EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of April 7, 1998, by and between ASSISTED LIVING CONCEPTS, INC., a
Nevada corporation (the "Company"), and the purchaser whose name and address is
set forth on the signature page hereof (the "Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated as of
April 7, 1998, between the Company and the Purchaser (the "Purchase Agreement").
In order to induce the Purchaser to enter into the Purchase Agreement, the
Company has agreed to provide for the benefit of the holders (initially
consisting of the Purchaser and the Other Purchasers as defined below) of the
Company's Transfer Restricted Securities (as defined below) the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the Closing under the Purchase Agreement.
The Company proposes to enter into substantially this same form of
registration rights agreement with certain other investors (the "Other
Purchasers") and expects to complete sales of the Debentures to them. The
Purchaser and the Other Purchasers are hereinafter sometimes collectively
referred to as the "Purchasers," and this Agreement and the registration rights
agreements executed by the Other Purchasers are hereinafter sometimes
collectively referred to as the "Agreements." The term "Placement Agent" shall
mean Xxxxxxxx & Co. Inc.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following capitalized terms shall have the
following meanings:
Closing: Has the meaning such term is given in the Purchase Agreement.
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Closing Date: Has the meaning such term is given in the Purchase
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Agreement.
Common Stock: The shares of common stock of the Company, $.01 par value
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per share.
Debentures: The Company's 5.625% Convertible Subordinated Debentures due
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May 1, 2003 being sold and issued pursuant to the Purchase Agreement and the
Indenture in an aggregate principal amount of $75 million.
Effective Date: The date the Shelf Registration is declared effective by
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the SEC.
Exchange Act: The Securities Exchange Act of 1934, as amended from time to
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time.
Indemnified Holder: See Section 6(a).
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Indenture: The Indenture, dated as of April 13, 1998, between the Company
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and Xxxxxx Trust and Savings Bank, as Trustee.
NASD: National Association of Securities Dealers, Inc.
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Person: Any individual, partnership, corporation, trust or unincorporated
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organization, or government (or any agency, instrumentality or political
subdivision thereof).
Prospectus: The prospectus included in any Registration Statement, as
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amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Transfer Restricted Securities, pursuant
to any registration covered by the Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
Registrable Securities: The Debentures and the shares of Common Stock
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issuable upon conversion of the Debentures; provided that a Debenture or a share
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of Common Stock, as the case may be, ceases to be a Registrable Security when it
is no longer a Transfer Restricted Security.
Registration Expenses. See Section 5.
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Registration Statement: Any registration statement of the Company which
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covers any of the Transfer Restricted Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such Registration Statement.
Securities Act: The Securities Act of 1933, as amended from time to time.
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SEC: The Securities and Exchange Commission.
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Selling Expenses: All underwriting discounts, selling commissions and
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stock transfer taxes applicable to the Registrable Securities.
Shelf Registration: See Section 3.
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Transfer Restricted Debentures: The Debentures upon original issuance
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thereof and at all times subsequent thereto until the earlier of the following:
(i) such Debentures have been effectively registered under Section 5 of the
Securities Act and disposed of in accordance with the Registration Statement
covering them or (ii) such Debentures have been distributed to the public
pursuant to Rule 144 (or any similar provisions then in force).
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Transfer Restricted Securities: The Transfer Restricted Debentures and the
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Transfer Restricted Shares.
Transfer Restricted Shares: The shares of Common Stock issuable upon
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conversion of the Debentures until the earlier of the following: (i) such
shares of Common Stock have been effectively registered under Section 5 of the
Securities Act and disposed of in accordance with the Registration Statement
covering them or (ii) such shares of Common Stock have been distributed to the
public pursuant to Rule 144 (or any similar provisions then in force).
Trustee: The Trustee under the Indenture.
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2. Securities Subject to this Agreement
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(b) Registrable Securities. The securities entitled to the benefits of this
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Agreement are the Registrable Securities.
(c) Holders of Registrable Securities. A Person is deemed to be a holder of
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Registrable Securities whenever such Person is the beneficial owner of
Registrable Securities. The Company is entitled to treat the record holder of
Registrable Securities as beneficial owner of Registrable Securities unless
otherwise notified by such holder.
3. Shelf Registration: Timing of Filing, Effectiveness and Period of Usability
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Subject to the provisions of Section 4 hereof, the Company shall use its
best efforts to cause to be declared effective as promptly as practicable after
the Closing and in any event not later than 180 days after the Closing (October
10, 1998), a "shelf" Registration Statement (a "Shelf Registration") on Form S-3
or any other appropriate form pursuant to Rule 415 (or similar rule that may be
adopted by the SEC) under the Securities Act for all the Registrable Securities,
which form shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution thereof.
The Company agrees to use its best efforts to keep the Registration
Statement continuously effective and usable for resale of Registrable Securities
until two (2) years from the Effective Date or such shorter period which will
terminate when all the Registrable Securities covered by such Registration
Statement have been sold pursuant to such Registration Statement or when all
Registrable Securities otherwise have been sold pursuant to Rule 144 or are
freely tradeable in essentially the same manner as contemplated in Section 4
below (the "Effectiveness Period").
4. Registration Procedures
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In connection with the Company's obligation to file a Registration Statement
as provided in Section 3 hereof, the Company will as expeditiously as possible:
(a) before filing a Registration Statement or Prospectus or any amendments
or supplements thereto, furnish to Purchaser and the holders of the Registrable
Securities covered
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by such Registration Statement a copy of all such documents proposed to be
filed, which documents will be subject to the review of Purchaser and such
holders and the Company will not file any Registration Statement or amendment
thereto or any Prospectus or any supplement thereto to which the holders of a
majority in aggregate principal amount of the Registrable Securities covered by
such Registration Statement shall reasonably object (provided that the Company
may assume, for the purposes of the foregoing that any holder of Registrable
Securities has no objection if the Company has not received notice from such
holder within five business days after delivery of such documents to such
holder);
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement, and such supplements to the
Prospectus, as may be required by the rules, regulations or instructions
applicable to the registration form utilized by the Company or by the Securities
Act or rules and regulations thereunder for shelf registration or otherwise
necessary to keep the Registration Statement effective for the applicable period
and cause the Prospectus as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
or supplement to the Prospectus;
(c) notify Purchaser and the holders of Registrable Securities promptly,
and confirm such advice in writing:
(1) when the Prospectus or any Prospectus supplement or post-
effective amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment, when the same has become
effective,
(2) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose, and
(3) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(a) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(b) furnish, without charge, to Purchaser and each selling holder of
Registrable Securities, at least one conformed copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference);
(c) deliver to Purchaser and each selling holder of Registrable Securities
without charge, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons may
reasonably request; the Company consents to the use of the Prospectus or any
amendment or supplement thereto by each of
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Purchaser and the selling holders of Registrable Securities in connection with
the offering and sale of the Registrable Securities covered by the Prospectus or
any amendment or supplement thereto;
(d) at least 14 days prior to filing of the Registration Statement, use
its best efforts to furnish by certified mail to the beneficial holders of the
Registrable Securities, at the addresses of record specified on the transfer
books held by the Trustee, notice of the Company's intention to file a
Registration Statement and request that all holders of Registrable Securities
desiring to sell their Registrable Securities pursuant to the Registration
Statement notify the Company promptly in writing;
(e) cooperate with Purchaser and 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;
(f) use its best efforts to cause the Registrable Securities covered by
the Registration Statement to be registered with or approved by such
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities in
such jurisdictions within the United States of America as the sellers may
specify in response to inquiries to be made by the Company, provided that the
Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general service of process in any such jurisdiction where it is
not then so subject;
(g) as provided in Section 3, if any event shall occur as a result of
which it is necessary, in the opinion of counsel for the Company or for the
holders of a majority of the Registrable Securities, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, prepare a
supplement or post-effective amendment to the 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, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(h) obtain a CUSIP number for all Registrable Securities (unless already
obtained), not later than the Effective Date;
(i) make available for inspection during normal business hours by a
representative of the holders of a majority of Registrable Securities and any
attorney or accountant retained by such representative, all material financial
and other records, pertinent and material corporate documents and properties of
the Company, and cause the Company's officers, directors and employees to supply
all material information reasonably requested by such representative or any such
attorney or accountant in connection with the Registration Statement; provided
that all such records, information or documents shall be kept confidential by
such Persons unless disclosure of such records, information or documents is
required by court or administrative order or is
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generally available to the public other than as a result of disclosure in
violation of this paragraph (l);
(j) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC, and make generally available to their security holders
an earning statement satisfying the provisions of Section 11(a) of the
Securities Act (in accordance with Rule 158 thereunder or otherwise), no later
than 45 days after the end of the 12-month period (or 90 days, if such period is
a fiscal year) beginning with the first month of the Company's first fiscal
quarter commencing after the Effective Date, which statements shall cover said
12-month period;
(k) cause the Indenture to be qualified under the Trust Indenture Act of
1939, as amended from time to time (the "TIA"), and, in connection therewith,
cooperate with the Trustee under the Indenture and the holders of the Debentures
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
their 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; and
(l) if at any time an event of the kind described in Section 4(j) shall
occur, promptly notify Purchaser and the holders of Registrable Securities that
the use of the Prospectus must be discontinued.
Each selling holder of Registrable Securities as to which any registration
is being effected agrees, as a condition to the registration obligations with
respect to such holder provided herein, to furnish to the Company such
information regarding the distribution of such securities as the Company may
from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company
described in paragraph 4(o), such holder will forthwith discontinue disposition
of Registrable Securities until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(j) hereof, or until
it is advised in writing by the Company (which notice the Company shall give as
promptly as reasonably possible), that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings which are
incorporated by reference in the Prospectus, and, if so directed by the Company,
such holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
5. Registration Expenses
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(e) All expenses (other than Selling Expenses) incident to the Company's
performance of or compliance with this Agreement, including without limitation:
(1) all registration, filing and listing fees;
(2) fees and expenses of compliance with securities or blue sky laws
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(including reasonable fees and disbursements of one counsel in connection
with blue sky qualifications of the Registrable Securities and
determination of their eligibility for investment under the laws of such
jurisdictions as the holders of a majority in principal amount of the
Registrable Securities being sold may reasonably designate);
(3) printing, messenger, telephone and delivery expenses;
(4) fees and disbursements of counsel for the Company;
(5) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any special audit
necessary to satisfy the requirements of the Securities Act and any "cold
comfort" letters required by or incident to such performance);
(6) securities acts liability insurance if the Company so desires;
(7) fees and expenses of other Persons retained by the Company; and
(8) fees and expenses associated with any NASD filing required to be
made in connection with the Registration Statement
(all such expenses being herein called "Registration Expenses") will be borne by
the Company, regardless of whether the Registration Statement becomes effective.
The Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities to
be registered on a securities exchange, rating agency fees and the fees and
expenses of any Person, including special experts, retained by the Company.
6. Indemnification and Contribution
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(f) Indemnification by the Company. The Company agrees, to indemnify and
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hold harmless each holder of Registrable Securities, its officers, directors,
employees and agents and each Person who controls such holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
(each such person being sometimes hereinafter referred to as an "Indemnified
Holder") from and against all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and legal expenses) arising out of
or based upon 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 arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any such untrue statement or omission or
allegation thereof based upon information furnished in writing to the Company by
such holder expressly for use therein; provided, however, that the Company shall
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not be liable in any such case to the extent that any
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such loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus if (i) such holder failed to send or deliver
a copy of the Prospectus with or prior to the delivery of written confirmation
of the sale of Registrable Securities and (ii) the Prospectus would have
corrected such untrue statement or omission; and provided further, that the
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Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission in the
Prospectus, if such untrue statement or alleged untrue statement, omission or
alleged omission is corrected in an amendment or supplement to the Prospectus
and if, having previously been furnished by or on behalf of the Company with
copies of the Prospectus as so amended or supplemented, such holder thereafter
fails to deliver such Prospectus as so amended or supplemented, prior to or
concurrently with the sale of a Registrable Security to the person asserting
such loss, claim, damage, liability or expense who purchased such Registrable
Security which is the subject thereof from such holder. This indemnity will be
in addition to any liability which the Company may otherwise have. The Company
will also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
to the same extent as provided above with respect to the indemnification of the
holders of Registrable Securities.
If any action or proceeding (including any governmental investigation or
inquiry) shall be brought or asserted against any Indemnified Holder in respect
of which indemnity may be sought from the Company, such Indemnified Holder shall
promptly notify the Company in writing (but the omission to so notify the
Company shall not relieve it of any liability that it may have against any
Indemnified Holder otherwise than under this subsection), and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and the payment of all expenses.
Indemnified Holders shall have the right, collectively, to employ their own
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be the expense of the Indemnified
Holders unless (a) the Company has agreed to pay such fees and expenses or (b)
the Company shall have failed to assume the defense of such action or proceeding
and have failed to employ counsel reasonably satisfactory to the Indemnified
Holders in any such action or proceeding or (c) the named parties to any such
action or proceeding (including any impleaded parties) include the Indemnified
Holders and the Company, and the Indemnified Holders shall have been advised by
counsel that there may be one or more legal defenses available to the
Indemnified Holders which are different from or additional to those available to
the Company (in which case, if the Indemnified Holders notify the Company in
writing that they elect to employ their own counsel at the expense of the
Company, the Company shall not have the right to assume the defense of such
action or proceeding on behalf of the Indemnified Holders, it being understood,
however, that the Company shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for the
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Indemnified Holders which firm shall be designated in writing by the Indemnified
Holders representing at least a majority of the aggregate principal amount of
the outstanding Debentures). Any such fees and expenses payable by the Company
shall be paid to the Indemnified Holders entitled thereto as incurred by the
Indemnified Holders. The Company shall not be liable for any settlement of any
such action or proceeding effected without its written consent, but if settled
with its written consent, or if there be a final judgment for the plaintiff in
any such action or proceeding, the Company agrees to indemnify and hold harmless
the Indemnified Holders from and against any loss or liability by reason of such
settlement or judgment.
(b) Indemnification by Holder of Registrable Securities. Each holder of
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Registrable Securities agrees to indemnify and hold harmless the Company, its
respective directors, officers, employees and agents and each Person, if any,
who controls the Company within the meaning of either 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 such holder, but only with respect to
information relating to such holder furnished in writing by such holder
expressly for use in any Registration Statement or Prospectus, or any amendment
or supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against the Company or its respective directors,
officers, employees or agents or any such controlling person, in respect of
which indemnity may be sought against a holder of Registrable Securities, such
holder shall have the rights and duties given the Company, and the Company or
its respective directors, officers, employees or agents or such controlling
person shall have the rights and duties given to each holder by the preceding
paragraph. In no event shall the liability of any selling holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the proceeds
received by such holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation. Each holder of Registrable Securities will
also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
to the same extent as provided above with respect to the indemnification of the
Company. The Company and each holder of Registrable Securities shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to information
so furnished in writing by such Persons specifically for inclusion in any
Prospectus or Registration Statement.
(c) Contribution. If the indemnification provided for in this Section 6 is
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unavailable to an indemnified party under Section 6(a) or Section 6(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company from the sale of the Debentures to Purchaser pursuant to the
Purchase Agreement on the one hand and each holder of Registrable Securities
from the offering of the Registrable Securities by such holder, on the other
hand, or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in
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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 on
the one hand and each holder of Registrable Securities on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, or liabilities, as well as the other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and each holder of Registrable Securities on the other shall be deemed to be in
the same proportion as the aggregate amount paid by Purchaser to the Company
pursuant to the Purchase Agreement for the Registrable Securities purchased by
such holder that were sold pursuant to the Registration Statement bears to the
difference (the "Difference") between the amount such holder paid for the
Registrable Securities that were sold pursuant to the Registration Statement and
the amount received by such holder from such sale. The relative fault 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 particular
holder and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the holders of Registrable Securities agree that it would not be just and
equitable if contributions pursuant to this subsection (c) were to be determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable consideration referred to in the first sentence of this
subsection (c). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (c) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigation or defending
against any action or claim that is the subject of this subsection (c).
Notwithstanding the provision of this subsection (c), each holder of Registrable
Securities shall not be required to contribute any amount in excess of the
amount by which the Difference exceeds the amount of any damages that such
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 Securities Act),
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
2. Rule 144 and Rule 144A
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During the Effectiveness Period and for so long as the Company is subject
to the reporting requirements of Section 13 or 15 of the Exchange Act, the
Company covenants that it will file the reports required to be filed by it under
the Securities Act and Section 13(a) or 15(d) of the Exchange Act and the rules
and regulations adopted by the SEC thereunder. If the Company is not subject to
the reporting requirements of Section 13 or 15 of the Exchange Act, the Company
also covenants that it will provide the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any holder of
Registrable Securities which continues to be "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act and it will take such further
action as any holder of such Registrable Securities may reasonably request, all
to the extent required from time to time to enable such holder to sell its
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, so long as such provision does
not require the public filing of information
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relating to the Company which the Company is not otherwise required to file, (b)
Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or (c) any similar rule or regulation hereafter adopted by the SEC that
does not require the public filing of information relating to the Company. Upon
the request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
8. Miscellaneous
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(h) No Inconsistent Agreements. The Company will not on or after the date
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of this Agreement enter into any agreement with respect to their securities
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 of Registrable Securities hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any such agreements.
(i) Adjustments Affecting Registrable Securities. The Company will not
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take any action, or permit any change to occur, with respect to the Registrable
Securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(j) Amendments and Waivers. The provisions of this Agreement, including
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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 has obtained the written consent of holders of a
majority of the Transfer Restricted Debentures and a majority of the Transfer
Restricted Shares. Notwithstanding the foregoing, a waiver of consent to
departure from the provision hereof that relates exclusively to the rights of
holders of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Registrable Securities may be given by the holders of
a majority of the Transfer Restricted Securities being sold.
(k) Notices. All notices, requests, consents and other communications
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hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, telecopier, or nationally recognized overnight express
courier postage prepaid, and shall be deemed given when so mailed or if
telecopied, when receipt is acknowledged, and shall be delivered as addressed as
follows:
(1) if to the Purchaser, at the most current address given by the
Purchaser to the Company in accordance with the provisions of this Section
8(d), which address initially is as set forth on the signature page hereto;
(2) if to a holder of Registrable Securities, at its address of
record as indicated on the books of the transfer agent and registrar for
the Registrable Securities; and
(3) if to the Company, initially at its address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance
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with the provisions of this Section 8(d).
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the addresses specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
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and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
holders of Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
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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.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
RULES AS TO CONFLICTS OF LAW.
(i) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter hereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the securities
sold pursuant to the Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ASSISTED LIVING CONCEPTS, INC.
By: /S/ Xxxxx Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxxx Xxxxx Xxxxxx
Title: President and Chief Operating Officer
Print or Type:
Name of Purchaser (Individual or Institution):
/S/ Xxxxxxxx & Co., Inc.
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Name of Individual representing
Purchaser (if an Institution):
/S/ Xxxxxxx X xx Xxxxxx
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Title of Individual representing
Purchaser (if an Institution):
Managing Director
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Signature by:
Purchaser or Individual
representing Purchaser:
/S/ Xxxxxxx X xx Xxxxxx
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Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
-13-
