Exhibit 10.78
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 24, 2005, between
SELECT MEDICAL HOLDINGS CORPORATION (formerly known as EGL Holding Company), a
Delaware corporation (the "Company"), WCAS CAPITAL PARTNERS IV, L.P. ("WCAS XX
XX"), XXXXX X. XXXXXXXX, XXXXXX X. XXXXXXXX, XXXX X. XXXXXXXX, XXXXXX X.
XXXXXXXX, XXXXXX X. XXXXXXXX DESENDANTS TRUST and XXXXXXXX FAMILY FOUNDATION
(each a "Purchaser" and collectively the "Purchasers").
W I T N E S S E T H:
WHEREAS, on October 17, 2004, the Company and its wholly-owned
subsidiary EGL Acquisition Corp. ("Acquisition") entered into an Agreement and
Plan of Merger with Select Medical Corporation, a Delaware corporation ("SEM"),
pursuant to which the Company agreed to acquire SEM by means of a merger of
Acquisition with and into SEM with SEM as the surviving corporation (the
"Merger");
WHEREAS, in order to provide a portion of the financing needed to
consummate the Merger and the other transactions related thereto and to pay
related fees and expenses, the Company and the Purchasers are entering into a
Securities Purchase Agreement, dated as of the date hereof (the "Securities
Purchase Agreement") pursuant to which the Purchasers are collectively acquiring
senior subordinated notes of the Company due 2015 in an aggregate principal
amount of $150,000,000 (the "Notes");
WHEREAS, it is a condition to the obligation of each such Purchaser
to purchase its Note under the Securities Purchase Agreement that the Company
shall have executed and delivered this Agreement; and
WHEREAS, in order to fulfill such condition, the Company wishes to
execute and deliver this Agreement and grant to the Purchaser the registration
rights set forth herein with respect to the Registrable Securities (as defined
below) from time to time held by the Purchaser;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings set forth below:
"Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, as the same may be amended from time to time.
"Registrable Securities" means, at any time, the Notes as originally
issued and any note or other debt security of the Company that is issued
upon exchange or transfer thereof including pursuant to Section 5 hereof.
As to any particular Registrable Security, such security shall cease to be
a Registrable Security (i) when a registration statement with respect to
the sale of such security shall have been declared effective under the
Securities Act and such security shall have been disposed of in accordance
with such registration statement or (ii) when such security shall have
been sold (other than in a privately negotiated sale) pursuant to Rule 144
(or any successor provision) under the Securities Act.
"Securities Act" means the Securities Act of 1933, or any successor
federal statute, and the rules and regulations of the Commission
thereunder, as the same may be amended from time to time.
SECTION 2. Registration Rights.
(a) Registration of Registrable Securities. If the Company shall
at any time on or after the date hereof be requested by WCAS XX XX, on behalf of
itself and the other Purchasers, in a writing that states the intended method of
disposition thereof, to effect a registration under the Securities Act of all or
any portion of the Registrable Securities then held by the Purchasers, the
Company shall use its commercially reasonable efforts to register under the
Securities Act, for public sale in accordance with the method of disposition
specified in such request, the Registrable Securities specified in such request.
In the event that the proposed method of disposition specified by WCAS XX XX
shall be an underwritten public offering, the managing underwriter shall be
selected by WCAS XX XX. The Company shall abandon any registration so requested
by WCAS XX XX upon the written request of WCAS XX XX.
(b) Certain Provisions Relating to Registrations. In connection
with a registration of Registrable Securities pursuant to Section 2(a), the
Company shall be obligated to effect such registration in accordance with the
following provisions:
(i) the obligations of the Company under Section 2(a) above to
effect a registration shall be deemed satisfied only when a registration
statement covering all of the Registrable Securities specified in the
applicable request from WCAS XX XX shall have become effective and
remained effective through the end of the period of distribution of the
registration contemplated thereby (determined as provided in the last
paragraph of Section 2(c)); and
(ii) the Company will not effect any other registration of any of
its debt securities, whether for its own account or that of other holders,
from the date of receipt of a request by WCAS XX XX under Section 2(a)
until the completion of the period of distribution of the registration
contemplated thereby (determined as provided in the last paragraph of
Section 2(c)).
(c) Certain Registration Procedures. If and whenever the Company
is required by the provisions of this Section 2 to use its commercially
reasonable efforts to effect
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the registration of Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible:
(i) prepare (and afford counsel, selected by WCAS XX XX to
represent the Purchasers ("Purchasers' Counsel"), reasonable opportunity
to review and comment thereon) and file with the Commission a registration
statement with respect to such securities and use its commercially
reasonable efforts to cause such registration statement to become and
remain effective through the end of the period of distribution
contemplated thereby (determined as provided in the last paragraph of
Section 2(c));
(ii) prepare (and afford Purchasers' Counsel reasonable opportunity
to review and comment thereon) 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 through the end of the period of
distribution contemplated thereby (determined as provided in the last
paragraph of Section 2(c)) and comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Securities covered by such registration statement in accordance with the
selling Purchasers' intended method of disposition set forth in such
registration statement through the end of such period of distribution;
(iii) furnish to each selling Purchaser and to each underwriter such
number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons may
reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such registration
statement;
(iv) use its commercially reasonable efforts to register or qualify
the Registrable Securities covered by such registration statement under
the securities or blue sky laws of such jurisdictions as WCAS XX XX,
Purchasers' Counsel or, in the case of an underwritten public offering,
the managing underwriter, shall reasonably request; provided, that the
Company will not be required to (x) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but
for this Section 2(c)(iv), (y) subject itself to taxation in any such
jurisdiction in which it would not otherwise be subject to taxation but
for this Section 2(c)(iv) or (z) consent to general service of process in
any jurisdiction in which it would not otherwise be subject to general
service of process but for this Section 2(c)(iv);
(v) immediately notify each selling Purchaser under such
registration statement and each underwriter, 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 contained
in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing (and upon receipt
of any such notice, each selling Purchaser agrees to suspend sales of
Registrable Securities covered by such prospectus until such time as the
Company notifies it that the prospectus (as supplemented or amended) no
longer includes any untrue statement of a material fact or omits to state
any material fact
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required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing);
(vi) use its commercially reasonable efforts (if the offering is
underwritten) to furnish, at the request of WCAS XX XX or Purchasers'
Counsel, on the date that Registrable Securities are delivered to the
underwriters for sale pursuant to such registration: (A) an opinion dated
such date of counsel representing the Company for the purposes of such
registration, addressed to the underwriters and to each selling Purchaser,
stating that such registration statement has become effective under the
Securities Act and that (1) to the best knowledge of such counsel, no stop
order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (2) the registration statement, the
related prospectus, and each amendment or supplement thereof, comply as to
form in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder
(except that such counsel need express no opinion as to financial
statements, the notes thereto, and the financial schedules and other
financial and statistical data contained therein) and (3) to such other
effects as may reasonably be requested by counsel for the underwriters or
by WCAS XX XX or Purchasers' Counsel, and (B) a letter dated such date
from the independent public accountants retained by the Company, addressed
to the underwriters, stating that they are independent public accountants
within the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of
such letter) with respect to the registration in respect of which such
letter is being given as such underwriters, WCAS XX XX or Purchasers'
Counsel may reasonably request; and
(vii) make available for inspection by WCAS XX XX, any underwriter
participating in any distribution pursuant to such registration statement,
Purchasers' Counsel and any accountant or other agent retained by WCAS XX
XX or such underwriters, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by WCAS XX XX, Purchasers' Counsel or any of such underwriters,
attorneys, accountants or agents in connection with such registration
statement and permit WCAS XX XX, Purchasers' Counsel and such
underwriters, attorneys, accountants or agents to participate in the
preparation of such registration statement.
For purposes of Sections 2(b), 2(c)(i) and 2(c)(ii) above, the "period of
distribution" of Registrable Securities in an underwritten public offering shall
be deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Registrable
Securities in any other registration shall be deemed to extend until the sale of
all Registrable Securities covered thereby.
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(d) Information From Selling Purchasers. In connection with each
registration hereunder, Purchasers selling Registrable Securities will furnish
to the Company in writing such information with respect to themselves and the
proposed distribution by them as shall be reasonably necessary in order to
assure compliance with federal and applicable state securities laws.
(e) Underwriting Agreement. In connection with any registration
pursuant to this Section 2 that covers an underwritten public offering, the
Company and Purchasers selling Registrable Securities each agree to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between major underwriters, selling
securityholders and a company of the Company's size and investment stature;
provided, that such agreement shall be satisfactory to WCAS XX XX.
(f) Expenses. The Company will pay all Registration Expenses (as
defined below) incurred in complying with Section 2 of this Agreement. All
Selling Expenses (as defined below) incurred in connection with any registered
offering of securities that, pursuant to this Section 2, includes Registrable
Securities, shall be borne by the participating sellers in proportion to the
number of securities sold by each. All expenses incident to performance of or
compliance by the Company with Section 2 hereof, including, without limitation,
all Commission, stock exchange, Nasdaq or National Association of Securities
Dealers, Inc. ("NASD") registration and filing fees (including, without
limitation, fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange or exchanges or Nasdaq),
printing, distribution and related expenses, fees and disbursements of counsel
and independent public accountants for the Company, all reasonable fees and
disbursements of one firm counsel for WCAS XX XX, all fees and expenses incurred
in connection with compliance with state securities or blue sky laws and the
rules of the NASD or any securities exchange, transfer taxes and fees of
transfer agents and registrars, but excluding any Selling Expenses, are herein
called "Registration Expenses". All underwriting discounts and selling
commissions applicable to the sale of Registrable Securities are herein called
"Selling Expenses".
(g) Suspension. The Company shall be entitled to suspend the
rights of selling Purchasers to make sales pursuant to a registration statement
otherwise required to be kept effective hereunder if the Company determines in
good faith that there exists a material proposed transaction (including any
proposed acquisition or disposition) that would be required to be disclosed in
such registration statement and the disclosure of which would either have a
material adverse effect on such material proposed transaction or the Company;
provided, that such delay shall not continue beyond the earlier of (A) the date
upon which such material information is otherwise disclosed to the public or
ceases to be material and (B) 90 days after the Company effects such suspension.
SECTION 3. Indemnification Rights and Obligations In Respect of
Registered Offerings of Registrable Securities.
(a) Company Indemnification of Selling Purchasers. In the event of
a registration of any of the Registrable Securities under the Securities Act
pursuant to Section 2 of
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this Agreement, the Company will indemnify and hold harmless each seller of
Registrable Securities thereunder and each other person, if any, who controls
such seller within the meaning of the Securities Act and each underwriter and
each person who controls any underwriter within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, (or
actions in respect thereof) to which such seller, underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
Registrable Securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, that the
Company will not be liable in any such case if and to the extent that any such
loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by such seller, such underwriter
or such controlling person in writing specifically for use in such registration
statement or prospectus; provided, further, that the indemnity agreement
contained in this Section 3(a) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld).
(b) Selling Purchaser Indemnification of the Company. In the event
of a registration of any of the Registrable Securities under the Securities Act
pursuant to Section 2 of this Agreement, each seller of such Registrable
Securities thereunder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
and each other seller of Registrable Securities and each person who controls any
such other seller of Registrable Securities, against all losses, claims, damages
or liabilities, joint or several, (or actions in respect thereof) to which the
Company or such officer or director or underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Registrable
Securities were registered under the Securities Act, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and each such
officer, director, underwriter, other seller of Registrable Securities and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, that such seller will be liable hereunder in any
such case if and only to the extent that any such loss, claim, damage, liability
or action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance
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upon and in conformity with information pertaining to such seller, as such,
furnished in writing to the Company by such seller specifically for use in such
registration statement or prospectus; provided, further, that the liability of
each seller hereunder shall be limited to the proceeds (net of underwriting
discounts and commissions) received by such seller from the sale of Registrable
Securities covered by such registration statement; provided, further, that the
indemnity agreement contained in this Section 3(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of such seller of Registrable
Securities (which consent shall not be unreasonably withheld).
(c) Indemnification Procedures. Promptly after receipt by an
indemnified party hereunder of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party in writing thereof,
but the omission so to promptly notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party other than
under this Section 3. In case any such action shall be brought against any
indemnified party and it shall promptly notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate in
and, to the extent it shall wish, to assume and undertake the defense thereof
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 and undertake the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 3 for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation and of liaison with counsel
so selected; provided, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party, or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
reasonable expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have the right to
retain its own counsel in any such action, but the fees and disbursements of
such counsel shall be at the expense of such indemnified party; provided that
such fees and expenses shall be at the expense of the indemnifying party if (i)
the indemnifying party shall have failed to retain counsel for the indemnified
person as aforesaid or (ii) the indemnifying party and such indemnified party
shall have mutually agreed to the retention of such counsel. It is understood
that the indemnifying party shall not, in connection with any action or related
actions in the same jurisdiction, be liable for the fees and disbursements of
more than one separate firm qualified in such jurisdiction to act as counsel for
the indemnified party. No indemnifying party, in the defense of any such claim
or litigation, shall, except with the consent of such indemnified party, which
consent shall not be unreasonably withheld, consent to entry of any judgment or
enter into any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity was
sought hereunder by such indemnified party unless such judgment or settlement
includes as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation. The indemnification of underwriters provided for in
this Section 3 shall be on such other terms and
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conditions as are at the time customary and reasonably required by such
underwriters as provided in Section 2(e).
(d) Contribution. If the indemnification provided for in Sections
3(a) and 3(b) above is unavailable or insufficient to hold harmless an
indemnified party under such Sections in respect of any losses, claims, damages
or liabilities or actions in respect thereof referred to therein, then each
indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the underwriters or the sellers of such Registrable Securities, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including, without limitation, the failure to give any notice
under Section 3(c) above. The relative fault 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 Company, on the one hand,
or the underwriters or the sellers of such Registrable Securities, on the other,
and to the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each of the Purchasers agrees that it would not be just and equitable if
contributions pursuant to this Section were determined by pro rata allocation
(even if all of the sellers of such Registrable Securities were treated as one
entity for such purpose) or by any other method of allocation which did not take
account of the equitable considerations referred to above in this Section. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or action in respect thereof, referred to above in
this Section, 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 provisions of this Section, the
sellers of such Registrable Securities shall not be required to contribute any
amount in excess of the amount, if any, by which the total price at which the
Registrable Securities sold by each of them were offered to the public exceeds
the amount of any damages which they are otherwise required to pay by reason of
such untrue or alleged untrue statement or 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 is not
guilty of such fraudulent misrepresentation.
SECTION 4. Duration of Agreement. This Agreement shall survive until
the repayment in full of all debt securities of the Company that constitute
Registrable Securities.
SECTION 5. Exchange. The Company hereby agrees with each Purchaser
that, if requested by WCAS XX XX, on behalf of the itself and the other
Purchasers, in connection with any proposed registration of Registrable
Securities under Section 2(a), the Company shall (i) allow WCAS XX XX to
exchange its Note (or any note in substantially the form thereof that was issued
in exchange ~herefore or upon transfer thereof) for newly issued debt securities
of the Company having customary terms for publicly traded debt securities, (ii)
enter into any indentures or other agreements on customary terms if reasonably
requested by WCAS XX XX in connection with any such exchange and (iii) use its
best efforts to obtain any consents and approvals that are necessary to effect
the foregoing.
SECTION 6. Miscellaneous.
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(a) Additional Registration Rights. Without the consent of WCAS XX
XX, the Company shall not grant any registration rights to any other person that
are inconsistent or conflict with the registration rights granted hereunder.
(b) Headings. Headings of sections of this Agreement are inserted
for convenience of reference only and shall not affect the interpretation
hereof.
(c) Severability. Each provision of this Agreement shall be
treated as a separate and independent clause, and the unenforceability of any
one clause shall in no way impair the enforceability of any of the other clauses
contained herein. If one or more of the provisions contained in this Agreement
shall for any reason be held to be unenforceable, such provision or provisions
shall be construed by the appropriate judicial body by limiting or reducing it
or them, so as to be enforceable to the maximum extent compatible with
applicable law, and no other provision hereof shall be affected by such holding,
limitation or reduction.
(d) Benefits of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns and nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto,
their respective successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement. The rights and
obligations of the parties hereto shall not be assigned without the consent of
WCAS XX XX, in the case of any assignment by the Company, or the Company, in the
case of any assignment by any Purchaser, and any attempted assignment in
violation of this Section 6(d) shall be null and void; provided, that any
Purchaser's rights hereunder are assignable to a transferee in connection with
any transfer of Registrable Securities so long as (i) such transferee expressly
agrees to become bound hereby as a "Purchaser" hereunder pursuant to a written
instrument in form and substance reasonably satisfactory to the Company and (ii)
notice of such transfer is given to the Company and WCAS XX XX.
(e) Entire Agreement; Modification. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supercedes all prior agreements and understandings, oral and written, between
the parties hereto with respect to the subject matter hereof. This Agreement may
not be modified or amended except by a writing signed by the Company and WCAS XX
XX; provided, that no provision of this Agreement may be modified or amended in
a manner materially adverse to a Purchaser, other than WCAS XX XX (in its
capacity as a Purchaser hereunder), if such modification or amendment affects
such Purchaser disproportionately relative to the other Purchasers, except with
the written consent of such Purchaser; provided, further, that, notwithstanding
the foregoing, upon the written agreement of only the Company and WCAS XX XX,
additional Purchasers may be added to this Agreement. Except as otherwise
provided herein, any waiver of any provision of this Agreement must be in a
writing signed by the party against whom enforcement of such waiver is sought.
(f) Notices. All notices, requests, instructions and other
documents that are required to be or may be given or delivered pursuant to the
terms of this Agreement shall be in writing and shall be sufficient in all
respects if delivered by hand or national overnight courier service, transmitted
by facsimile (subject to electronic confirmation of such facsimile transmission)
or mailed by registered or certified mail, postage prepaid, as follows:
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If to the Company, to it at:
0000 Xxx Xxxxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: President
with a copy to:
Welsh, Carson, Xxxxxxxx & Xxxxx IX, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to WCAS Capital Partners IV, L.P., to it:
x/x Xxxxx, Xxxxxx, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Facsimile: (000) 000-0000
with a copy to:
Ropes & Xxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to any Purchaser, to such Purchaser at its address set forth on
Schedule I hereto, as the case may be;
or such other address or addresses as any party hereto shall have designated by
notice in writing to the other parties hereto. Such notices, requests,
instructions and other documents shall be deemed given or delivered (i) five
business days following sending by registered or certified mail, postage
prepaid, (ii) one business day following sending by national overnight courier
service, (iii) the day of sending, if sent by facsimile prior to 5:00 p.m. (EST)
on any business day or the next succeeding business day if sent by facsimile
after 5:00 p.m. (EST) on any business day or on any day other than a business
day or (iv) when delivered, if delivered by hand.
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(g) 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. Any or all such
counterparts may be executed by facsimile.
(h) Specific Performance. Each party hereto agrees that a remedy
at law for any breach or threatened breach by such party of this Agreement would
be inadequate and therefore agrees that any other party hereto shall be entitled
to specific performance of this Agreement in addition to any other available
rights and remedies in case of any such breach or threatened breach.
(i) Governing Law. This Agreement and all disputes arising out of
or relating to this Agreement, its subject matter, the performance by the
parties of their respective obligations hereunder or the claimed breach hereof,
whether in tort, contract or otherwise, shall be governed by and construed in
accordance with the internal laws of the State of New York.
(j) Interpretation. As used herein, the words "hereof", "herein",
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and the word "Section" refers to a Section of this
Agreement unless otherwise specified. Whenever the words "include", "includes"
or "including" are used in this Agreement they shall be deemed to be followed by
the words "without limitation". The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
[SIGNATURE PAGES FOLLOW]
11
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the day and year first above written.
Company:
SELECT MEDICAL HOLDINGS CORPORATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
The Purchasers:
WCAS CAPITAL PARTNERS IV, L.P.
By: WCAS XX XX Associates LLC
Its General Partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Member
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Signature Page for Debt Registration Rights Agreement
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Signature Page for Debt Registration Rights Agreement
XXXXXX X. XXXXXXXX DESENDANTS TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
XXXXXXXX FAMILY FOUNDATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
Signature Page for Debt Registration Rights Agreement
Schedule I
Purchaser Notice Information
--------- ------------------
WCAS Capital Partners IV, L.P. c/o Welsh, Carson, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxxxx c/o Select Medical Corporation
0000 Xxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxxxxx c/o Select Medical Corporation
0000 Xxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxx X. Xxxxxxxx c/o Select Medical Corporation
0000 Xxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxxxxx c/o Select Medical Corporation
0000 Xxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxxxxx Descendants Trust c/o Select Medical Corporation
0000 Xxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxxxx Family Foundation c/o Select Medical Corporation
0000 Xxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
