Exhibit 4.2
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6-1/4% CONVERTIBLE SUBORDINATED NOTES DUE 2004
REGISTRATION RIGHTS AGREEMENT
Dated as of August 15, 1997
by and among
CAREMATRIX CORPORATION,
as the Company,
and
XXXXXXXXX, XXXXXXXX & COMPANY LLC,
XXXXXX XXXXXXX & CO. INCORPORATED,
PAINEWEBBER INCORPORATED,
SALOMON BROTHERS INC
and
XXXXX XXXXXX INC.,
as Purchasers
This Registration Rights Agreement is made and entered into as of
August 15, 1997, by and among CareMatrix Corporation, a Delaware corporation
(the "Company"), and Xxxxxxxxx, Xxxxxxxx & Company LLC, Xxxxxx Xxxxxxx & Co.
Incorporated, PaineWebber Incorporated, Salomon Brothers Inc and Xxxxx Xxxxxx
Inc. (the "Purchasers") who have purchased or have the right to purchase up to
$115,000,000 in aggregate principal amount of 6-1/4% Convertible Subordinated
Notes due 2004 (the "Notes") of the Company pursuant to the Purchase Agreement
(as such term is defined below).
This Agreement is made pursuant to the Purchase Agreement, dated August
13, 1997, among the Company and the Purchasers (the "Purchase Agreement"). In
order to induce the Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide the registration rights provided for in this Agreement to
the Purchasers and their respective direct and indirect transferees (i) for the
benefit of the Purchasers, (ii) for the benefit of the holders from time to time
of the Notes (including the Purchasers) and the holders from time to time of the
Common Stock issuable or issued upon conversion of the Notes and (iii) for the
benefit of the securities constituting the Transfer Restricted Securities. The
execution of this Agreement is a condition to the closing of the transactions
contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Accredited Investor Notes: Notes initially resold by the
Purchasers pursuant to the Purchase Agreement to institutional "accredited
investors" (within the meaning of Rule 501(a)(1), (2), (3) or (7) promulgated by
the SEC under the Securities Act) (it being understood and agreed that such
Notes shall not include any Regulation S Notes) and all Notes issued upon
registration of transfer of or in exchange for such Notes.
Act: As defined in this Section 1.
Advice: As defined in the last paragraph of Section 2(d)
hereof.
Affiliate: An affiliate of any specified person shall mean any
other person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person. For the purposes of this
definition, "control," when used with respect to any person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise and
the terms "affiliated," "controlling" and "controlled" have meanings correlative
to the foregoing.
Agreement: This Registration Rights Agreement, as the same may
be amended, supplemented or modified from time to time in accordance with the
terms hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
Closing Date: August 18, 1997.
Common Stock: Common Stock, $.05 par value per share, of the
Company and any other shares of common stock as may constitute "Common Stock"
for purposes of the Indenture, in each case, as issuable or issued upon
conversion of the Notes.
Company: CareMatrix Corporation, a Delaware corporation, and
any successor corporation thereto.
controlling person: As defined in Section 6(a) hereof.
Damages Payment Date: Each of the semi-annual interest payment
dates provided in the Indenture.
Effectiveness Period: As defined in Section 2(a) hereof.
Effectiveness Target Date: The 120th day following the Closing
Date.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
Filing Date: The 60th day after the Closing Date.
Holder: Each beneficial owner of any Transfer Restricted
Securities.
Indemnified Person: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of the date hereof, between
the Company and the Trustee, pursuant to which the Notes are being issued, as
the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
Liquidated Damages: As defined in Section 3(a) hereof.
Purchasers: As defined in the first paragraph hereof.
Notes: The $100,000,000 aggregate principal amount of 6-1/4%
Convertible Subordinated Notes due 2004 of the Company being issued pursuant to
the Indenture (together with up to $15,000,000 aggregate principal amount of
such Notes, if, and to the extent, the Purchasers' over-allotment option is
exercised).
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Proceeding: An action, claim, suit or proceeding (including,
without limitation, an investigation or partial proceeding, such as a
deposition), whether commenced or threatened.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed in reliance upon Rule
430A), as amended or supplemented by any prospectus supplement, with respect to
the resale of any of the Transfer Restricted Securities covered by such
Registration Statement, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and all materials incorporated
by reference or deemed to be incorporated by reference, if any, in such
prospectus.
Purchase Agreement: As defined in the second paragraph hereof.
Record Holder: (i) with respect to any Damages Payment Date
relating to any Note as to which any such Liquidated Damages have accrued, the
registered Holder of such Note on the record date with respect to the interest
payment date under the Indenture on which such Damages Payment Date shall occur
and (ii) with respect to any Damages Payment Date relating to any shares of
Common Stock as to which any such Liquidated Damages have accrued, the
registered Holder of such shares 15 days prior to the next succeeding Damages
Payment Date.
Registration Default: As defined in Section 3(a) hereof.
Registration Statement: Any registration statement of the
Company filed with the SEC pursuant to the Securities Act that covers the resale
of any of the Transfer Restricted Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
Regulation S Notes: Notes initially resold by the Purchasers
pursuant to the Purchase Agreement outside the United States to certain persons
in offshore transactions in reliance on Registration S under the Securities Act
and all Notes issued upon registration of transfer of or in exchange for such
Notes.
Requisite Information: As defined in Section 2(c) hereof.
Rule 144: Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
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Rule 144A Notes: Notes initially resold by the Purchasers
pursuant to the Purchase Agreement to "qualified institutional buyers" (as such
term is defined in Rule 144A) (it being understood and agreed that such Notes
shall not include any Regulation S Notes) and all Notes issued upon registration
of transfer of or in exchange for such Notes.
Rule 158: Rule 158 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
Rule 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
Rule 424: Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
Rule 430A: Rule 430A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
Shelf Registration Statement: As defined in Section 2 (a)
hereof.
Special Counsel: The special counsel to the Holders.
TIA: The Trust Indenture Act of 1939, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Transfer Restricted Securities: Each Note, including each
Accredited Investor Note, Rule 144A Note and Regulation S Note, and each share
of Common Stock into which such Notes are converted or convertible (including
each share of Common Stock issued or issuable thereon upon any stock split,
stock combination, stock dividend or the like), upon original issuance thereof,
and at all times subsequent thereto, and associated related rights, if any,
until, in the case of any such Note or share (and associated rights) (i) the
date on which such Note or share of Common Stock has been effectively registered
under the Securities Act and disposed of in accordance with the Registration
Statement relating thereto, (ii) the date on which such Note or share of Common
Stock is distributed to the public pursuant to Rule 144 or is saleable pursuant
to paragraph (k) of Rule 144 (or similar provisions then in force) or (iii) the
date on which it ceases to be outstanding, whichever date is earliest; provided
that for purposes of the provisions hereof requiring the Company to register the
resale of Transfer Restricted Securities and related obligations, Common Stock
issuable upon conversion of outstanding Notes constituting Transfer Restricted
Securities shall be treated as
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outstanding (other than for purposes of Liquidated Damages and approval,
amendment and waiver provisions).
Trustee: The trustee under the Indenture.
underwritten registration or underwritten offering: A
registration in connection with which securities of the Company are sold to an
underwriter for reoffering to the public pursuant to an effective Registration
Statement.
References herein to the term "Holders of a majority in
aggregate principal amount of Transfer Restricted Securities" or words to a
similar effect shall mean, with respect to any request, notice, demand,
objection or other action by the Holders hereunder or pursuant hereto (each, an
"Act"), registered Holders of a number of shares of then-outstanding Common
Stock constituting Transfer Restricted Securities and an aggregate principal
amount of then outstanding Notes constituting Transfer Restricted Securities,
such that the sum of such shares of Common Stock and the shares of Common Stock
issuable upon conversion of such Notes constitutes in excess of 50% of the sum
of all of the then-outstanding shares of Common Stock constituting Transfer
Restricted Securities and the number of shares of Common Stock issuable upon
conversion of then- outstanding Notes constituting Transfer Restricted
Securities. For purposes of the immediately preceding sentence, (i) any Holder
may elect to take any Act with respect to all or any portion of Transfer
Restricted Securities held by it and only the portion as to which such Act is
taken shall be included in the numerator of the fraction described in the
preceding sentence and (ii) Transfer Restricted Securities owned, directly or
indirectly, by the Company or its Affiliates shall be deemed not to be
outstanding.
2. Shelf Registration Statement
(a) The Company agrees to file with the SEC as promptly as
practicable after the Closing Date, but in no event later than the Filing Date,
a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Transfer Restricted Securities or
separate Registration Statements for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Notes constituting Transfer
Restricted Securities and all of the Common Stock constituting Transfer
Restricted Securities, respectively (such Registration Statement or Registration
Statements, collectively, the "Shelf Registration Statement"). Each Shelf
Registration Statement shall be on Form S-3 under the Securities Act or another
appropriate form selected by the Company permitting registration of such
Transfer Restricted Securities for resale by the Holders in the manner or
manners reasonably designated by Holders of a majority in aggregate principal
amount of Transfer Restricted Securities being sold (including, without
limitation, up to two underwritten offerings). The Company shall use all
commercially reasonable efforts to not permit any securities other than the
Transfer Restricted Securities to be included in any Shelf Registration
Statement. The Company shall use all commercially reasonable efforts to cause
each Shelf Registration Statement to be declared effective pursuant to the
Securities Act as promptly as practicable but in no event later than the
Effectiveness Target Date and to keep each Shelf Registration Statement
continuously
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effective under the Securities Act until the earlier of such date that is two
years after the latest date of initial issuance of any of the Notes (the
"Effectiveness Period") or the date that all Transfer Restricted Securities
shall have been effectively registered under the Securities Act and disposed of
in accordance with the Registration Statement relating thereto or distributed to
the public pursuant to Rule 144 or are saleable pursuant to paragraph (k) of
Rule 144 (or similar provisions then in force).
(b) Supplements and Amendments. The Company shall use its best
efforts to keep each Shelf Registration Statement continuously effective by
supplementing and amending the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration Statement, if required by the Securities Act or if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities or by any underwriter of such Transfer
Restricted Securities; provided, however, that the Effectiveness Period shall be
extended as provided in Section 2(d) hereof.
(c) Selling Securityholder Information. Each Holder shall
furnish to the Company such information regarding the distribution of its
Transfer Restricted Securities as is required by law to be disclosed in the
applicable Registration Statement (the "Requisite Information") prior to
effecting any sale pursuant to such Registration Statement.
The Company shall file, within five Business Days after the
receipt of notice from any Holder which includes the Requisite Information with
respect to such Holder, a Prospectus supplement pursuant to Rule 424 or
otherwise amend or supplement such Registration Statement to include in the
Prospectus the Requisite Information as to such Holder (and the Transfer
Restricted Securities held by such Holder), and the Company shall provide such
Holder and the Special Counsel within two Business Days after receipt of such
notice with a copy of such Prospectus as so amended or supplemented containing
the Requisite Information in order to permit such Holder to comply with the
Prospectus delivery requirements of the Securities Act in a timely manner with
respect to any proposed disposition of such Holder's Transfer Restricted
Securities.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require, in the event that such reference to such
Holder by name or otherwise is not required by the Securities Act or any similar
federal statute then in force, the deletion of the reference to such Holder in
such Registration Statement at any time subsequent to the time that such
reference ceases to be required.
(d) Certain Notices; Suspension of Sales. Each Holder agrees
by acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 4(c)(ii), 4(c)(iii), 4(c)(v) or 4(c)(vi) hereof, such Holder will
forthwith discontinue disposition of such Transfer Restricted Securities covered
by such Registration Statement and Prospectus (other than in transactions exempt
from the registration requirements under the Securities Act) until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Sections 4(c) and 4(k) hereof, or until it is
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advised in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. If the Company shall give any such
notice, the Effectiveness Period shall be extended by the number of days during
such period from and including the date of the giving of such notice to and
including the date when each Holder shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Sections 4(i) and 4(k) hereof
or (y) the Advice, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus.
3. Liquidated Damages
(a) The Company and the Purchasers agree that the Holders will
suffer damages if the Company fails to fulfill its obligations pursuant to
Section 2 hereof and that it would not be possible to ascertain the extent of
such damages. Accordingly, the Company hereby agrees to pay liquidated damages
("Liquidated Damages") to each Holder under the circumstances and to the extent
set forth below:
(i) if the Shelf Registration Statement has not been
filed with the SEC on or prior to the Filing Date; or
(ii) if each Shelf Registration Statement is not
declared effective by the SEC on or prior to the applicable
Effectiveness Target Date; or
(iii) any Shelf Registration Statement is filed and
declared effective but shall thereafter cease to be effective
or usable at any time during the Effectiveness Period (without
being succeeded immediately on the same day by an additional
Shelf Registration Statement filed and declared effective
which is then available for effecting resales of Transfer
Restricted Securities) for a period of time which shall exceed
90 days in the aggregate in any period of 365 consecutive
days;
(any of the foregoing, a "Registration Default"). In the event of any such
Registration Default, the Company shall accrue Liquidated Damages to each Holder
during the first 90-day period immediately following the occurrence of such
Registration Default in an amount equal to $.05 per week per $1,000 principal
amount of Notes and, if applicable, on an equivalent basis per share (subject to
appropriate adjustment in the event of any stock split, stock combination, stock
dividends and the like) of Common Stock constituting Transfer Restricted
Securities held by such Holder for each week or portion thereof that the
Registration Default continues. The weekly rate at which such Liquidated Damages
accrue shall increase by an additional $.05 per $1,000 principal amount of Notes
and, if applicable, by an equivalent amount per week per share (subject to
adjustment as set forth above) of Common Stock constituting Transfer Restricted
Securities for each subsequent continuing 90-day period following the occurrence
of such Registration Default until all Registration Defaults have been cured;
provided, however, that Liquidated Damages shall not at any time exceed
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$.25 per week per $1,000 principal amount of Notes or, as applicable, an
equivalent amount per week per share (subject to adjustment as set forth above)
of Common Stock constituting Transfer Restricted Securities. Following the cure
of all Registration Defaults, the accrual of Liquidated Damages shall cease
(without in any way limiting the effect of any subsequent Registration Default).
A Registration Default under clause (i) above shall be cured on the date that
the applicable Shelf Registration Statement is filed with the SEC; a
Registration Default under clause (ii) above shall be cured on the date that the
applicable Shelf Registration Statement is declared effective by the SEC and
becomes available for effecting sales of securities; and a Registration Default
under clause (iii) above shall be cured on the date the applicable Shelf
Registration Statement is declared effective or otherwise usable and becomes
available for effecting sales of securities.
(b) The Company shall notify the Trustee within one Business
Day after each and every date on which a Registration Default occurs. Liquidated
Damages shall be paid by the Company to the Record Holders on each Damages
Payment Date by wire transfer of immediately available funds to the accounts
specified by them or by mailing checks to their registered addresses as they
appear in the Note register (as defined in the Indenture), in the case of the
Notes, and in the register of the Company for the Common Stock, in the case of
shares of Common Stock, if no such accounts have been specified on or before the
Damages Payment Date; provided, however, that any Liquidated Damages accrued
with respect to any Note or portion thereof called for redemption on a
redemption date, repurchased in connection with a Repurchase Event (as defined
in the Indenture) on a repurchase date, or converted into shares of Common Stock
on a conversion date prior to the Damages Payment Date, shall, in any such
event, be paid instead to the Holder who submitted such Note or portion thereof
for redemption, repurchase or conversion on the applicable redemption date,
repurchase date or conversion date, as the case may be, on such date (promptly
following the conversion date, in the case of conversion of a Note). In no event
shall the Company be required to pay Liquidated Damages in excess of the
applicable maximum weekly amount set forth above, regardless of whether one or
multiple Registration Defaults shall exist.
(c) All of the Company's obligations set forth in this Section
3 which are unsatisfied to any extent with respect to any Transfer Restricted
Securities at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
security have been satisfied in full (notwithstanding the earlier termination of
this Agreement).
(d) Any payments due and payable pursuant to this Section 3
with respect to any Notes shall be subject to the provisions of Article IV of
the Indenture as if such payments were additional interest on the Notes.
4. REgistration Procedures . In connection with the Company's
registration obligations hereunder, the Company shall effect such registrations
on the appropriate form selected by the Company to permit the resale of Transfer
Restricted Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall:
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(a) No fewer than five Business Days prior to the initial
filing of a Registration Statement or Prospectus and no fewer than two Business
Days prior to the filing of any amendment or supplement thereto (excluding,
unless requested, any document that would be incorporated or deemed to be
incorporated therein by reference), furnish to the registered (as of the most
recent reasonably practicable date which shall not be more than two Business
Days prior to the date such document is personally delivered, delivered to a
next-day courier, deposited in the mail or telecopied, as the case may be)
Holders, Special Counsel and the managing underwriters, if any, copies of all
such documents proposed to be filed (excluding, unless requested, those
incorporated or deemed to be incorporated by reference) and cause the officers
and directors of the Company, counsel to the Company and independent certified
public accountants to the Company to respond to such inquiries as shall be
necessary in connection with such Registration Statement, in the opinion of
Special Counsel and counsel to such underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act; provided, that the
Company shall be under no obligation to furnish copies of any supplement to the
Registration Statement or Prospectus containing the information specified in
Item 507 of Regulation S-K relating solely to the sale by a single Holder other
than the Holder named therein. The Company shall not file any such Registration
Statement or related Prospectus or any amendments or supplements thereto to
which the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities, Special Counsel, or the managing underwriters, if any,
shall reasonably object no more than two Business Days following the delivery
thereof; provided, that the Company may assume, for the purposes of this
subparagraph (a), that objections to the inclusion of information (i)
specifically requested to be included in the Registration Statement by the staff
of the SEC, (ii) specifically referenced in a written opinion by counsel to the
Company that inclusion of such information is required or (iii) specifically
required by the Securities Act or other applicable law, shall not be deemed to
be reasonable.
(b) As expeditiously as reasonably possible, prepare and file
with the SEC such amendments, including post-effective amendments, to each
Registration Statement as may be necessary to keep such Registration Statement
continuously effective for the applicable time period set forth in Section 2(a)
hereof; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act and the Exchange Act with respect to the disposition of
all securities covered by such Registration Statement during such period in
accordance with the intended method or methods of disposition by the Holder set
forth in such Registration Statement as so amended or in such Prospectus as so
supplemented (including, without limitation, the filing of any Prospectus
supplement pursuant to Rule 424 in order to add or change any selling security
holder information (including any such supplements or amendments pursuant to
Section 2(c) hereof, provided such Holder to which such change applies complies
with the Requisite Information requirements of Section 2(c) hereof));
(c) Notify the registered (as of the most recent reasonably
practicable date which shall not be more than two Business Days prior to the
date such notice is personally delivered, delivered to a next-day courier,
deposited in the mail or telecopied, as the case may be) Holders, Special
Counsel and the managing underwriters, if any, promptly (and in the case of an
event
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specified by clause (i)(A) of this paragraph in no event fewer than two Business
Days prior to such filing), and (if requested by any such person), confirm such
notice in writing, (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to a Registration Statement is proposed to be filed
(other than any Prospectus or Prospectus Supplement containing the information
specified in Item 507 of Regulation S-K relating solely to the sale by a single
Holder other than the Holder named therein), and, (B) with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request of the SEC or any other federal or state
governmental authority for amendments or supplements to such Registration
Statement or related Prospectus or for additional information related thereto,
(iii) of the issuance by the SEC, any state securities commission, any other
governmental agency or any court of any stop order, order or injunction
suspending or enjoining the use or the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, (iv) if at any
time any of the representations and warranties of the Company contained in any
agreement (including any underwriting agreement) contemplated by Section 4(m)
hereof are not true and correct in all material respects, (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Transfer Restricted
Securities for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (vi) of the existence of any fact and the
happening of any event that makes any statement made in such Registration
Statement or related Prospectus untrue in any material respect, or that requires
the making of any changes in such Registration Statement or Prospectus so that
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
that, in the case of the Prospectus, such Prospectus will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) Use all commercially reasonable efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of any stop order or order
enjoining or suspending the use or effectiveness of a Registration Statement or
the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Transfer Restricted Securities for sale in any
jurisdiction, at the earliest practicable moment;
(e) If requested by the Special Counsel, the managing
underwriters, if any, or the Holders of a majority in aggregate principal amount
of the Transfer Restricted Securities being sold in connection with such
offering, (i) promptly include in a Prospectus supplement or post-effective
amendment such information as the Special Counsel, the managing underwriters, if
any, and such Holders reasonably request to be included therein, and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as reasonably practicable after the Company has received
notification of the matters to be included in such Prospectus supplement or
post-effective amendment; provided, however, that the Company shall not be
required to take any action pursuant to this Section 4(e) that would, in the
opinion of counsel for the Company, violate applicable law;
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(f) As expeditiously as reasonably possible, furnish to each
Holder who so requests, Special Counsel and each managing underwriter, if any,
without charge, at least one conformed copy of each Registration Statement and
each amendment thereto, including financial statements (but excluding schedules,
all documents incorporated or deemed to be incorporated therein by reference and
all exhibits, unless requested in writing by such Holder, Special Counsel or
managing underwriter);
(g) As expeditiously as reasonably possible, deliver to each
Holder, the Special Counsel, and the underwriters, if any, without charge, as
many copies of the Prospectus or Prospectuses (including each form of
Prospectus) and each amendment or supplement thereto as such persons may
reasonably request; and, unless the Company shall have given notice to such
Holder pursuant to Section 2(d), the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders of Transfer Restricted Securities and the underwriters, if any, in
connection with the offering and sale of the Transfer Restricted Securities
covered by such Prospectus and any amendment or supplement thereto, provided,
however, that no Holder shall be entitled to use the Prospectus unless and until
such Holder shall have furnished to the Company any and all Requisite
Information pursuant to Section 2(c) hereof;
(h) Use all commercially reasonable efforts to register or
qualify, or cooperate with the Holders of Transfer Restricted Securities to be
sold, the underwriters, if any, and their respective counsel in connection with
the registration or qualification (or exemption from such registration or
qualification) of, such Transfer Restricted Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions within the United States
as any Holder or underwriter reasonably requests in writing, keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things necessary legally to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the applicable
Registration Statement; provided, however, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it is not
then so qualified, take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or subject the
Company to any tax in any such jurisdiction where it is not then so subject;
(i) In connection with any sale or transfer of Transfer
Restricted Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the Holders and the managing
underwriters, if any, to (A) facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends, shall bear a CUSIP number
different from the CUSIP number for the Transfer Restricted Securities and shall
be in a form eligible for deposit with The Depository Trust Company and (B)
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or Holders may
reasonably request at least two Business Days prior to any sale of Transfer
Restricted Securities;
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(j) Use all commercially reasonable efforts to cause the
offering of the Transfer Restricted Securities covered by the Registration
Statement to be registered with or approved by such other governmental agencies
or authorities within the United States, except as may be required as a
consequence of the nature of a Holder's business, in which case the Company will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals as may be reasonably necessary to
enable the seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Transfer Restricted Securities; provided, however, that
the Company shall not be required to register the Transfer Restricted Securities
in any jurisdiction that would require the Company to qualify to do business in
any jurisdiction where it is not then so qualified, subject it to general
service of process in any such jurisdiction where it is not then so subject or
subject the Company to any tax in any such jurisdiction where it is not then so
subject or to;
(k) Upon the occurrence of any event contemplated by Section
4(c)(vi) hereof, as promptly as reasonably practicable, prepare a supplement or
amendment, including, if appropriate, a post-effective amendment, to each
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any
other required document so that, as thereafter delivered, such Prospectus will
not contain 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,
provided that, the Company may delay the filing and delivery of such supplement
or amendment if, and only for so long as, (i) such supplement or amendment would
require the Company to disclose material non-public information, (ii) the Board
of Directors of the Company determines in good faith that such disclosure is
adverse to the reasonable interests of the Company and its shareholders, and
(iii) the Company complies with its obligations, if any, to pay Liquidated
Damages;
(l) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, to provide a CUSIP
number for the Transfer Restricted Securities to be sold pursuant to the
Registration Statement;
(m) Enter into such agreements (including any underwriting
agreements in form, scope and substance as are customary in underwritten
offerings) reasonably satisfactory to the Company and take all such other
reasonable actions in connection therewith (including those reasonably requested
by the managing underwriters, if any, or the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities being sold) in order to
expedite or facilitate the sale of such Transfer Restricted Securities;
provided, however, that the Company is not required to facilitate an
underwritten public offering unless a request therefor shall have been made by
the holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold and, in any event, the Company is not required
to effect more than two underwritten offerings. In such connection, whether or
not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, the Company shall (i) make such
representations and warranties to the Holders of such Transfer Restricted
Securities and the underwriters, if any, with
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respect to the business of the Company and its subsidiaries (including with
respect to businesses or assets acquired or to be acquired by any of them), and
the Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii) seek to obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and Special Counsel to the Holders of the
Transfer Restricted Securities being sold), addressed to each selling Holder of
Transfer Restricted Securities and each of the underwriters, if any, covering
the matters customarily covered in opinions requested in underwritten offerings
(including any such matters as may be reasonably requested by such Special
Counsel and underwriters); (iii) use all reasonable efforts to obtain customary
"cold comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data is, or is
required to be, included in the Registration Statement), addressed (where
reasonably possible) to each selling Holder of Transfer Restricted Securities
and each of the underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings; (iv) if an underwriting agreement is
entered into, provide that the underwriting agreement shall contain
indemnification provisions and procedures no less favorable to the selling
Holders of Transfer Restricted Securities and the underwriters, if any, than
those set forth in Section 6 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities covered by such Registration Statement and the
managing underwriters); and (v) deliver such documents and certificates as may
be reasonably requested by the Holders of majority in aggregate principal amount
of the Transfer Restricted Securities being sold, their Special Counsel or the
managing underwriters, if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) of this Section 4(m)
and to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company;
(n) Make available for inspection by a representative of the
Holders of Transfer Restricted Securities being sold, any underwriter
participating in any such disposition of Transfer Restricted Securities, if any,
and any attorney, consultant or accountant retained by such selling Holders or
underwriter, at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries as they may reasonably request,
and cause the officers, directors, agents and employees of the Company and its
subsidiaries to supply all information in each case reasonably requested by any
such representative, underwriter, attorney, consultant or accountant in
connection with such Registration Statement, provided, however, that such
persons shall first agree in writing with the Company that any information that
is reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery or inspection (as the case may be) of such
information shall be kept confidential by such persons, unless (i) disclosure of
such information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities,
-13-
(ii) disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the filing
of any Registration Statement or the use of any Prospectus), (iii) such
information becomes generally available to the public other than as a result of
a disclosure or failure to safeguard by any such person or (iv) such information
becomes available to any such person from a source other than the Company and
such source is not bound by a confidentiality agreement.
(o) Cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement relating to
the Transfer Restricted Securities; and in connection therewith, cooperate with
the Trustee and the Holders of Notes constituting Transfer Restricted Securities
to effect such changes to the Indenture, if any, as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA; and
execute, and use its best efforts to cause the Trustee to execute, all customary
documents as may be required to effect such changes, and all other forms and
documents (including Form T-1) required to be filed with the SEC to enable the
Indenture to be so qualified under the TIA in a timely manner.
(p) Comply with applicable rules and regulations of the SEC
and make generally available to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act or Rule 158 (or
any similar rule promulgated under the Securities Act), no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter after the effective date of a Registration Statement, which
statement shall cover said period, consistent with the requirements of Rule 158;
and
(q) (i) List all shares of Common Stock covered by such
Registration Statement on any securities exchange on which the Common Stock is
then listed or (ii) authorize for quotation on the National Association of
Securities Dealers Automated Quotation System ("Nasdaq") or the Nasdaq National
Market or the American Stock Exchange all Common Stock covered by such
Registration Statement if the Common Stock is then so authorized for quotation.
5. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by it whether or
not any Registration Statement is filed or becomes effective and whether or not
any securities are offered or sold pursuant to any Registration Statement. The
fees and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filings fees (including, without
limitation, fees and expenses (A) with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and (B) in compliance
with securities or Blue Sky laws (including, without limitation and in addition
to that provided for in (b) below, fees and disbursements of counsel for the
underwriters or the Special Counsel in connection with Blue Sky qualifications
of the Transfer
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Restricted Securities and determination of the eligibility of the Transfer
Restricted Securities for investment under the laws of such jurisdictions as the
managing underwriters, if any, or Holders of a majority in aggregate principal
amount of Transfer Restricted Securities, may designate)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Transfer Restricted Securities in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is required by the managing underwriters, if any, or by the Holders
of a majority in aggregate principal amount of the Transfer Restricted
Securities included), (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of counsel for the Company and the Special Counsel (plus
any local counsel deemed appropriate by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities) in accordance with the
provisions of Section 5(b) hereof, (v) fees and disbursements of all independent
certified public accountants referred to in Section 4(m)(iii) (including,
without limitation, the expenses of any special audit and "comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Company so desires such insurance, and (vii) fees and expenses
of all other persons retained by the Company. In addition, the Company shall pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of an annual audit and the fees and expenses incurred in connection with
the listing of the securities to be registered on any securities exchange or the
authorizing for quotation on the Nasdaq or the Nasdaq National Market or the
American Stock Exchange. Notwithstanding anything in this Agreement to the
contrary, each Holder shall pay all underwriting discounts and brokerage
commissions with respect to any Transfer Restricted Securities sold by it.
(b) In connection with any registration hereunder, the Company
shall reimburse the Holders of the Transfer Restricted Securities being
registered or tendered for in such registration for the reasonable fees and
disbursements of not more than one firm of attorneys representing the selling
Holders (in addition to any local counsel), which firm shall be chosen by the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities. Shearman & Sterling shall be Special Counsel for all purposes hereof
unless and until another Special Counsel shall have been selected by a majority
in aggregate principal amount of the Transfer Restricted Securities and notice
hereof shall have been given to the Company.
6. Indemnification
(a) The Company agrees to indemnify and hold harmless (i) each
of the Purchasers, (ii) each Holder, (iii) each person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any of the foregoing (any of the persons referred to in this
clause (iii) being hereinafter referred to as a "controlling person"), and (iv)
the respective officers, directors, partners, employees, representatives and
agents of the Purchasers, the Holders (including predecessor Holders), or any
controlling person (any person referred to in clause (i), (ii), (iii) or (iv)
may hereinafter be referred to as an "Indemnified Person"), from and against any
and all losses, claims, damages, liabilities, expenses and judgments caused by
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus or in any amendment or supplement
thereto or in any preliminary Prospectus, or caused
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by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case of
any Prospectus or supplement thereto or any preliminary Prospectus, in light of
the circumstances under which they were made) not misleading, except insofar as
such losses, claims, damages, liabilities, expenses or judgments are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Indemnified Person furnished to the
Company by or on behalf of such Indemnified Person expressly for use therein;
provided, however, that the foregoing indemnity with respect to any preliminary
Prospectus shall not inure to the benefit of any Indemnified Person from whom
the person asserting such losses, claims, damages, liabilities, expenses and
judgments purchased securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary Prospectus is eliminated
or remedied in the Prospectus and a copy of the Prospectus shall not have been
furnished to such person in a timely manner due to the wrongful action or
wrongful inaction of such Indemnified Person, whether as a result of negligence
or otherwise.
(b) In case any action shall be brought against any
Indemnified Person, based upon any Registration Statement or any such Prospectus
or any amendment or supplement thereto and with respect to which indemnity may
be sought against the Company, such Indemnified Person shall promptly notify the
Company in writing and the Company shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Person and
payment of all reasonable fees and expenses. Any Indemnified Person shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person, unless (i) the employment of such counsel
shall have been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel or (iii) such
Indemnified Person or Persons shall have been advised by counsel that there may
be a conflict between the positions of the indemnifying party or parties and of
the indemnified party or parties in conducting the defense of such action or
proceeding or that there may be legal defenses available to such Indemnified
Person or Persons different from or in addition to those available to the
indemnifying party or parties (in which case the Company shall not have the
right to assume the defense of such action on behalf of such Indemnified Person,
it being understood, however, that the Company shall not, in connection with any
one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all such Indemnified Persons, which firm
shall be designated in writing by such Indemnified Persons, and that all such
fees and expenses shall be reimbursed as they are incurred). The Company shall
not be liable for any settlement of any such action effected without its written
consent but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Indemnified Person from and against
any loss or liability by reason of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
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(c) In connection with any Registration Statement pursuant to
which any Holder (or predecessor Holder) sold or offered for resale Transfer
Restricted Securities, such Holder (or predecessor Holder) agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors, its
officers and any person controlling the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Indemnified Person but only
with reference to information relating to such Indemnified Person furnished by
or on behalf of such Indemnified Person expressly for use in such Registration
Statement. In case any action shall be brought against the Company, any of its
directors, any such officer or any person controlling the Company based on such
Registration Statement and in respect of which indemnity may be sought against
any Indemnified Person, the Indemnified Person shall have the rights and duties
given to the Company (except that if the Company shall have assumed the defense
thereof, such Indemnified Person shall not be required to do so, but may employ
separate counsel therein and participate in defense thereof but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person),
and the Company, its directors, any such officers and any person controlling the
Company shall have the rights and duties given to the Indemnified Person by
Section 6(b) hereof.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities, expenses or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities, expenses and judgments (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and each Indemnified Person on the other hand pursuant to the Purchase
Agreement or from the offering for resale of the Transfer Restricted Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and each such Indemnified Person in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities,
expenses or judgments, as well as any other relevant equitable considerations.
The relative fault of the Company and each such Indemnified Person shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company or such Indemnified Person and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Holders and the Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 6(d)
were determined by pro rata allocation (even if the Indemnified Person were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities, expenses or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or
-17-
defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Indemnified Person shall be required to contribute any amount in
excess of the amount by which the total net profit received by it in connection
with the sale of the Transfer Restricted Securities pursuant to this Agreement
exceeds the amount of any damages which such Indemnified Person has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
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. The Indemnified Persons' obligations to contribute pursuant
to this Section 6(d) are several in proportion to the respective amount of
Transfer Restricted Securities included in and sold pursuant to any such
Registration Statement by each Indemnified Person and not joint.
7. Rules 144 and 144A
The Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act in a timely manner and, if at any
time it is not required to file such reports but in the past had been required
to or did file such reports, it will, upon the request of any Holder, make
available other information as required by, and so long as necessary to permit
sales of its Transfer Restricted Securities pursuant to, Rule 144 and Rule 144A.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
8. Underwritten Registrations
If any of the Transfer Restricted Securities covered by any
Shelf Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be investment bankers of recognized national
standing selected by the Holders of a majority in aggregate principal amount of
such Transfer Restricted Securities included in such offering, subject to the
consent of the Company (which may not be unreasonably withheld or delayed).
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities underwriting agreements, lock-up agreements and other
documents reasonably required under the terms of such underwriting arrangements.
9. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by a
Holder of any of their respective obligations under this Agreement, each Holder
or the Company, in addition to being entitled to exercise all rights granted by
law, including, without limitation, recovery of damages, will
-18-
be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, they shall waive the
defense that a remedy at law would be adequate. This Section 9(a) shall not
apply to any breach for which Liquidated Damages have been specifically provided
hereunder.
(b) No Inconsistent Agreements.
(i) The Company shall not enter into any agreement
with respect to its securities that is inconsistent with the rights specifically
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Without limiting the generality of the foregoing, without the
written consent of the Holders of a majority in aggregate principal amount of
the Transfer Restricted Securities, the Company shall not hereafter grant to any
person the right to include any securities held by such person in any
Registration Statement filed pursuant to this Agreement.
(ii) The Company is not currently a party to any
agreement granting any registration rights with respect to any of its securities
to any person which conflicts with the Company's obligations hereunder, except
for such rights and conflicts (A) as have been irrevocably waived, (B) that
subject the Transfer Restricted Securities to be sold in an underwritten
offering to be cutback prior to the securities included in such offering by
security holders exercising piggyback registration rights with respect to such
offering as specifically described in the Offering Circular dated August 13,
1997 with respect to the Notes (the "Offering Circular") and (C) that could
delay the time period with respect to amendments or supplements as contemplated
in this Agreement as specifically described in the Offering Circular.
(iii) Notwithstanding any term of this Agreement to
the contrary, the Company shall use its best efforts to obtain waivers from
holders of registration rights with respect to the Company's securities
("Existing Registration Rights Holders") of any rights to include any of their
shares of Common Stock ("Piggyback Shares") in any Registration Statement filed
pursuant to this Agreement and any other rights they otherwise would have with
respect to actions required to be taken by the Company under this Agreement.
Without limiting the foregoing, the Company shall, to the extent reqoraneously
with the Shelf Registration Statement required pursuant to Section 2(a) of this
Agreement, a shelf registration statement with respect to the Existing
Registration Rights Holders' Piggyback Shares with substantially the same terms
that such Existing Registration Rights Holders would otherwise have with respect
to any Shelf Registration Statement. In addition, the Company shall use its best
efforts to eliminate or minimize any adverse effects on the rights of the
Holders under this Agreement as a result of the Company's registration rights
agreements with the Existing Registration Rights Holders.
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(iv) The Purchasers agree that the second paragraph
of Section 2(c) of this Agreement shall not require the Company to breach the
third-party obligation referenced in Section 9(b)(ii)(C) above if such
third-party obligation is not waived. The Company acknowledges that neither the
agreement set forth in the preceding sentence, the disclosure set forth in
Section 9(b)(ii) above nor the covenants of the Company set forth in Section
9(b)(iii) above shall relieve the Company of its obligation to pay Liquidated
Damages pursuant to and in accordance with Section 3 of this Agreement. Without
limiting the foregoing, with respect to amendments or supplements to a Shelf
Registration Statement, such Shelf Registration Statement shall "cease to be
usable" within the meaning of Section 3(a)(iii) of this Agreement for such
period which exceeds the applicable time period for filing and delivering
amendments or supplements, as the case may be, as required under this Agreement.
(c) No Adverse Action Affecting the Transfer Restricted
Securities. The Company will not take any action with respect to the Transfer
Restricted Securities which would adversely affect the ability of any of the
Holders to include such Transfer Restricted Securities in a registration
undertaken pursuant to this Agreement.
(d) No Piggyback on Registrations. After the date hereof, the
Company shall not grant to any of its security holders (other than the Holders
in such capacity) the right to include any of its securities in any Shelf
Registration Statement.
(e) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof,
may not be given, without the written consent of the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities; provided,
however, that, for the purposes of this Agreement, Transfer Restricted
Securities that are owned, directly or indirectly, by either the Company or an
Affiliate of the Company are not deemed outstanding. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders whose Transfer
Restricted Securities are being sold pursuant to an underwritten offering and
that does not directly or indirectly affect the rights of other Holders may be
given by Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold by such Holders pursuant to such an
underwritten offering; provided, however, that the provisions of this sentence
may not be amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(f) Notices. All notices and other communications provided for
herein shall be made in writing by hand-delivery, next day air courier,
certified first-class mail, return receipt requested or telecopy:
(i) if to a Holder, to the address of such Holder as
it appears in the Note or Common Stock register
of the Company, as applicable;
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(ii) if to the Company, to:
CareMatrix Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn.: Xxxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
(iii) if to the Special Counsel, to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
or such other Special Counsel at such other
address and telecopy number as a majority in
aggregate principal amount of the Transfer
Restricted Securities shall have given
notice to the Company as contemplated by
Section 5(b) hereof.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given, when delivered by hand,
if personally delivered; one Business Day after being timely delivered to a
next-day air courier, five Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each existing and future Holder.
The Company may not assign its rights or obligations hereunder without the prior
written consent of the Holders of a majority in aggregate principal amount of
the Transfer Restricted Securities, other than by operation of law pursuant to a
merger or consolidation to which the Company is a party. In the event the Notes
constituting Transfer Restricted Securities become convertible into common stock
of another person pursuant to Section 15.6 of the Indenture, the Company shall
cause such person to assume the Company's obligations hereunder.
-21-
(h) Counterparts. This Agreement may be executed in any number
of counterparts by the parties hereto, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(j) Severability. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(k) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
(l) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover its reasonable attorneys' fees in addition to any
other available remedy.
-22-
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
CAREMATRIX CORPORATION
By:______________________________
Name:
Title:
The foregoing Registration Rights
Agreement is hereby confirmed and
agreed to as of the date first
written above:
XXXXXXXXX, XXXXXXXX & COMPANY LLC
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
SALOMON BROTHERS INC
XXXXX XXXXXX INC.
By: XXXXXXXXX, XXXXXXXX & COMPANY LLC
By: XXXXXXXXX, XXXXXXXX & COMPANY GROUP, L.L.C.
By:___________________________
Authorized Signatory
Acting on behalf of itself and the other
Purchasers
