriters, then
to the holder making such request and, if such accountants decline to deliver
such letter to such holder, then to the Company stating that they are
independent accountants within the meaning of the Securities Act and that the
financial statements of the Company included in the Registration Statement or
the prospectus, or any amendment or supplement thereto, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act. Such letter from the independent accountants shall additionally cover
such other financial matters (including information as to the period ending not
more than 5 Business Days prior to the date of such letter) with respect to the
registration in respect of which such letter is being given as the holders of
Registrable Securities being so registered may reasonably request; and
(g) enter into customary agreements (including an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of such Registrable Securities; and as
shall be required in connection with the action taken by the Company.
Each holder of the Registrable Securities agrees that, upon receipt of a
written notice from the Company that describes the happening of any event as a
result of which the prospectus included in the registration statement for the
Registrable Securities, as then in effect, includes an untrue statement of a
material fact or omits 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 were made, not misleading, it will forthwith discontinue its
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such holder's receipt of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such 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 were made, not misleading and, if
so requested by the Company in writing, will deliver to the Company (at the
Company's expense) all copies then in their possession, other than permanent
file copies, of the prospectus relating to such Registrable Securities.
5. Expenses. All expenses incurred in complying with this Agreement,
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including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), printing expenses, fees and
disbursements of counsel for the Company, the reasonable fees and expenses of
one counsel for all of the sellers of Registerable Securities (selected by those
holding a majority of the shares being registered), expenses of any special
audits incident to any such registration and expenses (including reasonable
attorneys' fees) of complying with the securities or blue sky laws of any
jurisdictions pursuant to Section 4(d), shall be paid by the Company, except
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that
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(a) all such expenses in connection with any amendment or supplement to the
Registration Statement or prospectus filed more than 6 months after the
effective date of such Registration Statement because any holder of Registrable
Securities has not effected the disposition of the securities requested to be
registered shall be paid by such holder; and
(b) the Company shall not be liable for any fees, discounts or commissions
to any underwriter or any fees or disbursements of counsel for any underwriter
in respect of the securities sold by such holder of Registrable Securities.
6. Indemnification and Contribution.
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(a) In the event of any registration of any Registrable Securities under
the Securities Act pursuant to this Agreement, the Company will indemnify and
hold harmless the holder of such Registrable Securities, such holder's directors
and officers, and each underwriter who participated in the offering of such
Registrable Securities and each other person, if any, who controls such holder
or such participating person within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several (including
reasonable attorneys' fees and expenses), to which such holder or any such
director or officer or participating person or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) an untrue statement or an alleged untrue statement of any material fact
contained in any Registration Statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or (ii) an
omission or an alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse such holder or such director, officer or participating person or
controlling person for any reasonable legal or other out-of-pocket expenses
reasonably incurred in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company shall
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not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement, preliminary prospectus, prospectus or amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such holder expressly for use therein or (in the case of an
underwritten offering pursuant to Section 2) so furnished for such purposes by
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any underwriter ; and provided further, however, that the Company shall not be
liable with respect to any preliminary prospectus to any person from whom the
person asserting any such loss, claim, limit, damage or liability purchased
shares which are the subject thereof if such person did not receive a copy of
the final prospectus (or the final prospectus as supplemented) at or prior to
the confirmation of the sale of such shares to such person in any case where
such delivery is required by the Securities Act and (a) the defect in such
preliminary prospectus was cured by the final prospectus (or the final
prospectus as supplemented) and (b) such person had previously been furnished by
or on behalf of the Company (prior to the date of mailing by the underwriter of
the applicable confirmation) with a sufficient number of copies of the
prospectus as so amended or supplemented. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
holder or
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such director, officer or participating Person or controlling Person, and shall
survive the transfer of such securities by such holder.
(b) In the event of any registration of any Registrable Securities under
the Securities Act pursuant to this Agreement, each seller of any Registrable
Securities will furnish to the Company in writing such information as the
Company reasonably requests in connection with the registration of such
Registratable Securities, including any such information as the Commission shall
request, and each such Seller shall, severally and not jointly, will indemnify
and hold harmless the Company, its directors, each officer who signs the
Registration Statement and each other person, if any, who controls the Company
within the meaning of the Securities Act against any losses, claims, damages or
liabilities to which the Company or any such director or officer or any such
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
statement or the prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any preliminary prospectus, the Registration Statement or
the prospectus or any such amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by such holder
of Registrable Securities expressly for use therein; provided, however, that the
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liability of each holder hereunder shall be limited to the proceeds received by
such holder from the sale of Registrable Securities covered by such Registration
Statement.
(c) Promptly after receipt by an indemnified party under subsections (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection other than to the extent such delay
or failure so to notify has had an adverse effect on the indemnifying party. In
case any such action shall be brought against any indemnified party, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 6 from the
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indemnifying party is unavailable to hold harmless an indemnified party
hereunder in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein and with respect to which such
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party would otherwise be entitled to indemnify by virtue thereof, then the
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 or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the holders of Registrable Securities on the
other. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party shall
contribute such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative faults of the Company on the one hand and the holders of
Registrable Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
parties shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above shall be deemed to include any
reasonable legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
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allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this subsection (d), no holder of Registrable
Securities shall be required to contribute any amount in excess of the amount by
which the proceeds received by such holder from the sale of Registrable
Securities covered by such Registration Statement exceeds the amount of any
damages which such holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement of omission or alleged omission. 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.
7. Certain Limitations on Registration Rights. Notwithstanding the other
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provisions of this Agreement, the Company shall not be obligated to register the
Registrable Securities of any holder if, in the opinion of counsel to the
Company reasonably satisfactory to the holder and its counsel (or, if the holder
has engaged an investment banking firm, to such investment banking firm and its
counsel), the sale or other disposition of such holder's Registrable Securities,
in the manner proposed by such holder (or by such investment banking firm),
other than in an underwritten offering, may be effected without registering such
Registrable Securities under the Securities Act.
8. Selection of Managing Underwriters. In the event that the Company
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determines to effect an underwritten offering, the managing underwriter or
underwriters for any offering of Registrable Securities to be registered
pursuant to Section 2 shall be selected by the Company,
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provided that such selections shall be reasonably acceptable to the holders of a
majority of the shares being so registered (other than any shares being
registered pursuant to Section 3).
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9. Miscellaneous.
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(a) No Inconsistent Agreements. The Company will not hereafter enter into
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any agreement with respect to its securities which grants registration rights to
any Person inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement (it being agreed that any such rights shall be
considered inconsistent with the rights granted to such holders unless expressly
subordinated to the rights of the holders of the Registrable Securities set
forth in Sections 2 and 3 hereof). The Company represents and warrants that it
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has not previously entered into any agreement with respect to any of its
securities granting any registration rights to any Person, other than (i) the
registration rights granted hereunder and (ii) the registration rights granted
under (A) Registration Rights Agreement dated as of October 25, 1994 by and
among the Company and Xxxx Xxxxxx Holdings Pty. Ltd., (B) the Stockholder's
Agreement dated as of June 30, 1994, between FPM Behavioral Health, Inc. and
Phoenix South Community Mental Health Center, Inc., (C) the Warrant to purchase
Common Stock issued by the Company to Monumental Life Insurance Company, dated
July 31, 1991, and (D) the Warrant to purchase Common Stock issued by the
Company to Aetna Life Insurance Company dated April 30, 1990 (the Warrants in
clause (C) and (D), collectively, the "Life Company Warrants") (and the Company
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hereby represents and warrants that the rights granted under those agreements
are not inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement).
(b) Remedies. Each holder of Registrable Securities, in addition to being
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entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
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. The Company further agrees
that, if the Company fails to comply with any provision of this Agreement, the
Company shall pay to the holders of Registrable Securities affected thereby such
amounts as shall be sufficient to cover any reasonable out-of-pocket costs and
expenses, including, but not limited to, reasonable attorneys' fees, including
those of appellate proceedings, incurred by such holders in enforcing any of
their rights or remedies hereunder.
(c) Amendments and Waivers. Except as otherwise provided herein, the
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provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departure from the provisions hereof may not be given
unless the Company has obtained the written consent of holders of at least a
majority of each class of the Registrable Securities then outstanding.
(d) Notice Generally. Any notice, demand, request, consent, approval,
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declaration, delivery or other communication hereunder to be made pursuant to
the provisions of this Agreement shall be sufficiently given or made if in
writing and either delivered in person with receipt acknowledged, delivered by
reputable overnight courier, telecopied and confirmed separately in
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writing by a copy mailed as follows or sent by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
(i) If to the Company at:
Ramsay Health Care, Inc.
Columbus Center
Xxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Attn: President
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Cost, Esq.
Telecopier No.: (000) 000-0000
(ii) If to Purchaser at:
General Electric Capital Corporation
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx
Telecopier No.: (000) 000-0000
With copies to:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Region Counsel - Commercial Finance
Telecopier No.: (000) 000-0000
and
00
Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx Xxxx Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
(iii) If to any other holder of Registrable Securities at its
last known address appearing on the books of the Company maintained for such
purpose;
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, on the date of delivery by reputable
overnight courier service, on the date of telecopier transmission or three (3)
Business Days after the same shall have been deposited in the United States
mail. Failure or delay in delivering copies of any notice, demand, request,
approval, declaration, delivery or other communication to the person designated
above to receive a copy shall in no way adversely affect the effectiveness of
such notice, demand, request, approval, declaration, delivery or other
communication.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties hereto
including any Person to whom shares of Series 1997 Preferred Stock or
Registrable Securities are transferred in accordance with the provisions of the
Preferred Stock Purchase Agreement.
(f) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
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THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THAT
STATE.
(h) Severability. Wherever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(i) Counterparts. This Agreement may be executed in any number of
------------
separate counterparts, each of which shall, collectively and separately,
constitute one agreement.
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IN WITNESS WHEREOF, the Company and Purchaser have executed this Agreement
as of the date first above written.
RAMSAY HEALTH CARE, INC.
By:_______________________________
Xxxxxxxx X. Xxxxxx
President
GENERAL ELECTRIC CAPITAL
CORPORATION
By:_______________________________
Xxxxxx X. Xxxx
Authorized Signatory
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