EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
AMONG
VITAS HEALTHCARE CORPORATION,
CERTAIN STOCKHOLDERS OF
VITAS HEALTHCARE CORPORATION,
CHEMED CORPORATION
AND
THE INVESTORS IDENTIFIED HEREIN
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JUNE 4, 1993
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is dated as of June 4, 1993 and is
among Vitas Healthcare Corporation, a Delaware corporation (the "Company"), and
certain stockholders of the Company, Chemed Corporation, a Delaware corporation
("Chemed"), and the Investors, in each case identified on schedule A attached
hereto.
1. BACKGROUND; DEFINITIONS.
1.1 Background.
A. The Company and the persons and entities set forth on Schedule A
under the heading Investors (collectively, "Investors") are parties to a
Preferred Stock Purchase Agreement dated as of the date hereof (the "Stock
Purchase Agreement") pursuant to which the Investors will purchase the number of
shares of Series B Convertible Preferred Stock, par value $1.00 per share, of
the Company (the "Preferred Stock") set forth opposite their respective names on
Schedule A attached hereto. Each share of Preferred Stock is convertible into
shares of common stock of the Company, par value $.001 per share (the "Common
Stock"), in accordance with the terms of the Certificate of Designation,
Preferences and Other Rights of the Series B Preferred Stock. As a condition to
the execution of the Stock Purchase Agreement, the Investors have required that
the Company grant to them registration rights as set forth herein.
B. The Company, Chemed and OCR Holding Company, a Nevada corporation
and wholly owned subsidiary of Chemed ("OCR"), entered into a Registration
Rights Agreement (the "Old Registration Agreement") dated as of December 17,
1991 in connection with the purchase by OCR of 270,000 shares of 9% cumulative
nonconvertible preferred stock, par value $1.00 per share, and the issuance by
the Company to OCR of two warrants (the "Warrants") entitling OCR to purchase
certain shares of the Common Stock, subject to the terms and conditions of the
Warrants (the "Warrant Shares"). The Company desires, and Chemed and OCR have
agreed, to terminate the Old Registration Agreement and include Chemed and OCR
as parties to this Agreement. Upon the execution of this Agreement by the
Company, Chemed and OCR, the Old Registration Agreement shall be deemed
terminated and of no further force and effect.
C. The Company has deemed it advisable and in its best interest to
grant to certain existing security holders of the Company having a significant
equity interest in the Company, other than OCR, as set forth in Schedule A
attached hereto (collectively,
the "Other Stockholders") registration rights in order to enable the Company to
have an orderly and integrated approach to registration rights for certain
stockholders, including OCR, at the same time that such rights are granted to
the Investors.
1.2 Certain Definitions. For purposes of this Agreement, the following
terms shall have the meanings set forth below:
(a) The terms "register," "registered," and "registration" refer to
a registration effected by preparing and filing a registration statement under
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "Securities Act"), and the declaration of
effectiveness of such registration statement.
(b) The term "Investor Registrable Securities" means: (i) the Common
Stock issued or issuable upon conversion of the Preferred Stock (the "Conversion
Shares"); (ii) the Common Stock of the Company acquired by the Investors or a
Transferee (as hereafter defined), including pursuant to the Stockholders'
Agreement dated the date hereof among the Company, Xxxx X. Xxxxxxxxx and Xxxxxx
X. Xxxxxxxxx (the "Principal Stockholders"), and the Investors (the
"Stockholders' Agreement"); and (iii) any Common Stock of the Company or any
subsidiary of the Company issued as or issuable upon the conversion or exercise
of any right or security which is issued as a dividend or other distribution
with respect to, or in exchange for or in replacement of, the Preferred Stock or
the Common Stock referred to in subsections (i) and (ii) above, or in connection
with a stock split, combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise, other than shares of capital
stock distributed to the public pursuant to an effective registration statement
or Rule 144 (or successor thereto) under the Securities Act, or the subject of a
transaction permitted by Section 4(1) of the Securities Act, and excluding in
all cases, however, any Investor Registrable Securities sold by a person in a
transaction in which its rights under this Agreement are not assigned.
(c) The number of shares of "Investor Registrable Securities then
outstanding" shall be the number of shares of Common Stock outstanding which are
Investor Registrable Securities, and the number of shares of Common Stock which
would be Investor Registrable Securities upon issuance upon conversion or
exercise of, or in exchange for, any of the securities referred to in Section
1.2(b).
(d) The term "Holder" means any person owning or having the right to
acquire Investor Registrable Securities or any assignee thereof in accordance
with the terms of the Stockholders' Agreement.
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(e) The term "Other Registrable Securities" means: (i) the Common
Stock owned or hereafter acquired by the Principal Stockholders and the Other
Stockholders; (ii) the Common Stock issued or issuable upon exercise of stock
options currently outstanding or granted to the Principal Stockholders and the
Other Stockholders after the date hereof by the Board of Directors or any other
right or security held by such Principal Stockholders and Other Stockholders;
(iii) any Common Stock of the Company or any subsidiary of the Company issued as
or issuable upon the conversion or exercise of any right or security which is
issued as a dividend or other distribution with respect to, or in exchange for
or in replacement of, the Common Stock referred to in subsections (i) and (ii)
above, or in connection with a stock split, combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise,
other than shares of capital stock distributed to the public pursuant to an
effective registration statement or Rule 144 (or successor thereto) under the
Securities Act or the subject of a transaction permitted by Section 4(1) of the
Securities Act.
(f) The term "OCR Registrable Securities" means (i) the Warrant
Shares; (ii) any Common Stock owned or hereafter acquired by OCR; and (iii) any
Common Stock of the Company or any subsidiary of the Company issued as or
issuable upon the conversion or exercise of any right or security which is
issued as a dividend or other distribution with respect to, or in exchange for
or in replacement of the Warrant Shares or the Common Stock referred to in
subsection (ii) above, or in connection with a stock split, combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise, other than shares of capital stock distributed to the public pursuant
to an effective registration statement or Rule 144 (or successor thereto) under
the Securities Act or the subject of a transaction permitted by Section 4(1) of
the Securities Act.
(g) The term "Common Stock on a fully diluted basis" means, at the
time of determination, the number of shares of Common Stock equal to the sum of
(i) the number of outstanding shares of Common Stock, (ii) the number of
Conversion Shares, (iii) the number of Warrant Shares, (iv) the number of shares
of Common Stock issuable upon the conversion or exchange of all outstanding
securities convertible or exchangeable for shares of Common Stock (other than
the Preferred Stock) and upon the exercise of all outstanding options, rights or
warrants (other than the Warrants) to purchase shares of Common Stock
outstanding, in each case on the date of determination.
(h) The term "registrable stock" means, in any particular context
herein, collectively (i) the Investor Registrable Securities held by the
Holders, (ii) the Other
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Registrable Securities held by the Principal Stockholders and the Other
Stockholders, and (iii) the OCR Registrable Securities held by OCR, in each case
entitled to the registration rights that are the subject of the provision in
which such term is used.
2. REGISTRATION.
2.1 Registration on Request.
(a) If at any time prior to the closing of a Qualified Public
Offering (as defined in the Certificate of Designation, Preferences and Other
Rights of the Preferred Stock) but after January 1, 1996, the Holders and/or any
securityholders, together or individually, with other securityholders of the
Company holding in the aggregate a majority of the Common Stock on a fully
diluted basis (collectively, "Requesting Holders") deem it appropriate that the
Company offer to the public its Common Stock pursuant to a registration
statement under the Securities Act (the "Initial Public Offering"), the
Requesting Holders shall provide written notice to the Company. The Company will
promptly give written notice of such requested offering by certified or
registered mail to all Holders, OCR, the Principal Stockholders and the Other
Stockholders (collectively, "holders"). The holders may thereupon request the
registration of all or part of the registrable stock held by the holders
concurrently with such Initial Public Offering, which request shall specify the
intended method or methods of disposition of such registrable stock. The Company
will use its best efforts to file (at the earliest possible date and if possible
within ninety (90) days after the giving of such written notice by the Company)
the registration statement for the Initial public Offering including therein:
(i) Investor Registrable Securities, OCR Registrable
Securities and Other Registrable Securities which the Company has been so
requested to register by a Holder or Holders, OCR, the Principal
Stockholders and the Other Stockholders for disposition in accordance with
the intended method of disposition stated in such request; and
(ii) other registrable stock which the Company has been
requested to register by other holders, by written request delivered to
the Company within 30 days after the giving of such written notice by the
Company (which request shall specify the intended method of disposition of
such registrable stock), provided that if the Company shall have
previously effected a registration of which notice has been given to
holders pursuant to Section 2.2, the Company shall not be required to
effect a registration pursuant to this Section 2.1(a) until a period of
nine (9) months shall have
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elapsed from the termination of effectiveness of the most recent such
previous registration.
(b) At any time after the earlier of (x) the Initial Public Offering
and (y) the date the Company becomes a reporting company under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), Xxxxx Partners
II, L.P. and Warburg, Xxxxxx Investors, L.P. (each a "Principal Holder") shall
each be entitled to request, one time, in writing that the Company effect the
registration under the Securities Act of all or part of the Investor Registrable
Securities held by such Principal Holder, which request shall specify the
intended method or methods of disposition of such Investor Registrable
Securities. The Company will promptly give written notice of such requested
registration by certified or registered mail to all holders and thereupon will
use its best efforts to file (at the earliest possible date and if possible
within 90 days after the giving of such written notice by the Company) the
registration, under the Securities Act, of:
(i) the Investor Registrable Securities which the Company has
been so requested to register by such principal Holder, for disposition in
accordance with the intended method of disposition stated in such request;
and
(ii) all other Investor Registrable Securities which the
Company has been requested to register by a Holder or Holders, by written
request delivered to the Company within 30 days after the giving of such
written notice by the Company (which request shall specify the intended
method of disposition of such Investor Registrable Securities), provided
that:
(A) if the Company shall have previously effected a
registration pursuant to Section 2.1(a), or shall have previously
effected a registration of which notice has been given to all
holders pursuant to Section 2.2, the Company shall not be required
to effect another registration pursuant to this Section 2.1(b) until
a period of nine (9) months shall have elapsed from the termination
of effectiveness of the most recent such previous registration;
(B) the Company shall not be required to effect any
registration pursuant to this Section 2.1(b) unless the Principal
Holder and Holders requesting registration pursuant to clauses (i)
and (ii) above have requested to include in the applicable
registration Investor Registrable Securities owned by them
representing an anticipated aggregate value of at least $5,000,000;
and
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(C) if the Board of Directors determines in good faith and in
the exercise of its reasonable business judgment that the
registration and distribution of all or a specified portion of
Investor Registrable Securities will result in a twenty-five percent
(25%) or more decrease in the market price of the then outstanding
Common Stock, then the Company shall not be required to effect the
registration requested pursuant to this Section 2.1(b) until such
time as shall be reasonably determined by the Board of Directors to
permit such registration and distribution without resulting in such
a decrease in price; provided that in the event the Principal Holder
requesting registration under this Section 2.1(b) is Warburg, Xxxxxx
Investors, L.P. ("Warburg") and Warburg provides written notice to
the Company that it requests registration under this Section 2.1(b)
in order to make a distribution of Investor Registrable Securities
held by Warburg to its limited partners, then notwithstanding
anything contained in this Section 2.1(b)(ii)(C) to the contrary,
the Company shall be required to effect the registration of Investor
Registrable Securities held by Warburg (and no other holders) for
such purpose only in accordance with the terms of this Section
2.1(b) (a "Warburg Distribution Demand")
If any registration requested by the holders pursuant to Section 2.1 is
for an underwritten offering, the Company shall have the right to designate the
underwriter, who shall be an investment banking firm of nationally recognized
standing.
(c) The Company will pay all Registration Expenses in connection
with the registration effected by the Company of registrable stock (including in
connection with the Initial Public Offering) pursuant to Section 2.1(a) and the
registration of Investor Registrable Securities pursuant to Section 2.1(b). The
term "Registration Expenses" shall mean all expenses incident to the Company's
performance of or compliance with this Section 2 including, without limitation,
all registration and filing fees; all printing expenses; the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits required by or
incident to such performance and compliance. Registration Expenses shall exclude
underwriting discounts and/or commissions (or similar payments), transfer taxes,
if any, on registrable stock sold by the holders, all fees and expenses of
compliance with state securities or blue sky laws attributable to such
registrable stock, and the fees and disbursements of counsel for the holders,
all of which shall be borne by the holders.
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(d) If any registrable stock included by any holder in a
registration pursuant to this Section 2.1 are to be sold in an underwritten
offering, then each other holder who is registering registrable stock in the
same registration shall have the right, at its election, to demand that all
registrable stock be sold in such underwritten offering on the same terms and
conditions, including price, subject, however, to the provisions of Section
2.3(b).
(e) A registration requested pursuant to this Section 2.1 shall not
be deemed to have been effected (i) unless a registration statement with respect
thereto has become effective, provided that a registration which does not become
effective after the Company has filed a registration statement with respect
thereto solely by reason of the refusal to proceed of the holders or Holders, as
the case may be, requesting such registration (the "Initiating Holders") shall
be deemed to have been effected by the Company at the request of such Initiating
Holders unless the Initiating Holders shall have elected to pay all Registration
Expenses in connection with such registration that does not become effective;
provided, however, that if at the time of such refusal to proceed (A) the
Initiating Holders have learned of a material adverse change in the business,
condition or prospects of the Company not known to the Initiating Holders at the
time of their request, (B) the existence of such material adverse change was
known to the Company at the time of the Initiating Holders' request for
registration, and (C) the Initiating Holders have notified the Company of their
refusal to proceed with reasonable promptness following disclosure by the
Company of such material adverse change, then such registration shall not be
deemed to have been effected and the Initiating Holders shall not be required to
pay any Registration Expenses in connection therewith; (ii) if, after it has
become effective, such registration is the subject of any stop order, injunction
or other order or requirement of the Securities and Exchange Commission (the
"Commission") or other governmental agency or court for any reason which cannot
be cured within five (5) business days of the issuance of such stop order,
injunction, order or requirement; or (iii) if the conditions to closing
specified in any underwriting agreement entered into in connection with such
registration are not satisfied and the closing does not occur, other than by
reason of some act or omission by any such Initiating Holders.
2.2. Incidental Registration.
(a) If the Company at any time proposes to register any of its
securities under the Securities Act, whether or not for sale for its own
account, other than pursuant to Section 2.3(b) and other than in connection with
a Warburg Distribution Demand, on a form (other than Form S-4 or S-8) and in a
manner which would permit registration of shares of Common Stock for sale to the
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public under the Securities Act, it will, each such time, give prompt written
notice to all Holders, OCR, the Principal Stockholders and the Other
Stockholders (collectively, "holders") of its intention to do so, describing
such securities and specifying the form and manner and the other relevant facts
involved in such proposed registration. Upon the written request of any holder
delivered to the Company within 30 days after the giving of any such notice
(which request shall specify the number of shares of registrable stock intended
to be disposed of by such holder and the intended method of disposition
thereof), the Company will include in such registration such number of shares of
registrable stock as a holder may specify in its request, provided that:
(i) if, at any time after giving such written notice of its
intention to register any of its securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register
such securities, the Company may, at its election, give written notice of
such determination to each holder and thereupon shall be relieved of its
obligation to register any registrable stock in connection with such
registration (but not from its obligation to pay the Registration Expenses
already incurred in connection therewith as provided in subsection (b) of
this Section 2.2), without prejudice, however, to the rights of any one or
more holders to request registration pursuant to Section 2.1;
(ii) if (A) the registration so proposed by the Company
involves an underwritten offering of the securities so being registered,
whether or not for sale for the Company's own account, other than pursuant
to Section 2.1 or Section 2.3(b), (B) the registrable stock so requested
to be registered for sale for the account of any holder are not also to be
included in such underwritten offering, and (C) the managing underwriter
of such underwritten offering shall notify the Board of Directors of the
Company in writing that the registration and distribution of all or a
specified portion of registrable stock concurrently with the securities
being distributed by such underwriters would materially interfere with the
successful marketing of such securities by such underwriters (such notice
to summarize the reasons therefor), then the Company will promptly furnish
each holder who has requested registration of such registrable stock not
to be included in such underwritten offering pursuant to this Section 2.2
with a copy of such notice. The Company may require, by written request
accompanying such copy of such notice to each such holder, that the
registrable stock requested to be included in such registration statement
be
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included in such underwritten offering or be excluded from such
registration; and
(iii) the Company shall not be obligated to effect any
registration of registrable stock under this section 2.2 incidental to the
registration of any of its securities in connection with mergers, exchange
offers, dividend reinvestment plans, employee stock ownership plans or
stock option plans, thrift plans, pension plans or other employee benefit
plans.
(b) The Company will pay all Registration Expenses (including for
purposes of this Section 2.2, the reasonable fees and disbursements of one
counsel for the holders, as a group, on whose behalf securities are being
registered) in connection with each registration of registrable stock requested
by a holder pursuant to this Section 2.2.
2.3. Registration Procedures.
(a) If and whenever the Company is requested or required to effect
the registration of any registrable stock under the Securities Act as provided
in Sections 2.1, 2.2 or 2.3(b), the Company will as expeditiously as possible:
(i) prepare and file with the Commission a registration
statement on the appropriate form with respect to such registrable stock
and use its reasonable best efforts to cause such registration statement
to become effective as promptly as practicable;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to use its reasonable best efforts to comply with
the provisions of the Securities Act applicable to the Company with
respect to the disposition of all securities covered by such registration
statement until the earlier of such time as all registrable stock has been
disposed of in accordance with the intended methods of disposition by the
holders thereof set forth in such registration statement or the expiration
of 180 days after such registration statement becomes effective;
(iii) furnish to each holder participating in the registration
such number of conformed copies of such registration statement and of each
such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus
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and any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such
registration statement or prospectus, and such other documents of the
Company, as such holder may reasonably request to facilitate the
disposition of registrable stock owned by it;
(iv) use its reasonable best efforts to register or qualify
all securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions within the United States
and its territories as each holder participating in the registration shall
reasonably request, and do any and all other reasonable acts and things
which may be reasonably necessary or advisable to enable such holder to
consummate the disposition in such jurisdictions of its registrable stock
covered by such registration statement, except that the Company shall not
for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified, or
to consent to general service of process in any such jurisdiction;
(v) furnish to each Holder of 25% of more of Investor
Registrable Securities covered by such registration statement, and use its
reasonable best efforts to furnish to each other holder of registrable
stock covered by such registration statement, a signed counterpart,
addressed to such holder, of (A) an opinion of counsel for the Company,
dated the effective date of such registration statement (or, if such
registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement), and (B) a "cold comfort"
letter signed by the independent public accountants who have certified the
Company's financial statements included in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in
underwritten public offerings of securities of issuers in the health-care
industry;
(vi) promptly notify each holder of registrable stock covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
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to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and at the
request of any such holder prepare and furnish to such holder a reasonable
number of copies of a supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to the purchasers of
such registrable stock, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(vii) notify each holder of registrable stock covered by such
registration statement promptly after the Company shall receive notice or
obtain knowledge of the issuance of any stop order by the Commission
suspending the effectiveness of any such registration statement or
amendment thereto or of the initiation or threatening of any proceeding
for that purpose, and promptly use reasonable best efforts to prevent the
issuance of any stop order or obtain its withdrawal promptly if such stop
order should be issued;
(viii) use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its securities holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more than
eighteen months, beginning with the first month of the first fiscal
quarter after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(ix) use its reasonable best efforts to effectuate the listing
of the registrable stock to be sold on any exchange on which the Common
Stock is then listed.
The Company may require each holder as to which any registration is
being effected to furnish the Company with such information regarding such
holder and the distribution of its registrable stock as the Company may from
time to time request in writing, for inclusion in the applicable registration
statement, as reasonably determined by the Company to be required by law, or by
the Commission, in connection therewith and each holder shall furnish such
information as promptly as practicable after such request.
(b) If requested by the underwriters for any underwritten offering
with respect to an Initial Public Offering or on behalf of a holder or holders
pursuant to a registration requested under Section 2.1, the Company will enter
into an
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underwriting agreement upon mutually satisfactory terms with such underwriters
for such offering, such agreement to contain such representations and warranties
by the Company and the holders and such other terms and provisions as are
customarily contained in underwriting agreements, including, without limitation,
customary indemnities. Whenever a registration requested by one or more holders
pursuant to Section 2.1 is for an underwritten offering, and the underwriters
shall determine that the inclusion of all or a specified portion of registrable
stock requested to be included in such offering would materially interfere with
the successful marketing of such offering, to the extent determined to be
necessary by the underwriters, (i) in the case of a registration pursuant to
Section 2.1(a), the registrable stock requested to be registered by the holders
shall be excluded on a pro rata basis based upon the respective numbers of
registrable stock proposing to participate in such underwritten offering, and
(ii) in the case of a registration pursuant to Section 2.1(b), the Other
Registrable Securities requested to be registered by the Principal Stockholders
and the Other Stockholders shall be excluded first, and to the extent reasonably
determined to be necessary by the underwriters, the Investor Registrable
Securities and the OCR Registrable Securities requested to be registered by the
Holders and OCR, respectively, shall be excluded next on a pro rata basis based
upon the respective numbers of Investor Registrable Securities and OCR
Registrable Securities proposing to participate in such underwritten offering
(the shares excluded in an Initial Public Offering or in a secondary offering
shall be referred to herein as the "Deferred Demand Securities"). The exclusions
in the preceding sentence shall apply until the completion of the distribution
of such securities by such underwriters, but in no event for a period of more
than 150 days after the effective date of such registration. In the event that,
in accordance with this Section 2.3(b), any registrable stock held by a holder
proposing to participate in such underwritten offering pursuant to Section 2.1
shall have been excluded, the Company shall, not later than the end of the 150
day period referred to above, register such Deferred Demand Securities to the
extent required to permit the distribution thereof in accordance with the
intended method of disposition previously disclosed to the Company pursuant to
Section 2.1, unless such holder shall have withdrawn its request to register its
Deferred Demand Securities, and no such deferred registration hereunder shall be
deemed to be a registration pursuant to Section 2.1 hereof. The registration of
such Deferred Demand Securities pursuant to an underwritten offering shall again
be subject to exclusion as set forth in the second sentence of this Section
2.3(b); provided that in no event will the Company be required to effect more
than one registration of Deferred Demand Securities in connection with any
exercise of demand registration rights pursuant to Section 2.1. The Company will
pay all Registration Expenses in connection with the registration of Deferred
Demand Securities
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pursuant to this Section 2.3(b), if the proposed underwritten offering with
respect to which such Securities were deferred was an offering in respect of
which the Company was required to pay Registration Expenses pursuant to Section
2.1(c) hereof.
(c) If the Company at any time proposes to register any of its
securities under the Securities Act whether or not for sale for its own account
as contemplated by Section 2.2, but in circumstances in which Section 2.1 and
Section 2.3(b) do not apply, and such securities are to be distributed by or
through one or more underwriters, the Company will make reasonable efforts, if
requested by any holder who requests incidental registration of registrable
stock in connection therewith pursuant to Section 2.2, to arrange for such
underwriters to include such registrable stock among those securities to be
distributed by or through such underwriters; provided, however, that if the
underwriters shall determine that the inclusion of all or a specified portion of
such registrable stock would materially interfere with the successful marketing
of such offering, all registrable stock requested to be included shall be
excluded, pro rata, based upon the respective numbers of registrable stock
proposing to participate in such underwritten offering. The holders on whose
behalf registrable stock is to be distributed by such underwriters shall be
parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters, shall also be made to and for the benefit of
such holders. Any such holder of registrable stock shall not be required to make
any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, such holder's registrable stock and such holder's intended method of
distribution and any other representations reasonably required and customary in
connection with the registration.
(d) Whenever a deferred registration required pursuant to Section
2.3(b) is for an underwritten offering, or if the Company at any time proposes
to register any of its securities under the Securities Act for sale for its own
account and such securities are to be distributed by or through one or more
underwriters, the Company shall have the right to select the managing
underwriter to administer the offering subject to the approval of the holders of
a majority of the registrable stock included in such registration, such approval
not to be unreasonably withheld.
(e) If any registration pursuant to Sections 2.1, 2.2 or 2.3(b)
shall be in connection with an underwritten offering, each holder agrees, if so
timely required in writing by the managing underwriters, not to sell or
otherwise dispose of (other than to donees who agree to be similarly bound)
registrable stock (other
-13-
than as part of such underwritten public offering) within the period commencing
seven days prior to the effective date of such registration statement and ending
180 days after the effective date of such registration statement, unless
otherwise consented to by the managing underwriters. Each holder of registrable
stock agrees that the Company may instruct its transfer agent to place stop
transfer notations in its records to enforce this Section 2.3(e).
(f) Each holder agrees by acquisition of the registrable stock that,
upon receipt of any notice from the Company of the occurrence of any event of
the kind described in subsection (a)(vi) of this Section 2.3, such holder will
forthwith discontinue the disposition of registrable stock pursuant to the
registration statement relating to such registrable stock until such holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
subsection (a)(vi) of this Section 2.3 and, if so directed by the Company, 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
relating to such securities at the time of receipt of such notice; provided,
that if the registration statement is for an underwritten offering, such holder
will use all reasonable efforts to cause the underwriters of such offering to
discontinue the disposition of the registrable stock. In the event the Company
shall give any such notice, the period referred to in subsection (a)(ii) of this
Section 2.3 shall be extended by the length of the period from and including the
date when each seller of any registrable stock covered by such registration
statement shall have received such notice to the date on which each such seller
has received the copies of the supplemented or amended prospectus contemplated
by subsection (a)(vi) of this Section 2.3.
2.4. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering registrable
stock, the Company will give the holders on whose behalf such securities are to
be so registered and their underwriters, if any, and their respective counsel
and accountants, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Company and its subsidiaries with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such holders and such underwriters or
their respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
-14-
2.5. Indemnification.
(a) In the event of any registration of any securities of the
Company pursuant to Sections 2.1, 2.2 or 2.3(b), the Company will indemnify and
hold harmless each selling holder, its directors, officers, partners, employees,
representatives and affiliates, and each other person, if any, who controls such
holder within the meaning of the Securities Act (each an "Indemnified Person")
against any losses, claims, damages, liabilities and expenses (including
reasonable legal fees and expenses and costs of investigation), joint or
several, to which such Indemnified Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered or qualified under the Securities Act or otherwise,
any final prospectus or summary prospectus included therein, or any amendment or
supplement thereto, or any document incorporated by reference therein or
incident to any such registration or qualification, or (ii) 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, or (iii) any
violation or alleged violation by the Company of the Securities Act or any rule
or regulation promulgated thereunder and relating to action or inaction required
of the Company in connection with any such registration or qualification or
compliance thereunder; and the Company will reimburse each Indemnified Person
for any legal or any other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided that the Company shall not be liable to such Indemnified
Person for indemnification or reimbursement in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such final prospectus, summary prospectus, amendment
or supplement or any documents incorporated by reference in any of the above in
reliance upon and in conformity with written information furnished by such
Indemnified Person to the Company and designated in writing by such person to be
specifically for use in the preparation thereof, provided, further that the
Company shall not be liable to any Indemnified Person who participates as an
underwriter in the offering or sale of registrable stock or to any other
Indemnified Person, if any, who controls such underwriter within the meaning of
the Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof), or expense
arises out of such Indemnified Person's failure to send or give a copy of the
final prospectus, as the same
-15-
may be then supplemented or amended, to the person asserting the existence of an
untrue statement or alleged untrue statement or omission or alleged omission at
or prior to the written confirmation of the sale of registrable stock to such
person if such statement or omission was corrected in full in such final
prospectus. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Indemnified Person and shall
survive the transfer of such securities by such Indemnified Person.
(b) The Company may require, as a condition to including any
registrable stock in any registration statement filed pursuant to Section
2.3(a)(i), that the Company shall have received an undertaking satisfactory to
it from the holder of registrable stock included in such registration, to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in subsection (a) of this Section 2.5) the Company, each director of the
Company, each officer of the Company who shall sign such registration statement,
and each other person, if any, who controls the Company within the meaning of
the Securities Act, with respect to any statement in or omission from such
registration statement, any final prospectus or summary prospectus included
therein, or any amendment or supplement thereto or any documents incorporated by
reference in any of the above, if such statement or omission was made solely in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such holder stating that it is
specifically for use in the preparation of such registration statement, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any such director, officer or controlling person and
shall survive the transfer of registrable stock by such holder; provided,
however, that a holder's liability hereunder shall not exceed the aggregate net
proceeds received by such holder from the sale of its registrable stock in such
offering.
(c) If the indemnification provided for in this Section 2.5 is
unavailable or insufficient to hold harmless an indemnified party in respect of
any losses, claims, damages, liabilities, expenses or action in respect thereof
referred to herein, then the indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities, expenses or actions in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand, and the
indemnified party on the other, in connection with the statement or omission
which resulted in such losses, claims, damages, liabilities, expenses or actions
as well as any other relevant equitable considerations, including the failure to
give the notice required hereunder. The relative fault
-16-
of the indemnifying party and the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by the indemnifying party or
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the holders agree that it would not be just and equitable if
contributions pursuant to this Section were determined by pro rata allocation or
by any other method of allocation which did not take account the equitable
considerations referred to herein. The amount paid or payable to an indemnified
party as a result of the losses, claims, damages, liabilities or action in
respect thereof, referred to above, shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
contribution provisions of this Section, in no event shall the amount
contributed by any holder exceed the aggregate net offering proceeds received by
such holder from the sale of its registrable stock. No person guilty of
fraudulent misrepresentations (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
(d) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in this
Section 2.5, such indemnified party will give written notice to the latter of
the commencement of such action, provided that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its obligations under the preceding subsections of this Section 2.5, except
to the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an indemnified party,
the indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof; provided, however, that if the indemnified party or parties
reasonably determine that there may be a conflict between the positions of the
indemnifying party or parties and of the indemnified party or parties in
conducting the defense of such action or proceeding or that there may be legal
defenses available to such indemnified party or parties different from or in
addition to those available to the indemnifying party or parties, then counsel
for the indemnified party or parties shall be entitled to conduct the defense to
the extent reasonably determined by such
-17-
counsel to be necessary to protect the interests of the indemnified party or
parties (and the indemnifying party or parties shall bear the reasonable legal
and other expenses incurred in connection therewith). No indemnifying party
will, without the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement which does not include as a term thereof
the giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect of such claim or litigation. No indemnified party
shall consent to entry of any judgment or enter into any settlement of any such
action the defense of which has been assumed by an indemnifying party without
the prior consent of such indemnifying party.
(e) Indemnification (and, if appropriate, contribution) similar to
that specified in the preceding subsections of this Section 2.5 (with
appropriate modifications) shall be given by the Company and each holder of
registrable stock with respect to any required registration or other
qualification of such securities under any applicable federal securities law
(other than the Securities Act) or state securities or blue sky law or
regulation.
2.6. Form S-3 Registration. In case the Company shall receive from any
Holder or Holders who own at least ten percent (10%) of the Investor Registrable
Securities then outstanding a written request or requests that the Company
effect a registration on Form S-3 (or successor form) and any related
qualification or compliance with respect to all or a part of the Investor
Registrable Securities owned by such Holder or Holders, the Company will:
(a) Promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) As soon as practicable, use its best efforts to effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Investor Registrable Securities as are
specified in such request, together with all or such portion of the Investor
Registrable Securities of any other Holder or Holders joining in such request as
are specified in a written request given within thirty (30) days after receipt
of such written notice from the Company; provided, however, that the Company
shall not be obligated to effect any such registration, qualification or
compliance, pursuant to this Section 2.6: (i) if Form S-3 (or successor form) is
not available for such offering by the Holders, (ii) if the Holders, together
with any other holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Investor Registrable Securities
and other registrable stock (if any) at an aggregate price to the
-18-
public of less than $1,000,000, (iii) if the Company has, within the six (6)
month period preceding the date of such request, already effected a registration
on Form S-3 (or successor form) for the Holders pursuant to this Section 2.6 or
a registration pursuant to Sections 2.1, 2.2 or 2.3(b) in which Investor
Registrable Securities of such Holders were included, or (iv) in any particular
jurisdiction in which the Company would be required to qualify generally to do
business wherein it is not so qualified or to consent to general service of
process in any such jurisdiction in effecting such registration, qualification
or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Investor Registrable Securities and other registrable
stock pursuant to this Section 2.6 as soon as practicable after receipt of the
request or requests of the Holders. The Company shall use its reasonable best
efforts to keep such registration statement effective and comply with the
provisions of the Securities Act applicable to the Company with respect to the
disposition of all securities covered by such registration statement until all
the Investor Registrable Securities covered by such registration statement have
been sold.
(d) All Registration Expenses incurred in connection with the first
two (2) registrations requested pursuant to this Section 2.6 shall be borne by
the Company. After the first two (2) registrations, all such Expenses shall be
borne pro rata by the holders participating in the Form S-3 registration.
Registrations effected pursuant to this Section 2.6 shall not be counted as
demands for registration effected pursuant to Section 2.1.
2.7. Other Registrations. The Company hereby agrees that if it has
previously filed a registration statement with respect to registrable stock
pursuant to Section 2.2, and if such previous registration has not been
withdrawn or abandoned, the Company will not file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-4 or Form S-8 or any other similar form for employee
benefit plans), whether on its own behalf or at the request of any holder or
holders of such securities, until a period of at least six (6) months has
elapsed from the effective date of such previous registration or, if sooner,
until all registrable stock included in such previous registration have been
sold.
3. MISCELLANEOUS.
3.1 Rule 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the
-19-
requirements of the Securities Act, the Company will use its reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act (or, if the Company is not required to file such reports,
upon the request of any Holder, will use its reasonable best efforts to make
publicly available such information), and will take such further action as any
Holder may reasonably request, all to the extent required from time to time to
enable such Holder to sell Investor 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, or (b) any similar rule or regulation hereafter adopted by the Commission.
Upon the request of any Holder, the Company will deliver to such Holder (i) a
written statement as to whether it has complied with such requirements; (ii) if
applicable, a copy of the most recent annual or quarterly report of the Company;
and (iii) such other reports and documents as a Holder may reasonably request to
avail itself of Rule 144 or any other rule or regulation of the Commission
allowing a Holder to sell Common Stock without registration.
3.2. Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of: (i) in the event the amendment or waiver relates to
Section 2.1(b) or Section 2.6, the Company and the Holders of two-thirds (2/3)
or more of the Investor Registrable Securities then outstanding; (ii) in the
event the amendment or waiver relates to Section 2.1(a), the Company and the
holders of a majority of the Investor Registrable Securities, the OCR
Registrable Securities and the Other Registrable Securities; and (iii) in all
other events, the Company and the holders of a majority of the registrable stock
then outstanding. For purposes of this Section 3.2, "registrable stock then
outstanding" shall be the number of shares of Common Stock outstanding which are
registrable stock, and the number of shares of Common Stock which would be
registrable stock upon conversion or exercise of, or in exchange for, any
registrable stock. Each holder shall be bound by any consent authorized by this
Section 3.2.
3.3. Assignment of Investors' Registration Rights. The rights to cause the
Company to register Investor Registrable Securities pursuant to this Agreement
may be assigned by a Holder to a transferee or assignee ("Transferee") of such
securities in accordance with the terms of the Stockholders' Agreement who,
after such assignment or transfer, holds at least 250,000 shares of Investor
Registrable Securities (subject to appropriate adjustments for stock splits,
stock dividends, combinations and other recapitalizations), provided that the
250,000 share threshold
-20-
referenced above shall not apply to transfers to Permitted Transferees as
defined in the Stockholders' Agreement; provided further that all such assignees
and transferees who do not meet the 250,000 share threshold shall appoint a
single Holder as their attorney-in-fact for the purpose of exercising any
rights, receiving notices or taking any action under this Agreement. No transfer
of Investor Registrable Securities by a Holder shall be effective unless the
Transferee shall have executed a counterpart to this Agreement, as amended or
supplemented.
3.4. Limitations on Subsequent Registration Rights. From and after the
date of this Agreement, the Company shall not enter into any agreement with any
person or entity holding or proposing to hold any securities of the Company
which would provide such person or entity with registration rights more
favorable than the rights granted to the holders under this Agreement, in any
case, without the written consent of the holders of a majority of the
registrable stock entitled to the type of registration rights to be provided to
such person or entity.
3.5. Specific Performance. Inasmuch as the shares of capital stock of the
Company are closely held and the market therefor is limited, irreparable damage
would result if this Agreement were not specifically enforced. Therefore, the
rights granted to holders hereunder shall be enforceable in a court of equity by
a decree of specific performance, and appropriate injunctive relief may be
applied for and granted in connection therewith. Such remedies shall, however,
be cumulative and not exclusive and shall be in addition to any other remedies
which any party may have under this Agreement or otherwise.
3.6. Notices. Except as otherwise provided in this Agreement, notices and
other communications under this Agreement shall be in writing and shall be
delivered, if to the Company, a Principal Stockholder or an Investor, to such
party in the manner set forth in the Stockholders' Agreement, or if to any other
party, to such party at the address specified below its name on the signature
pages hereof, or in any case at such other address as such party shall have
furnished to the Company in writing (or in the case of the Company, at such
other address, or to the attention of such other officer, as the Company shall
have furnished to each holder).
3.7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
permitted assigns of the parties hereto.
3.8. Entire Agreement. This Agreement embodies the entire agreement and
understanding between each holder and the Company and supersedes all prior
agreements and understandings relating to the subject matter hereof.
-21-
3.9. Termination. This Agreement shall terminate as to any stockholder who
is a party to this Agreement on the date that such stockholder is entitled to
sell all of the registrable stock then beneficially owned by such stockholder
pursuant to the terms of Rule 144(k) under the Securities Act (or successor
thereto), and shall survive the earlier termination of the Stockholders'
Agreement, provided that any indemnification obligations hereunder shall survive
the termination of this Agreement.
3.10. Gender; Number. Unless the context of this Agreement otherwise
requires, the masculine, feminine or neuter gender shall include the other
genders, and the singular shall include the plural.
3.11. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the law of the State of Delaware (excluding
choice of law provisions thereof).
3.12. Headings. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
3.13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-22-
IN WITNESS WHEREOF, the parties hereto have executed or caused to be duly
executed this Agreement on the date first written above.
VITAS HEALTHCARE CORPORATION
By: /s/ [ILLEGIBLE]
----------------------------------------
President
/s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
XXXX X. XXXXXXXXX
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
XXXXXX X. XXXXXXXXX
/s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------------------
XXXXXX X. XXXXXXXXXXX
/s/ Xxxxxx Xxxxx
--------------------------------------------
XXXXXX XXXXX
Address: 000 Xxxx Xxxxxxxxxxxxxx
Xxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
/s/ Xxxx X. Xxxxxxx, Xx.
--------------------------------------------
XXXX X. XXXXXXX, XX.
Address: c/o Vitas Healthcare Corporation
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
-23-
/s/ X.X. Xxxxxxxx
--------------------------------------------
X.X. XXXXXXXX
Address: c/o Vitas Healthcare Corporation
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
VITAS HEALTHCARE CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN/TRUST
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxxx, Trustee
Address: c/o Vitas Healthcare Corporation
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
OCR HOLDING COMPANY
By:
----------------------------------------
Treasurer
Address: x/x Xxxxxx Xxxxxxxxxxx
0000 Xxxxxx Xxxxxx
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxx, XX 00000
With a copy (which shall not constitute
notice) to:
Xxxxxxxx & Shohl
0000 Xxxxxx Xxxxxx
Xxxxx 00
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxx, Xx., Esq.
-24-
----------------------------------------
X.X. XXXXXXXX
Address: c/o Vitas Healthcare Corporation
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
VITAS HEALTHCARE CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN/TRUST
By:
----------------------------------------
Xxxx X. Xxxxxxxxx, Trustee
Address: c/o Vitas Healthcare Corporation
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
OCR HOLDING COMPANY
By: /s/ Xxxxxxx X. X'Xxxxx
----------------------------------------
Treasurer
Address: x/x Xxxxxx Xxxxxxxxxxx
0000 Xxxxxx Xxxxxx
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxx, XX 00000
With a copy (which shall not constitute
notice) to:
Xxxxxxxx & Shohl
0000 Xxxxxx Xxxxxx
Xxxxx 00
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxx, Xx., Esq.
-24-
CHEMED CORPORATION
By: /s/ Xxxxxxx X. X'Xxxxx
----------------------------------------
Executive VP & Treasurer
Address: 2600 Chemed Center
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxx, XX 00000
XXXXX PARTNERS, II, L.P.
By: GWW Partners, L.P.,
its General Partner
By:
----------------------------------------
General Partner
XXXXX PARTNERS INTERNATIONAL,
II, L.P.
By: GWW Partners, L.P.,
its General Partner
By:
----------------------------------------
General Partner
-25-
CHEMED CORPORATION
By:
----------------------------------------
President
Address: 2600 Chemed Center
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxx, XX 00000
XXXXX PARTNERS, II, L.P.
By: GWW Partners, L.P.,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
General Partner
XXXXX PARTNERS INTERNATIONAL,
II, L.P.
By: GWW Partners, L.P.,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
General Partner
-25-
XXXXX ASSOCIATES
By: Wesson Enterprises, Inc., a
General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
President
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg Pincus & Co.,
its General Partner
By:
----------------------------------------
Partner
HARVEST PARTNERS INTERNATIONAL, L.P.
By: Harvest Associates International,
L.P.,
its General Partner
By:
----------------------------------------
General Partner
DEUTSCHE BETEILIGUNGSGESELLSCHAFT
By:
----------------------------------------
Managing Director
-26-
XXXXX ASSOCIATES
By: Wesson Enterprises, Inc., a
General Partner
By:
----------------------------------------
President
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg Pincus & Co.,
its General Partner
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------------
Partner
HARVEST PARTNERS INTERNATIONAL, L.P.
By: Harvest Associates International,
L.P.,
its General Partner
By:
----------------------------------------
General Partner
DEUTSCHE BETEILIGUNGSGESELLSCHAFT
By:
----------------------------------------
Managing Director
-26-
XXXXX ASSOCIATES
By: Wesson Enterprises, Inc., a
General Partner
By:
----------------------------------------
President
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg Pincus & Co.,
its General Partner
By:
----------------------------------------
Partner
HARVEST PARTNERS INTERNATIONAL, L.P.
By: Harvest Associates International,
L.P.,
its General Partner
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------------
General Partner
DEUTSCHE BETEILIGUNGSGESELLSCHAFT
By:
----------------------------------------
Managing Director
-26-
XXXXX ASSOCIATES
By: Wesson Enterprises, Inc., a
General Partner
By:
----------------------------------------
President
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg Pincus & Co.,
its General Partner
By:
----------------------------------------
Partner
HARVEST PARTNERS INTERNATIONAL, L.P.
By: Harvest Associates International,
L.P.,
its General Partner
By:
----------------------------------------
General Partner
DEUTSCHE BETEILIGUNGSGESELLSCHAFT
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------------
Managing Director
-26-
FRANKLIN CAPITAL ASSOCIATES II L.P.
By: Franklin Ventures II L.P.,
its General Partner
By: Franklin Venture Capital Inc.,
its General Partner
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------------
Vice President
HLM PARTNERS II L.P.
By: HLM Associates II, L.P.,
its General Partner
By:
----------------------------------------
General Partner
THE XXXXXXXX INVESTMENT TRUST
By:
----------------------------------------
Xxxxx Xxxxxxxx, Trustee
--------------------------------------------
XXXXXX X. XXX, XX.
--------------------------------------------
XXXXX XXXXXX
-27-
FRANKLIN CAPITAL ASSOCIATES II L.P.
By: Franklin Ventures II L.P.,
its General Partner
By: Franklin Venture Capital Inc.,
its General Partner
By:
----------------------------------------
President
HLM PARTNERS II L.P.
By: HLM Associates II, L.P.,
its General Partner
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------------
General Partner
THE XXXXXXXX INVESTMENT TRUST
By:
----------------------------------------
Xxxxx Xxxxxxxx, Trustee
--------------------------------------------
XXXXXX X. XXX, XX.
--------------------------------------------
XXXXX XXXXXX
-27-
FRANKLIN CAPITAL ASSOCIATES II L.P.
By: Franklin Ventures II L.P.,
its General Partner
By: Franklin Venture Capital Inc.,
its General Partner
By:
----------------------------------------
President
HLM PARTNERS II L.P.
By: HLM Associates II, L.P.,
its General Partner
By:
----------------------------------------
General Partner
THE XXXXXXXX INVESTMENT TRUST
By: /s/ Xxxxx Xxxxxxxx, Trustee
----------------------------------------
Xxxxx Xxxxxxxx, Trustee
--------------------------------------------
XXXXXX X. XXX, XX.
--------------------------------------------
XXXXX XXXXXX
-27-
FRANKLIN CAPITAL ASSOCIATES II L.P.
By: Franklin Ventures II L.P.,
its General Partner
By: Franklin Venture Capital Inc.,
its General Partner
By:
----------------------------------------
President
HLM PARTNERS II L.P.
By: HLM Associates II, L.P.,
its General Partner
By:
----------------------------------------
General Partner
THE XXXXXXXX INVESTMENT TRUST
By:
----------------------------------------
Xxxxx Xxxxxxxx, Trustee
/s/ XXXXXX X. XXX, XX.
--------------------------------------------
XXXXXX X. XXX, XX.
--------------------------------------------
XXXXX XXXXXX
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FRANKLIN CAPITAL ASSOCIATES II L.P.
By: Franklin Ventures II L.P.,
its General Partner
By: Franklin Venture Capital Inc.,
its General Partner
By:
----------------------------------------
President
HLM PARTNERS II L.P.
By: HLM Associates II, L.P.,
its General Partner
By:
----------------------------------------
General Partner
THE XXXXXXXX INVESTMENT TRUST
By:
----------------------------------------
Xxxxx Xxxxxxxx, Trustee
--------------------------------------------
XXXXXX X. XXX, XX.
/s/ XXXXX XXXXXX
--------------------------------------------
XXXXX XXXXXX
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SCHEDULE A
STOCKHOLDERS
Xxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxxxx
Xxxxxx Xxxxx
Xxxx Xxxxxxx
X.X. Xxxxxxxx
Vitas Healthcare Corporation
Employee Stock Ownership Plan/Trust
OCR Holding Company
Number of Shares of
Investors Preferred Stock
--------- -------------------
Xxxxx Partners II, L.P. 81,391
Xxxxx Partners International II, L.P. 18,314
Xxxxx Associates 295
Warburg, Xxxxxx Investors, L.P. 100,000
Harvest Partners International, L.P. 12,500
Deutsche Beteiligungsgesellschaft 22,500
Franklin Capital Associates II L.P. 11,250
HLM Partners II L.P. 10,000
The Xxxxxxxx Investment Trust 3,750
Xxxxxx X. Xxx, Xx. 2,000
Xxxxx Xxxxxx 500
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