EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and entered
into as of April 27, 1998 among Vencor Operating, Inc., a Delaware corporation
(the "COMPANY"), Vencor, Inc., a Delaware corporation (the "GUARANTOR"), and
X.X. Xxxxxx Securities Inc. and Xxxxxxx, Sachs & Co. (the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated April 27,
1998, among the Company, the Guarantor and the Initial Purchasers (the "PURCHASE
AGREEMENT"), which provides for the sale by the Company to the Initial
Purchasers of $300,000,000 aggregate principal amount of its 9 7/8% Guaranteed
Senior Subordinated Notes due 2005 (the "SECURITIES"). The Securities will be
unconditionally and irrevocably guaranteed (the "GUARANTEE") as to payment of
principal, premium, if any, and interest by the Guarantor. The Securities will
be issued pursuant to the provisions of an Indenture to be dated as of April 30,
1998 (as amended, supplemented or otherwise modified from time to time, the
"INDENTURE") among the Company, the Guarantor and PNC Bank, National Association
as trustee (the "TRUSTEE").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, each of the Company and the Guarantor has agreed to provide to the
Initial Purchasers and their direct and indirect transferees the registration
rights with respect to the Securities set forth in this Agreement. The execution
of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
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As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time to
time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"EXCHANGE DATE" shall have the meaning set forth in Section 2.
"EXCHANGE OFFER" shall mean the exchange offer by the Company and the
Guarantor of Exchange Securities for all Securities that are Registrable
Securities pursuant to Section 2 hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the 1933 Act
effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on an appropriate form and all amendments and supplements
to such registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"EXCHANGE SECURITIES" shall mean any securities (including the related
guarantee) of the Company issued under the Indenture and containing terms
identical to the Securities (except that (i) interest thereon shall accrue from
the last date on which interest was paid on the Securities or, if no such
interest has been paid, from April 27, 1998 and (ii) the Exchange Securities
will not provide for additional interest accruing thereon following a failure to
register such Exchange Securities under the 1933 Act and will not contain terms
with respect to transfer restrictions) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.
"GUARANTOR" shall have the meaning set forth in the preamble and shall also
include the Guarantor's successors.
"HOLDERS" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture; provided that for purposes of Sections 4 and 5
of this Agreement, the term "HOLDERS" shall include Participating Broker-
Dealers.
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"INDENTURE" shall have the meaning set forth in the preamble.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; provided that, for
purposes of Section 6, whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company, the Guarantor or any of their
respective affiliates (as such term is defined in Rule 405 under the 0000 Xxx)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage or amount.
"OFFER TERMINATION DATE" shall have the meaning set forth in Section 2
hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in Section 4
hereof.
"PERSON" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated by reference therein.
"REGISTRABLE SECURITIES" shall mean the Securities; provided, however, that
the Securities shall cease to be Registrable Securities when (i) a Registration
Statement with respect to such Securities shall have been declared effective
under the 1933 Act and such Securities shall have been disposed of pursuant to
such Registration Statement, (ii) such Securities have been sold pursuant to
Rule 144(k) (or any similar provision then in force, but not Rule 144A) under
the 1933 Act, (iii) such Securities shall have ceased to be outstanding or (iv)
such Securities have been exchanged for Exchange Securities upon consummation of
the Exchange Offer.
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"REGISTRATION EXPENSES" shall mean any and all expense incident to
performance of or compliance by the Company and the Guarantor with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws, (iii) all expenses of any Person in preparing or assisting in
preparing, word processing, printing and distributing, at the request of the
Company and the Guarantor, any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (v) the fees
and disbursements of the Trustee and its counsel, (vi) the fees and
disbursements of counsel for the Company and the Guarantor and for the Initial
Purchasers and, in the case of a Shelf Registration Statement, the fees and
disbursements of one counsel for the Holders incurred on or before the initial
effectiveness of the Shelf Registration Statement, which counsel shall be
counsel for the Initial Purchasers or other counsel selected by the Majority
Holders and satisfactory to the Company and the Guarantor ("counsel for the
Holders"), (vii) the fees and disbursements of the independent public
accountants of the Company and the Guarantor, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding underwriting discounts, if any, and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by the Holders and (viii) the fees and expenses of
listing the Registrable Securities on any securities exchange or quotation
system in accordance with Section 3 hereof.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company and the Guarantor that covers any of the Exchange Securities or the
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including post-
effective amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SHELF REGISTRATION" shall mean a registration effected pursuant to Section
2 hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration statement
of the Company and the Guarantor pursuant to the provisions of Section 2 of this
Agreement which covers all of the Registrable Securities (except Registrable
Securities that the Holders have elected not to include in such Shelf
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Registration Statement) or Securities that represent an unsold allotment for the
original offering thereof on an appropriate form under Rule 415 under the 1933
Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3 hereof.
"TRUSTEE" shall have the meaning set forth in the preamble.
"UNDERWRITERS" shall have the meaning set forth in Section 3 hereof.
"UNDERWRITTEN OFFERING" shall mean a registration in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration under the 1933 Act.
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(a) To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, each of the Company and
the Guarantor shall use its best efforts to cause to be filed an Exchange
Offer Registration Statement covering the offer by the Company and the
Guarantor to the Holders to exchange all of the Registrable Securities for
Exchange Securities on or prior to the date that is 60 days after the
Closing Date, to have such Registration Statement declared effective by the
SEC on or prior to the date that is 120 days after the Closing Date and
remain effective until the closing of the Exchange Offer and to consummate
the Exchange Offer on or prior to the date that is 150 days after the
Closing Date. For purposes hereof, "CONSUMMATE" shall mean that the
Exchange Offer Registration Statement shall have been declared effective,
subject to Section 2, the period of the Exchange Offer provided in
accordance with clause 2 below shall have expired and all Registrable
Securities validly tendered in connection with such Exchange Offer shall
have been exchanged for Exchange Securities. The Company and the Guarantor
shall commence the Exchange Offer by mailing the related exchange offer
Prospectus and accompanying documents to each Holder stating, in addition
to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities
validly tendered will be accepted for exchange;
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(ii) the dates of acceptance for exchange (which shall be a
period of at least 30 days from the date such notice is mailed) (each
such date being an "EXCHANGE DATE");
(iii) that any Registrable Note not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Agreement, other than Securities that represent an
unsold allotment for the original offering thereof;
(iv) that Holders electing to have a Registrable Note exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Note, together with the enclosed letters of transmittal,
to the institution and at the address specified in the notice prior to
the close of business on the last Exchange Date (the "OFFER
TERMINATION DATE"); and
(v) that Holders will be entitled to withdraw their election,
not later than the close of business on the Offer Termination Date, by
sending to the institution and at the address specified in the notice
a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is withdrawing
his election to have such Registrable Securities exchanged.
As soon as practicable after the Offer Termination Date, the Company and
the Guarantor shall:
(A) accept for exchange Registrable Securities or portions
thereof tendered and not validly withdrawn pursuant to the
Exchange Offer; and
(B) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so
accepted for exchange by the Company and the Guarantor and issue,
and cause the Trustee to promptly authenticate and mail to each
Holder, an Exchange Note equal in aggregate principal amount to
the aggregate principal amount of the Registrable Securities
surrendered by such Holder.
Each of the Company and the Guarantor shall use its best efforts to
complete the Exchange Offer as provided above and shall comply with the
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applicable requirements of the 1933 Act, the 1934 Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the Staff of the SEC.
(b) In the event that (i) the Company or the Guarantor determines
that the Exchange Offer Registration provided for in Section 2 above is not
available or may not be consummated as soon as practicable after the Offer
Termination Date because it would violate applicable law or the applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for
any other reason consummated within 150 days after the Closing Date or
(iii) in the opinion of counsel for the Initial Purchasers a Registration
Statement must be filed and a Prospectus must be delivered by the Initial
Purchasers in connection with any offering or sale of Registrable
Securities because such Registrable Securities represent an unsold
allotment for the original offering thereof, each of the Company and the
Guarantor shall use its best efforts to cause to be filed as soon as
practicable after such determination, date or notice of such opinion of
counsel is given to the Company or the Guarantor, as the case may be, a
Shelf Registration Statement providing for the sale of such Registrable
Securities and to have such Shelf Registration Statement declared effective
by the SEC. In the event the Company and the Guarantor are required to file
a Shelf Registration Statement solely as a result of the matters referred
to in clause (iii) of the preceding sentence, the Company and the Guarantor
shall file and have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2 with respect to all
Registrable Securities and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer Registration
Statement) with respect to offers and sales of Registrable Securities held
by the Initial Purchasers after completion of the Exchange Offer. Each of
the Company and the Guarantor agrees to use its best efforts to keep the
Shelf Registration Statement continuously effective until 180 days from the
effective date thereof or such shorter period that will terminate when all
of the Registrable Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement. Each of the
Company and the Guarantor further agrees to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company and
the Guarantor for such Shelf Registration Statement or by the 1933 Act or
by any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder with respect to information relating to
such Holder, and to use its best efforts to cause any such amendment to
become effective and such
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Shelf Registration Statement to become usable as soon as practicable
thereafter. The Company and the Guarantor agree to furnish to the Holders
of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) The Company and the Guarantor shall pay all Registration Expenses
in connection with the registration pursuant to Section 2 or Section 2.
Each Holder shall pay all underwriting discounts, if any, and commissions
and transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2
hereof or a Shelf Registration Statement pursuant to Section 2 hereof will
not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that, if, after it has been
declared effective, the offering of Registrable Securities pursuant to a
Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed
not to be effective during the period of such interference until the
offering of Registrable Securities pursuant to such Registration Statement
may legally resume.
(e) In the event that (i) the Exchange Offer Registration Statement
relating to the Exchange Offer is not filed with the Commission on or prior
to the date that is 60 days after the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the date
that is 120 days after the Closing Date, or (iii) the Exchange Offer is not
consummated or a Shelf Registration Statement with respect to resale of the
Securities is not declared effective on or prior to the date that is 150
days after the Closing Date (each such event referred to in clauses (i)
through (iii), a "REGISTRATION DEFAULT"), then the Company will pay
additional interest (in addition to the interest otherwise due on the
Securities) to each Holder of Securities during the first 90-day period
immediately following the occurrence of each such Registration Default in
an amount equal to 0.25% per annum. The amount of interest will increase by
an additional 0.25% per annum for each subsequent 90-day period until such
Registration Default is cured, up to a maximum amount of additional
interest of 1.00% per annum. Such additional interest will cease accruing
on such Securities with respect to any Registration Default when such
Registration Default has been cured.
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(f) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company and the Guarantor acknowledge that any failure
by the Company or the Guarantor to comply with their respective obligations
under Section 2 and Section 2 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damage for
such injuries precisely and that, in the event of any such failure, the
Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's and the Guarantor's obligations under
Section 2 and Section 2 hereof.
3. Registration Procedures.
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In connection with the obligations of the Company and the Guarantor with
respect to the Registration Statements pursuant to Section 2 and Section 2
hereof, each of the Company and the Guarantor shall reasonably promptly:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form shall (x) be selected by
the Company and the Guarantor, (y) in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling Holders
thereof and (z) comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith, and use its best efforts to
cause such Registration Statement to become effective and remain effective
in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and, as
so supplemented, to be filed pursuant to Rule 424 under the 1933 Act; and
keep each Prospectus current during the period described under Section 4(3)
and Rule 174 under the 1933 Act that is applicable to transactions by
brokers or dealers with respect to the Registrable Securities or Exchange
Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Holders and for the Initial
Purchasers (or, if applicable, separate counsel for the Holders) and to
each Underwriter of an Underwritten Offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus and any amendment or supplement thereto and
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such other documents as such Holder or Underwriter may reasonably request,
in order to facilitate the public sale or other disposition of the
Registrable Securities; and each of the Company and the Guarantor consents
to the use of such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto
in accordance with applicable law;
(d) use its best efforts (i) to register or qualify the Registrable
Securities under all applicable state securities or blue sky laws of such
jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC and (ii)
to cooperate with such Holders in connection with any filings required to
be made with the National Association of Securities Dealers, Inc. and do
any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that neither the Company nor the Guarantor shall be required to
(A) register or qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
register or qualify but for this Section, (B) file any general consent to
service of process or (C) subject itself to taxation in any such
jurisdiction if they are not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and for the Initial
Purchasers (or, if applicable, separate counsel for the Holders) and, if
requested by such Persons, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendment thereto has been filed and becomes effective, (ii) of any request
by the SEC or any state securities authority for amendments and supplements
to a Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective date of
a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company or the Guarantor contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to
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the offering cease to be true and correct in all material respects or if
the Company or the Guarantor receives any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation of any proceeding for such purpose, (v)
of the happening of any event during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading and (vi)
of any determination by the Company or the Guarantor that a post-effective
amendment to a Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide prompt notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends (unless required by applicable
securities laws) and enable such Registrable Securities to be in such
denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders may reasonably request at
least two business days prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3 hereof, use its best efforts to prepare a
supplement or post-effective amendment to a Registration Statement or the
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Each of the Company and the
Guarantor agree to notify the Holders to suspend use of
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the Prospectus as promptly as practicable after the occurrence of such an
event, and the Holders hereby agree to suspend use of the Prospectus until
the Company and the Guarantor have amended or supplemented the Prospectus
to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus, or any document which is to be
incorporated by reference into a Registration Statement or Prospectus after
the initial filing of a Registration Statement, provide copies of such
document to the Initial Purchasers and their counsel (and, in the case of a
Shelf Registration Statement, counsel for the Holders) and make such of the
representatives of each of the Company and the Guarantor as shall be
reasonably requested by the Initial Purchasers or its counsel (and, in the
case of a Shelf Registration Statement, counsel for the Holders) available
for discussion of such document, and shall not at any time file or make any
amendment to the Registration Statement, any Prospectus or any amendment of
or supplement to a Registration Statement or a Prospectus or any document
which is to be incorporated by reference into a Registration Statement or a
Prospectus, of which the Initial Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, counsel for the Holders) shall not
have previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, counsel for the Holders) shall reasonably object;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Securities or Registrable Securities, as the case may be, and
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the 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 documents as may be required to effect
such changes and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Securities, any Underwriter participating in any disposition pursuant to
such Shelf
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Registration Statement, and counsel for the Holders, at reasonable times
and in a reasonable manner, all financial and other records, pertinent
documents and properties of each of the Company and the Guarantor, and
cause the respective officers, directors and employees of each of the
Company and the Guarantor to supply all information reasonably requested by
any such representative, Underwriter, attorney or accountant in connection
with a Shelf Registration Statement, in each case that would customarily be
reviewed or examined in connection with "DUE DILIGENCE" review of the
Company and the Guarantor;
(n) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included
therein and (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as the Company or the Guarantor has
received notification of the matters to be incorporated in such filing;
(o) cause all Registrable Securities covered by a Registration
Statement to be (i) listed on each securities exchange or quotation system
on which similar securities issued by the Company or the Guarantor are then
listed, if so requested by the Majority Holders and (ii) rated with the
appropriate rating agencies, if so requested by the Majority Holders; and
(p) in the case of an Underwritten Offering pursuant to a Shelf
Registration, enter into such customary agreements and take all such other
customary actions in connection therewith (including, those reasonably
requested by counsel for the Holders) in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection, (i)
to the extent possible, make such representations and warranties to the
Holders and any Underwriters of such Registrable Securities with respect to
the business of the Guarantor, the Company and their respective
subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, 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) obtain opinions of counsel to the Company and the Guarantor
(which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) obtain "cold comfort"
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letters from the independent certified public accountants of the Company
and the Guarantor (and, if necessary, any other certified public accountant
of any subsidiary of the Company or the Guarantor, or any business acquired
by the Company or the Guarantor for which financial statements and
financial data are or are required to be included in the Registration
Statement) addressed to each selling Holder and Underwriter of Registrable
Securities, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and certificates as
may be reasonably requested by counsel for the Holders to evidence the
continued validity of the representations and warranties of each of the
Company and the Guarantor made pursuant to clause (i) above and to evidence
compliance with any customary conditions in an underwriting agreement. In
the case of any Underwritten Offering, the Company and the Guarantor shall
provide written notice to the Holders of all Registrable Securities of such
Underwritten Offering at least 30 days prior to the filing of a prospectus
supplement for such Underwritten Offering. Such notice shall (x) offer each
such Holder the right to participate in such Underwritten Offering, (y)
specify a date, which shall be no earlier than 10 days following the date
of such notice, by which such Holder must inform the Company and the
Guarantor of its intent to participate in such Underwritten Offering and
(z) include the instructions such Holder must follow in order to
participate in such Underwritten Offering.
In the case of a Shelf Registration Statement, the Company or the Guarantor
may require each Holder of Registrable Securities to promptly furnish to the
Company or the Guarantor such information regarding the Holders and the proposed
distribution by such Holder of such Registration Securities as the Company or
the Guarantor may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company or the Guarantor of the happening of
any event of the kind described in Section 3 hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3 hereof, and, if so directed by the
Company or the Guarantor, such Holder will deliver to the Company or the
Guarantor (at its expense) all copies in its possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registration Securities current at the time of receipt of such notice.
14
If the Company or the Guarantor shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Registration Statement, the
Company and the Guarantor shall extend the period during which the Registration
Statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such
notice to and including the date when the Holders shall have received copies of
the supplemented or amended Prospectus necessary to resume such dispositions.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "UNDERWRITERS") that will
administer the offering will be selected by the Holders of a majority in
principal amount of the Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
-------------------------------------------------
(a) Each of the Company and the Guarantor understands that the Staff
of the SEC has taken the position that any broker-dealer that receives
Exchange Securities for its own account in the Exchange Offer in exchange
for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "PARTICIPATING BROKER-
DEALER"), may be deemed to be an "underwriter" within the meaning of the
1933 Act in connection with any resale of such Exchange Securities.
Each of the Company and the Guarantor understands that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the 1933 Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets the
requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, each of the Company and the Guarantor agrees that the
provisions of this Agreement as they relate to a Shelf Registration shall
also apply to an Exchange Offer Registration to the extent, and with such
reasonable modifications thereto as may be reasonably requested by the
Initial Purchasers or by one or more Participating Broker-Dealers, in each
15
case as provided in clause 4 below, in order to expedite or facilitate the
disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4 above;
provided that:
(i) the Company and the Guarantor shall not be required to
amend or supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by Section
3, for a period exceeding 180 days after the Offer Termination Date
(as such period may be extended pursuant to the penultimate paragraph
of Section 3) and Participating Broker-Dealers shall not be authorized
by the Company or the Guarantor to deliver and shall not deliver such
Prospectus after such period in connection with the resales
contemplated by this Section; and
(ii) the application of the Shelf Registration procedures set
forth in Section 3 of this Agreement to an Exchange Offer
Registration, to the extent not required by the positions of the Staff
of the SEC or the 1933 Act and the rules and regulations thereunder,
will be in conformity with the reasonable request to the Company or
the Guarantor by the Initial Purchasers or with the reasonable request
in writing to the Company or the Guarantor by one or more broker-
dealers who certify to the Initial Purchasers, the Company or the
Guarantor in writing that they anticipate that they will be
Participating Broker-Dealers; and provided further that, in connection
with such application of the Shelf Registration procedures set forth
in Section 3 to an Exchange Offer Registration, each of the Company
and the Guarantor shall be obligated (x) to deal only with only the
entity representing the Participating Broker-Dealers, which shall be
X.X. Xxxxxx Securities Inc. unless it elects not to act as such
representative, (y) to pay the fees and expenses of only one counsel
representing the Participating Broker-Dealers, which shall be counsel
to the Initial Purchasers unless such counsel elects not to so act and
(z) to cause to be delivered only one, if any, "cold comfort" letter
with respect to the Prospectus in the form existing on the Offer
Termination Date.
(c) The Initial Purchasers shall have no liability to the Company,
the Guarantor or any Holder with respect to any request that they make
pursuant to Section 4 above.
5. Indemnification and Contribution.
--------------------------------
16
(a) Each of the Company and the Guarantor, jointly and severally,
agrees to indemnify and hold harmless each Initial Purchaser, each Holder
and each Person, if any who controls any Initial Purchaser or any Holder
and each affiliate of any Initial Purchaser which assists such Initial
Purchaser in the distribution of the Securities and the Guarantee within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934
Act, or is under common control with, or is controlled by, the Initial
Purchasers or any Holder, from and against any and all losses, claims,
damages and liabilities (including without limitation the reasonable legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) and arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement (or any amendment thereto pursuant to which
Exchange Securities or Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference), or
arising out of or based upon any omissions or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained
in any Prospectus (as amended or supplemented if the Company or the
Guarantor shall have furnished any amendments or supplements thereto,
including all documents incorporated therein by reference), or arising out
of or based upon any omission or alleged omission to state therein a
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, except insofar as
such losses, claims, damages or liabilities arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and in
conformity with the information relating to such Initial Purchasers or
Holder furnished in writing to the Company or the Guarantor by or on behalf
of any Initial Purchaser or Holder expressly for use in connection
therewith. In connection with any Underwritten Offering permitted by
Section 3 hereof, each of the Company and the Guarantor will also indemnify
the Underwriters, if any, selling brokers, dealers and similar securities
industry professionals participating in the distribution, their officers
and directors and each Person who controls such Persons within the meaning
of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the
same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement.
17
(b) Each of the Initial Purchasers and Holders agree, severally and
not jointly, to indemnify and hold harmless each of the Company and the
Guarantor, their directors and officers, and any Person who controls the
Company or the Guarantor within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Guarantor to the Initial Purchasers and
Holders, but only with respect to information relating to each Initial
Purchaser or Holder furnished in writing by or on behalf of such Initial
Purchaser or Holder expressly for use in any Registration Statement (or any
amendment thereto) or any prospectus (or any amendment or supplement
thereto).
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such Person (the "INDEMNIFIED
PERSON") shall promptly notify the Person against whom such indemnity may
be sought (the "INDEMNIFYING PERSON") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in
such proceeding and shall pay the reasonable fees and expenses of such
counsel related to such proceeding. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed
within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and
the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for (a) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Initial Purchasers
and all Persons, if any, who control the Initial Purchasers within the
meaning of either Section 15 of the 1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx,
(x) the fees and expenses of more than one separate firm (in addition to
any local counsel) for the Company and the Guarantor, their directors,
their officers who sign the Registration Statement and each Person, if any,
who controls the Company or the Guarantor within the meaning of either such
Section and (c) the fees and
18
expenses of more than one separate firm (in addition to any local counsel)
for all Holders and all Persons, if any, who control any Holders within the
meaning of either such Section. Any such separate firm for the Initial
Purchasers and such control Persons of Initial Purchasers shall be
designated in writing by X.X. Xxxxxx Securities Inc., any such separate
firm for the Holders and such Persons who control Holders shall be
designated in writing by the Majority Holders and any such separate firm
for the Company and the Guarantor, their directors, their officers and such
control Persons of the Company or the Guarantor shall be designated in
writing by the [Company]. The Indemnifying Person shall not be liable for
any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for reasonable fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement
is entered into more than 90 days after receipt by such Indemnifying Person
of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to
the date of such settlement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on
claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section is
unavailable to an Indemnified Person under paragraphs (a) or (b) hereof in
respect of any losses, claims, damages or liabilities referred to therein,
then an Indemnifying Person, in lieu of indemnifying such Indemnified
Person, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Company
and the Guarantor on the one hand and the Initial Purchasers or Holders on
the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of
19
the Company and the Guarantor on the one hand and the Initial Purchasers or
Holders on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantor on the one hand or by
Initial Purchasers or the Holders on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company, the Guarantor, the Initial Purchasers and each
Holder agree that it would not be just or equitable if contribution
pursuant to this Section were determined by pro rata allocation (even if
the Initial Purchasers and the Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph 5 above. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in paragraph 5 above shall be deemed to
include, subject to the limitations set forth above, any reasonable legal
or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section, no Initial Purchaser or Holder shall be
required to indemnify or contribute any amount in excess of the amount by
which the total price at which Registrable Securities were sold by such
Initial Purchaser or Holder exceeds the amount of any damages that such
Initial Purchaser or Holder 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 0000 Xxx) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The
Holders' obligations to contribute pursuant to this Section are several in
proportion to the aggregate principal amount of Registrable Securities sold
by them pursuant to such Registration Statement.
(f) Any losses, claims, damages or liabilities for which an
Indemnified Person is entitled to indemnification or contribution under
this Section shall be paid by the Indemnifying Person to the Indemnified
Person as such losses, claims, damages or liabilities are incurred. The
indemnity and contribution agreements contained in this Section and the
representations and warranties of the Company and the Guarantor set forth
in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Initial
Purchaser, any
20
Holder or any Person controlling any Initial Purchaser, any Holder, the
Company's or the Guarantor's directors or officers or any Person
controlling the Company and the Guarantor, (ii) acceptance of any Exchange
Securities (iii) any termination of this Agreement and (iv) any sale of
Registrable Securities pursuant to a Shelf Registration Statement.
21
6. Miscellaneous.
-------------
(a) No Inconsistent Agreements. Neither the Company nor the Guarantor
--------------------------
has entered into, and on or after the date of this Agreement will not enter
into, any agreement which is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof. The rights granted to the Holders hereunder do
not in any way conflict with and are not inconsistent with the rights
granted to the holders of the Company's or the Guarantor's other issued and
outstanding securities under any such agreements.
(b) 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 unless the Company or the Guarantor has obtained
the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or consent; provided, however,
that no amendment, modification, supplement, waiver or consent to any
departure from the provisions of Section 5 hereof shall be effective as
against any Holder of Registrable Securities unless consented to in writing
by such Holder.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such
Holder to the Company or the Guarantor by means of a notice given in
accordance with the provisions of this Section, which address initially is,
with respect to the Initial Purchasers, the address set forth in the
Purchase Agreement; and (ii) if to the Company or the Guarantor, initially
at the Guarantor's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance
with the provisions of this Section.
All such notices and communications shall be deemed to have been duly given
at the time delivered, if personally delivered; five business days after being
deposited in the mail, postage pre-paid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next business
day if timely delivered to an air courier guaranteeing overnight delivery.
22
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors, assigns and transferees of each of
the parties, including, without limitation and without the need for an
express assignment or assumption, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the
Purchase Agreement. The Initial Purchasers shall have no liability or
obligation to the Company or the Guarantor with respect to any failure by a
Holder to comply with, or any breach by any Holder of, the obligations of
such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company and the Guarantor
---------------------------------
shall not, and shall cause their respective affiliates (as defined in rule
405 under the 0000 Xxx) not to, purchase and then resell or otherwise
transfer any Securities (other than Exchange Securities) other than to the
Company, the Guarantor or their respective affiliates.
(f) Third Party Beneficiary. Each Holder shall be a third party
-----------------------
beneficiary to the agreements made hereunder between the Company and the
Guarantor, on the one hand, and the Initial Purchasers, on the other hand,
and shall have the right to enforce such agreements directly to the extent
it deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, 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 agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by laws of the
-------------
State of New York.
(j) Severability. In the event that one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable the validity, legality and enforceability
of
23
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
VENCOR OPERATING, INC.
By _____________________________
Name:
Title:
VENCOR HEALTHCARE, INC.
By _____________________________
Name:
Title:
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
By: X.X. XXXXXX SECURITIES INC.
By __________________________
Name:
Title:
25
CROSS-REFERENCE TARGET LIST
===========================
NOTE: DUE TO THE NUMBER OF TARGETS SOME TARGET NAMES MAY NOT APPEAR IN THE
TARGET PULL-DOWN LIST.
(This list is for the use of the wordprocessor only, is not a part of this
document and may be discarded.)
ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME
=============== =========== =============== =========== =============== =========== =============== ===========
2..............................reg.1933
2(a).................exch.off.statement
2(a)(ii)..................Xxxxxxxx.Xxxx
2(a)(iv).......................Reg.Note
2(b)..................reg.placement.agt
2(b).....................exch.offer.reg
3............................Reg.proced
3(e)..................shelf.reg.changes
3(i).....................shelf.reg.supp
3(l)...................trust.indent.act
3(o)..............reg.Securities.listed
3(p)...................reg.note.issuers
4...................Part.Broker.Dealers
4(a).................part.brok.deal.und
4(b)................part.brok.deal.exch
4(b)(iii).................xxxxx.xxx.xxx
5.........................Indem.contrib
5(d)......................indem.damages
6(b)......................Amend.waivers
26
