EXHIBIT III
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
April 20, 2001, by and among Vencor, Inc. (to be renamed Kindred
Healthcare, Inc.), a Delaware corporation (the "Company") and the Persons
identified on Schedule 1 hereto (the "Initial Holders").
RECITALS
A. Pursuant to the Company's Fourth Amended and Restated Plan of
Reorganization dated as of December 14, 2000 (the "Plan"), upon
satisfaction of certain conditions, the Company will issue New Common Stock
and/or New Warrants (both as defined in the Plan) to the Initial Holders in
the amounts set forth on Schedule 1 hereto.
B. In order to induce the Initial Holders to agree to the Plan,
the Company has agreed to grant certain securities registration rights to
the Initial Holders as set forth herein.
AGREEMENTS
In consideration of the premises and the mutual covenants herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Definitions and General Interpretive Principles. In addition
to the defined terms set forth in the Plan that are not otherwise defined
herein (which shall have the same meanings herein as in the Plan) and to
the capitalized terms defined elsewhere in this Agreement, the following
capitalized terms shall have the following meanings when used in this
Agreement:
"Adverse Disclosure" means public disclosure of material
non-public information, which disclosure in the good faith judgment of the
chief executive officer or chief financial officer of the Company (i) would
be required to be made in any registration statement filed with the
Commission by the Company so that such registration statement would not be
materially misleading; (ii) would not be required to be made at such time
but for the filing of such registration statement; and (iii) the Company
has a bona fide business purpose for avoiding.
"Allocation Percentage" has the meaning set forth in Section
3(e).
"Commission" means the U.S. Securities and Exchange Commission
and any agency succeeding to its functions.
"Demand Registration" has the meaning set forth in Section 3(a).
"Demand Suspension" has the meaning set forth in Section 3(c).
"Expiration Time" means the earlier of (i) April 20, 2003 (the
second anniversary of the Effective Date); provided, however, that the
rights and obligations relating to Piggyback Registrations contained in
Section 4 and Demand Registrations solely as they relate to a Ventas
Stockholder Distribution contained in Section 3 (and the provisions of this
Agreement specifically related thereto) shall continue until April 20, 2005
(the fourth anniversary of the Effective Date) and (ii) the first time at
which there are no Holders.
"Holder" means an Initial Holder or a successor, assignee or
transferee of an Initial Holder as contemplated by Section 13 hereof, in
each case for so long as such Initial Holder, successor, assignee or
transferee holds Registrable Securities.
"Included Registrable Securities" has the meaning set forth in
Section 4(a).
"Indemnified Party" has the meaning set forth in Section 8(c).
"Indemnifying Party" has the meaning set forth in Section 8(c).
"Loss" has the meaning set forth in Section 8(a).
"NASD" means the National Association of Securities Dealers, Inc.
"New Warrant Stock" means any New Common Stock or other security
of the Company or any successor entity issued or issuable upon exercise of
any New Warrant.
"Participant" has the meaning set forth in Section 8(a).
"Person" means a natural person, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust,
a joint venture, an unincorporated organization or other entity, or a
governmental entity or any department, agency or political subdivision
thereof.
"Piggyback Registration" has the meaning set forth in Section
4(a).
"Registrable Securities" means (i) the New Common Stock, (ii) the
New Warrants and (iii) the New Warrant Stock issuable upon exercise of the
New Warrants, in each case including any securities of the Company or any
successor entity that may be issued or distributed in respect thereof by
way of stock dividend, stock split or other distribution, consolidation,
reclassification or any similar transaction; provided, however, that the
foregoing securities shall cease to be "Registrable Securities" to the
extent that (i) a registration statement with respect to the sale of such
securities has been declared effective under the Securities Act and such
securities have been disposed of pursuant to such registration statement,
(ii) such securities have been disposed of pursuant to and in accordance
with Rule 144 (or any similar provision then in force) under the Securities
Act or (iii) such securities may be disposed of pursuant to Rule 144(k) (or
any similar provision then in force) under the Securities Act. For purposes
of this Agreement, any reference to a percentage (or a majority in number)
of Registrable Securities shall mean that percentage of Registrable
Securities, collectively, computed on the assumption that all such New
Warrants were exercised.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Shelf Period" has the meaning set forth in Section 2(b).
"Shelf Registration" means a registration effected pursuant to
Section 2.
"Shelf Registration Statement" means a registration statement of
the Company filed with the Commission on Form S-1 or, if available, Form
S-3 (or any successors thereto) for an offering to be made on a continuous
or delayed basis pursuant to Rule 415 under the Securities Act (or any
similar rule that may be adopted by the Commission) covering all of the
Registrable Securities requested to be included by the Initial Holders.
"Shelf Suspension" has the meaning set forth in Section 2(c).
"Underwritten Offering" means an offering registered under the
Securities Act in which securities of the Company are sold to an
underwriter on a firm commitment basis for reoffering to the public.
"Ventas" means Ventas Realty, Limited Partnership and/or one or
more trusts established for the benefit of the stockholders of Ventas, Inc.
(the "Trust"). For purposes of requesting a Demand Registration pursuant to
Section 3 hereof, either Ventas Realty, Limited Partnership or the Trust
(but not both) shall be deemed an Initial Holder.
"Ventas Stockholder Distribution" means a pro rata distribution
by Ventas, Inc. of Registrable Securities held by Ventas, Inc. solely to
its beneficial owners.
Whenever used in this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, any noun or pronoun
shall be deemed to include the plural as well as the singular and to cover
all genders. The name assigned this Agreement and the section captions used
herein are for convenience of reference only and shall not be construed to
affect the meaning, construction or effect hereof. Unless otherwise
specified, the terms "hereof," "herein," "hereunder" and similar terms
refer to this Agreement as a whole, and references herein to Sections refer
to Sections of this Agreement.
2. Shelf Registration
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(a) Filing. Subject to Section 2(c), as soon as practicable after
the Effective Date, but in no event later than 120 days following the
Effective Date, the Company shall file with the Commission a Shelf
Registration Statement relating to the offer and sale of Registrable
Securities by the Holders thereof from time to time in accordance with (i)
the reasonable and customary methods of distribution elected by such
Holders (including one or more Underwritten Offerings) and (ii) in order to
permit a Ventas Stockholder Distribution, in each case as set forth in such
Shelf Registration Statement, and shall use its reasonable best efforts to
cause such Shelf Registration Statement to be declared effective under the
Securities Act as soon as practicable thereafter.
(b) Continued Effectiveness. Subject to Section 2(c), the Company
shall use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit any prospectus that
forms a part thereof to be usable by Holders until the Expiration Time
(such period being the "Shelf Period"), provided that the Shelf Period
shall be subject to extension in accordance with Section 6(c).
(c) Delay in Filing; Suspension of Registration. If the filing,
initial effectiveness or continued effectiveness of the Shelf Registration
Statement at any time would require the Company to make an Adverse
Disclosure or would require the inclusion in such Shelf Registration
Statement of audited financial statements that are unavailable to the
Company for reasons beyond its reasonable control, the Company may, upon
giving prompt written notice (but in any event within five (5) days of
determination) of such action to the Holders, delay the filing or initial
effectiveness of, or suspend use of, the Shelf Registration Statement for
the shortest period of time determined in good faith by the Company to be
necessary for such purpose (a "Shelf Suspension"); provided, however, that
the Company shall not be permitted to exercise a Shelf Suspension (i) more
than three times during any twenty-four (24) month period, (ii) for a
period exceeding ninety (90) days on any one occasion, or (iii) for an
aggregate period exceeding one hundred twenty (120) days in any twelve (12)
month period. In the event of a Shelf Suspension, the Holders agree to
suspend, immediately upon their receipt of the notice referred to above,
any sale or offer to sell the Registrable Securities, and the use of the
prospectus related to the Shelf Registration in connection with any such
sale or offer to sell Registrable Securities, and agree not to disclose to
any other Person the fact that the Company has exercised a Shelf Suspension
or any related facts. The Company shall promptly (but in any event within
five (5) days) notify the Holders upon the termination of any Shelf
Suspension.
(d) Underwritten Offering. If the Holders holding not less than a
majority of the Registrable Securities included in the Shelf Registration
Statement so elect by written request to the Company, such Holders may
conduct an offering in the form of an Underwritten Offering and the
Company, if necessary, shall amend or supplement the Shelf Registration
Statement for such purpose. The Holders holding a majority of the
Registrable Securities included in such Underwritten Offering shall, after
consulting with the Company, have the right to select the managing
underwriter or underwriters for the offering, subject to the right of the
Company to approve such managing underwriter or underwriters (which
approval shall not be unreasonably withheld) and to select one co-managing
underwriter reasonably acceptable to such Holders.
(e) Effect on Demand Registration Obligation. The provisions of
Section 3 of this Agreement shall not apply at any time that the Company
maintains the effectiveness of a Shelf Registration Statement and is
otherwise complying with its obligations under this Section 2 with respect
to all Registrable Securities.
3. Demand Registrations.
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(a) Demand by Holders.
(i) Subject to Section 2(e), each Initial Holder may make a
written request to the Company for registration of all or any part of the
Registrable Securities held by such requesting Holder; provided that the
estimated market value of the Registrable Securities to be so registered is
at least $10 million in the aggregate or not less than 5% of the
Registrable Securities; and provided further that Ventas shall be entitled
to request a Demand Registration with respect to a Ventas Stockholder
Distribution without regard to the dollar or percentage limits set forth
above. Any such requested registration shall hereinafter be referred to as
a "Demand Registration." Each request for a Demand Registration shall
specify the aggregate amount of Registrable Securities to be registered and
the intended methods of disposition thereof.
(ii) Within ten (10) days following receipt of any request
for a Demand Registration, the Company shall deliver written notice of such
request to all other Holders of Registrable Securities. Thereafter, subject
to Section 3(e), the Company shall include in such Demand Registration any
additional Registrable Securities which the Holder or Holders thereof have
requested in writing be included in such Demand Registration, provided that
all requests therefor have been received by the Company within ten (10)
days of the Company's having given the applicable notice to such Holder or
Holders. All such requests shall specify the aggregate amount of
Registrable Securities to be registered and the intended method or methods
of distribution of the same. The Company also may elect to include in such
registration additional securities of the Company to be registered
thereunder, including securities to be sold for the Company's own account
or for the account of Persons who are not Holders.
(iii) As promptly as practicable following receipt of a
request for a Demand Registration, but in no event later than the later of
(x) 180 days following the Effective Date and (y) 60 days following receipt
by the Company of such request, the Company shall, subject to the terms
hereof and applicable law, use its reasonable best efforts to file a
registration statement relating to such Demand Registration and shall use
its reasonable best efforts to cause such registration statement to be
declared effective under the Securities Act as soon as practicable
thereafter and to keep such registration statement effective for not less
than ninety (90) days (or such shorter period during which a prospectus is
required to be delivered under the Securities Act).
(b) Limitation on Demand Registrations; Effective Registration.
In no event shall the Company be required to effect more than one Demand
Registration requested by any Initial Holder. In addition, the Company
shall not be required to file a registration statement for a Demand
Registration (i) at any time during the 120-day period following the
effective date of another such registration statement (other than a
registration statement relating solely to a Ventas Stockholder
Distribution), or (ii) during the period commencing on the seventh day
prior to the effective date of an offering by the Company that is
registered under the Securities Act and ending on the ninetieth day after
such offering is completed, provided that, solely with respect to a Ventas
Stockholder Distribution, Ventas shall have been afforded the opportunity
to participate in such offering in accordance with the provisions of
Section 4 hereof. A registration will not count as a Demand Registration
hereunder until the related registration statement becomes effective and
has remained effective for the period of time specified in Section
3(a)(iii).
(c) Suspension of Registration. If the filing, initial
effectiveness or continued use of a registration statement in respect of a
Demand Registration at any time would require the Company to make an
Adverse Disclosure or would require the inclusion in such registration
statement of audited financial statements that are unavailable to the
Company for reasons beyond the Company's reasonable control, the Company
may, upon giving prompt written notice (but in any event within five (5)
days of determination) of such action to the Holders holding Registrable
Securities included or proposed to be included in such Demand Registration,
delay the filing or initial effectiveness of, or suspend use of, such
registration statement for the shortest period of time determined in good
faith by the Company to be necessary for such purpose (a "Demand
Suspension"); provided, however, that the Company shall not be permitted to
exercise a Demand Suspension (i) more than three times during any
twenty-four (24) month period, (ii) for a period exceeding ninety (90) days
on any one occasion, or (iii) for an aggregate period exceeding one hundred
twenty (120) days in any twelve (12) month period. In the event of a Demand
Suspension, the Holders agree to suspend, immediately upon their receipt of
the notice referred to above, any sale or offer to sell the Registrable
Securities, and the use of the prospectus related to the Demand
Registration in connection with any such sale or offer to sell Registrable
Securities, and agree not to disclose to any other Person the fact that the
Company has exercised a Demand Suspension or any related facts. The Company
shall promptly (but in any event within five (5) days) notify the Holders
holding Registrable Securities affected by any Demand Suspension upon the
termination of such Demand Suspension.
(d) Underwritten Offering. If the Holders holding not less than a
majority of the Registrable Securities included in any offering pursuant to
a Demand Registration so elect by written request to the Company, such
offering shall be in the form of an Underwritten Offering. Holders holding
a majority of the Registrable Securities included in such Underwritten
Offering shall, after consulting with the Company, have the right to select
the managing underwriter or underwriters for the offering, subject to the
right of the Company to approve such managing underwriter or underwriters
(which approval shall not be unreasonably withheld) and to select one
co-managing underwriter reasonably acceptable to such Holders.
(e) Priority of Securities Registered Pursuant to Demand
Registrations. If the managing underwriter or underwriters of a proposed
offering of Registrable Securities included in a Demand Registration inform
the Holders of such Registrable Securities and the Company in writing that,
in its or their opinion, the number of securities requested to be included
in such Demand Registration (including securities of the Company for its
own account or for the account of other Persons which are not Holders)
exceeds the number which can be sold in such offering without being likely
to have an adverse effect on the price, timing or distribution of the
securities offered or the market for the securities offered, the Company
will include in such registration all of the Registrable Securities sought
to be registered therein by the Holders and only such lesser number of
other securities requested to be included for the account of the Company or
for the account of other Persons which are not Holders as shall not, in the
opinion of the managing underwriter or underwriters, be likely to have such
an effect. In the event that, despite the reduction of the number of
securities to be offered for the account of the Company or for the account
of Persons which are not Holders in such registration pursuant to the
immediately preceding sentence, the number of Registrable Securities to be
included in such registration exceeds the number which, in the opinion of
the managing underwriter or underwriters, can be sold without having the
adverse effect referred to above, the number of Registrable Securities that
can be included without having such an adverse effect shall be allocated
pro rata among the Holders which have requested participation in the Demand
Registration (based, for each such Holder, on the percentage derived by
dividing (i) the number of Registrable Securities which such Holder has
requested to include in such Demand Registration by (ii) the aggregate
number of Registrable Securities which all such Holders have requested to
include (such Holder's "Allocation Percentage")). Notwithstanding the
foregoing, if more than 50% of the Registrable Securities of a Holder
requested to be registered pursuant to a Demand Registration under this
Section 3 are excluded from such Demand Registration, then the Holder
having such securities excluded (an "Excluded Holder") shall have the right
to withdraw all, or any number, of their Registrable Securities from
inclusion in such Demand Registration no later than 20 days prior to its
effectiveness. If less than 80% of the aggregate Registrable Securities
requested to be included in such Demand Registration by an Initial Holder
are actually included therein, such registration will not count as a Demand
Registration of such Initial Holder for purposes of this Section 3.
Notwithstanding the foregoing, no Registrable Securities to be distributed
pursuant to a Ventas Stockholder Distribution shall be excluded from a
Demand Registration by virtue of this Section 3(e).
(f) Registration Statement Form. Registrations under this Section
3 shall be on such appropriate registration form of the Commission (i) as
shall be selected by the Company and as shall be reasonably acceptable to
the Holders holding a majority of Registrable Securities requesting
participation in the Demand Registration and (ii) as shall permit the
disposition of the Registrable Securities in accordance with the intended
method or methods of disposition specified in the applicable Holders'
requests for such registration.
4. Piggyback Registrations.
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(a) Participation.
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(i) If the Company at any time proposes to file a
registration statement with respect to any offering of equity securities
for its own account or for the account of any holders of its securities
(other than (A) a registration under Section 2 hereof, (B) a registration
on Form S-4 or S-8 or any successor form to such forms or (C) a
registration on any registration form which does not permit secondary sales
or does not include substantially the same information as would be required
to be included in a registration statement covering the sale of Registrable
Securities (other than information as to the selling stockholders and their
intended method or methods of disposition)), then, as soon as practicable
(but in no event less than fifteen (15) days prior to the proposed date of
filing such registration statement with the Commission), the Company shall
give written notice of such proposed filing to all Holders of Registrable
Securities and such notice shall offer the Holders the opportunity to
register such number of Registrable Securities as each such Holder may
request in writing (a "Piggyback Registration"). Subject to Section 4(b),
the Company shall include in such registration statement all such
Registrable Securities with respect to which the Company has received
written requests for inclusion therein within ten (10) days after the
Company's notice has been given ("Included Registrable Securities"). If at
any time after giving written notice of its intention to register any
equity 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 or to delay registration of such
equity securities, the Company may, at its election, give written notice of
such determination to each Holder holding Included Registrable Securities
and, (x) in the case of a determination not to register, shall be relieved
of its obligation to register any Included Registrable Securities in
connection with such registration, and (y) in the case of a determination
to delay registering, shall be permitted to delay registering any Included
Registrable Securities for the same period as the delay in registering such
other equity securities.
(ii) If the offering pursuant to a Piggyback Registration is
to be an Underwritten Offering, then each Holder making a request for its
Registrable Securities to be included therein must, and the Company shall
use its reasonable best efforts to make such arrangements with the
underwriters so that each such Holder may, participate in such Underwritten
Offering on the same terms as other Persons selling securities in such
Underwritten Offering. If the offering pursuant to such registration is to
be on any other basis, then each Holder making a request for a Piggyback
Registration pursuant to this Section 4(a) must participate in such
offering on such basis. Notwithstanding any provision in this Agreement to
the contrary, any Holder participating through a Piggyback Registration
shall have no right to change the intended method or methods of disposition
otherwise applicable, other than to include provisions reasonably necessary
to effect a Ventas Stockholder Distribution.
(b) Priority of Piggyback Registration. If the managing
underwriter or underwriters of any proposed offering of securities included
in a Piggyback Registration informs the Holders holding Included
Registrable Securities in writing that, in its or their opinion, the total
number of securities which such Holders and any other Persons intend to
include in such offering exceeds the number which can be sold in such
offering without being likely to have an adverse effect on the price,
timing or distribution of the securities offered or the market for the
securities offered, then the securities to be included in such registration
shall be allocated as follows:
(i) first, 100% of the securities that the Company or any Person
exercising a contractual right to demand registration has
proposed to sell shall be included therein;
(ii) second, and only if all the securities referenced in clause
(i) have been included, the number of Included Registrable
Securities that, in the opinion of such underwriter or
underwriters, can be sold without having such adverse effect
shall be included therein, with such number to be allocated
pro rata among the Holders of Included Registrable
Securities (based, for each such Holder, on such Holder's
Allocation Percentage); provided, however, that if as a
result of the provisions of this Section 4(b), any Holder
shall not be entitled to include at least 50% of such
Holder's Included Registrable Securities, such Holder may
withdraw such Holder's request to include all, or any number
of such Registrable Securities in such registration
statement no later than 20 days prior to its effectiveness;
and
(iii) third, and only if all of the Registrable Securities
referenced in clauses (i) and (ii) have been included, any
other equity securities eligible for inclusion in such
registration which, in the opinion of such underwriters, can
be sold without having such adverse effect shall be included
therein.
5. Black-out Periods
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(a) Black-out Periods for Holders. In the event of (i) a
registration by the Company involving the offering and sale by the Company
of its equity securities or securities convertible into or exchangeable for
its equity securities or (ii) an Underwritten Offering involving the
offering and sale by Holders of Registrable Securities, the Holders agree,
if requested by the Company (or, in the case of any Underwritten Offering,
by the managing underwriter or underwriters) and provided that the Company
has complied with its obligations under Section 4, not to effect any public
sale or distribution (including any sale pursuant to Rule 144 under the
Securities Act) of any securities of the Company (except, in each case, as
part of the applicable registration, if permitted, and provided that,
solely with respect to a Ventas Stockholder Distribution, Ventas shall have
been afforded the opportunity to participate in such offering in accordance
with the provisions of Section 4 hereof) which securities are the same as
or similar to those being registered in connection with such registration,
or which are convertible into or exchangeable or exercisable for such
securities, during the period beginning seven (7) days before and ending 90
days (or such lesser period as may be permitted by the Company or such
managing underwriters) after, the effective date of the registration
statement filed in connection with such registration, to the extent such
Holders are timely notified in writing by the Company or the managing
underwriter or underwriters.
(b) Black-out Periods for the Company. In the event of a
registration of Registrable Securities pursuant to Section 2 or Section 3
hereof, the Company agrees, if requested by the Holders holding a majority
of the Registrable Securities to be sold pursuant to such registration (or,
in the case of an Underwritten Offering, by the managing underwriter or
underwriters in such Underwritten Offering), not to effect any public sale
or distribution of any securities of the Company which are the same as or
similar to those being registered, or which are convertible into or
exchangeable or exercisable for such securities, during the period
beginning seven (7) days before, and ending 90 days (or such lesser period
as may be permitted by such Holders or such underwriter or underwriters)
after, the effective date of the registration statement filed in connection
with such registration (or, in the case of an Underwritten Offering under
the Shelf Registration, the date of the closing under the underwriting
agreement in connection therewith), to the extent the Company is timely
notified in writing by such Holders or such underwriter or underwriters.
Notwithstanding the foregoing, the Company may effect a public sale or
distribution of securities of the type described above and during the
periods described above if the same (A) is made pursuant to a registration
on Form S-4 or S-8 or any successor form to such forms or (B) in connection
with a direct or indirect acquisition, merger or other business combination
by the Company of or with another Person.
6. Registration Procedures.
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(a) In connection with the Company's registration obligations
pursuant to this Agreement, the Company shall, subject to the limitations
set forth herein, use its reasonable best efforts to effect any such
registration so as to permit the sale of the applicable Registrable
Securities in accordance with the intended method or methods of
distribution thereof as expeditiously as reasonably practicable and, in any
event, in conformity with any required time period set forth herein, and in
connection therewith the Company shall:
(i) before filing a registration statement or prospectus
with the Commission, or any amendments or supplements thereto, furnish to
the underwriter or underwriters, if any, and to the Holders holding
Registrable Securities included in such registration statement, copies of
all documents prepared to be filed, which documents shall be subject to the
reasonable review and comment of such Holders, such underwriters, if any,
and their respective counsel;
(ii) prepare and file with the Commission a registration
statement relating to the registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the
Registrable Securities;
(iii) prepare and file with the Commission such amendments
or supplements to the applicable registration statement or prospectus used
in connection therewith as may be (A) reasonably requested by any
participating Holder (to the extent such request relates to information
relating to such Holder), (B) necessary to keep such registration effective
for the period of time required by this Agreement or (C) necessary to
comply with the applicable provisions of Rules 424 and 430A under the
Securities Act;
(iv) notify the selling Holders and the managing underwriter
or underwriters, if any, as soon as reasonably practicable after notice
thereof is received by the Company (A) when the applicable registration
statement or any amendment thereto has been filed or becomes effective and
when the applicable prospectus or any amendment or supplement thereto has
been filed, (B) of any written comments by the Commission or any request by
the Commission for amendments or supplements to such registration statement
or prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or any order preventing or suspending the use of any
preliminary or final prospectus or the initiation or threat of any
proceedings for such purposes and (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for offering or sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose;
(v) promptly notify each selling Holder and the managing
underwriter or underwriters, if any, when the Company becomes aware of the
occurrence of any event as a result of which the applicable registration
statement or prospectus (as then in effect) contains any untrue statement
of a material fact or omits to state a material fact necessary to make the
statements therein (in the case of the prospectus and any preliminary
prospectus, in light of the circumstances under which they were made) not
misleading or, if for any other reason it shall be necessary to amend or
supplement such registration statement or prospectus in order to comply
with the Securities Act and, in either case as promptly as reasonably
practicable thereafter, prepare and file with the Commission a
post-effective amendment or supplement to such registration statement or
prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers
of Registrable Securities, the prospectus shall not contain an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading;
(vi) make every reasonable effort to prevent or obtain at
the earliest possible moment the withdrawal of any stop order with respect
to the applicable registration statement or other order suspending the use
of any preliminary or final prospectus;
(vii) promptly incorporate in a prospectus supplement or
post-effective amendment to the applicable registration statement such
information as the managing underwriter or underwriters, if any, or the
Holders holding a majority of the Registrable Securities being sold agree
should be included therein (or, in the case of a Ventas Stockholder
Distribution, by Ventas) relating to the plan of distribution with respect
to such Registrable Securities, the amount of Registrable Securities being
distributed and the purchase price being paid therefor; and make all
required filings of such prospectus supplement or post-effective amendment
as soon as reasonably practicable after being notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each managing
underwriter, if any, without charge, as many conformed copies as such
Holder or managing underwriter may reasonably request of the applicable
registration statement, including all documents incorporated by reference
therein or exhibits to such registration statement;
(ix) deliver to each selling Holder and each managing
underwriter, if any, without charge, as many copies of the applicable
prospectus (including each preliminary prospectus) as such Holder or
managing underwriter may reasonably request (it being understood that the
Company consents to the use of the prospectus by each of the selling
Holders and the underwriter or underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by the prospectus);
(x) on or prior to the date on which the applicable
registration statement is declared effective, use its reasonable best
efforts to register or qualify such Registrable Securities for offer and
sale under the securities or "Blue Sky" laws of each state and other
jurisdiction of the United States, as any such selling Holder or
underwriter, if any, or their respective counsel reasonably and timely
requests in writing, and do any and all other acts or things reasonably
necessary or advisable to keep such registration or qualification in effect
so as to permit the commencement and continuance of sales and dealings in
such jurisdictions for as long as may be necessary to complete the
distribution of the Registrable Securities covered by the registration
statement; provided that the Company shall not be required (A) to qualify
generally to do business in any jurisdiction where it is not then so
qualified, (B) to take any action which would subject it to taxation or
general service of process in any such jurisdiction where it is not then so
subject or (C) make any change in its charter or by-laws that the board of
directors of the Company determines in good faith to be contrary to the
best interests of the Company and its stockholders;
(xi) cooperate with the selling Holders and the managing
underwriter, underwriters or agent, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends;
(xii) not later than the effective date of the applicable
registration statement, provide a CUSIP number for all Registrable
Securities included in such registration statement and provide the
applicable transfer agent with printed certificates for the Registrable
Securities, which certificates shall be in a form eligible for deposit with
The Depository Trust Company;
(xiii) obtain for delivery to the underwriter or
underwriters, if any, with copies to the Holders included in such
registration, an opinion or opinions from counsel for the Company dated the
effective date of the registration statement or, in the event of an
Underwritten Offering, the date of the closing under the underwriting
agreement, in customary form, scope and substance;
(xiv) in the case of an Underwritten Offering, obtain for
delivery to the Company and the underwriter or underwriters, if any, with
copies (subject to the reasonable consent of the certified public
accountants referred to below, determined in accordance with market
practice) to the Holders included in such registration, a comfort letter
from the Company's independent certified public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters and as the managing underwriter or underwriters reasonably request,
dated the date of execution of the underwriting agreement and brought down
to the closing under the underwriting agreement;
(xv) reasonably cooperate with each selling Holder of
Registrable Securities and each underwriter or agent, if any, participating
in the disposition of such Registrable Securities and their respective
counsel in connection with any filings required to be made with the NASD;
(xvi) use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission and make generally
available to its securityholders such information (financial or otherwise)
as may be required thereunder;
(xvii) provide and cause to be maintained a transfer agent
and registrar for all Registrable Securities covered by the applicable
registration statement from and after a date not later than the effective
date of such registration statement;
(xviii) cause all Registrable Securities covered by the
applicable registration statement to be listed on each securities exchange
on which any of the Company's securities of such class are then listed or
quoted and on each inter-dealer quotation system on which any of the
Company's securities of such class are then quoted; and
(xix) make available upon reasonable notice at reasonable
times and for reasonable periods for inspection by each Initial Holder and
a representative appointed by the Holders holding a majority of the
Registrable Securities covered by the applicable registration statement, by
any managing underwriter or underwriters participating in any disposition
to be effected pursuant to such registration statement and by any attorney,
accountant or other agent retained by such Holders or any such managing
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause all
of the Company's officers, directors and employees and the independent
public accountants who have certified its financial statements to make
themselves available upon reasonable notice at reasonable times and for
reasonable periods to discuss the business of the Company and to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility (subject to the entry by each party referred to in this
clause (xix) into a customary confidentiality agreement in a form
reasonably acceptable to the Company).
(b) The Company may require each selling Holder as to which any
registration is being effected to furnish to the Company such information
regarding itself, the Registrable Securities held by it, the distribution
of such Holder's Registrable Securities and such other information relating
to such Holder and its ownership of the applicable Registrable Securities
as the Company may from time to time reasonably request, including without
limitation information required under Item 507 of Regulation S-K and other
information necessary to effect a registration with respect to a Ventas
Stockholder Distribution. Each Holder agrees to furnish such information to
the Company and to cooperate with the Company as necessary to enable the
Company to comply with the provisions of this Agreement. The Company shall
have the right to exclude any Holder that does not comply with the
preceding sentence from the applicable registration.
(c) Each Holder agrees by acquisition of its Registrable
Securities that, upon receipt of any notice from the Company of the
occurrence of any event of the kind described in Section 6(a)(v), such
Holder shall discontinue disposition of its Registrable Securities pursuant
to such registration statement until such Holder's receipt of the copies of
the supplemented or amended prospectus contemplated by Section 6(a)(v) and
of any additional or supplemental filings that are incorporated by
reference in the prospectus, or until such Holder is advised in writing by
the Company that the use of the prospectus may be resumed, and has received
copies and, if so directed by the Company, such Holder shall deliver to the
Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the prospectus covering such
Registrable Securities which are current at the time of the receipt of such
notice. In the case of the Shelf Registration Statement, in the event the
Company shall give any such notice, the Shelf Period shall be extended by
the number of days in the period from and including the date of the giving
of such notice in accordance with Section 16 and pursuant to this Section
6(c) to but not including the date when each Holder of Registrable
Securities covered by the Shelf Registration Statement shall have received
copies of the supplemented or amended prospectus contemplated by Section
6(a)(v), and the restrictions of this Section 6(c) shall no longer be
applicable.
7. Registration Expenses. The Company shall pay all expenses
incident to its performance or compliance with its obligations under this
Agreement, including without limitation: (i) all registration and filing
fees, and any other fees and expenses associated with filings required to
be made with the Commission or the NASD, (ii) all fees and expenses of
compliance with federal and state securities or "Blue Sky" laws, (iii) all
of its printing, duplicating, word processing, messenger, telephone,
facsimile and delivery expenses (including expenses of printing
certificates for the Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing prospectuses), (iv) all
fees and disbursements of counsel for the Company and of all independent
certified public accountants of the Company, (v) Securities Act liability
insurance or similar insurance if the Company so desires, (vi) all fees and
expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange or the quotation of the Registrable
Securities on any inter-dealer quotation system, (vii) the reasonable fees
and expenses of one counsel for all Holders (selected by the Holders of a
majority of the Registrable Securities included in a registration) in an
amount not to exceed $50,000 and (viii) all road show costs and expenses
not paid for by the underwriters. In addition, the Company shall pay its
internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any audit and the fees and expenses of any Person, including
special experts, retained by the Company. The Company shall not be required
to pay (w) any other costs or expenses in the course of the transactions
contemplated hereby, (x) any expenses incurred by the Holders (except as
provided in clauses (i), (ii) and (vii) of the preceding sentence), (y) any
underwriting discounts or commissions or transfer taxes attributable to the
sale of Registrable Securities or (z) any fees and expenses of counsel to
the underwriters.
8. Indemnification.
---------------
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Holder selling Registrable Securities and its respective officers,
directors, partners and employees and each Person who controls (within the
meaning of the Securities Act or the Securities Exchange Act) such selling
Holder (each, a "Participant") from and against any and all losses, claims,
damages, judgments, liabilities and expenses (including reasonable costs of
investigation and legal expenses) caused by, arising out of or based upon
(i) any untrue or alleged untrue statement of a material fact contained in
any registration statement under which such Registrable Securities were
registered under the Securities Act (including any final, preliminary or
summary prospectus contained therein or any amendment thereof or supplement
thereto or any documents incorporated by reference therein) 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 (in the case
of a prospectus or preliminary prospectus, in light of the circumstances
under which they were made) not misleading (each, a "Loss" and collectively
"Losses"); provided, however, that the Company shall not be liable to any
Participant in any such case to the extent that any such Loss is caused by
written information furnished to the Company by such Holder expressly for
use in the preparation thereof , or if such untrue statement or alleged
untrue statement or omission or alleged omission is corrected in an
amendment or supplement to such prospectus which has been made available to
the Holders and the relevant Holder fails to deliver such prospectus as so
amended or supplemented, if such delivery is required under applicable law
or the applicable rules of any securities exchange, prior to or
concurrently with the sales of the Registrable Securities to the Person
asserting such Loss. This indemnity shall be in addition to any liability
the Company may otherwise have.
(b) Indemnification by the Holders. Each selling Holder agrees
(severally and not jointly) to indemnify and hold harmless, to the fullest
extent permitted by law, the Company, its directors, officers and employees
and each Person who controls the Company (within the meaning of the
Securities Act and the Securities Exchange Act) from and against any and
all Losses to the extent, but only to the extent, that any such Loss is
caused by, arises out of or is based upon any information furnished in
writing by such selling Holder to the Company specifically for inclusion in
any registration statement under which such Registrable Securities were
registered under the Securities Act (including any final, preliminary or
summary prospectus contained therein or any amendment thereof or supplement
thereto or any documents incorporated by reference therein) and was not
corrected in a subsequent writing prior to or concurrently with the sale of
the Registrable Securities to the Person asserting such Loss. The liability
of any Holder under this paragraph shall in no event exceed the amount by
which proceeds received by such Holder from sales of Registrable Securities
giving rise to such obligations exceeds the amount of any Loss which such
Holder has otherwise been required to pay by reason of such untrue
statement or omission. This indemnity shall be in addition to any liability
such Holder may otherwise have.
(c) Indemnification Proceedings. Any Person entitled to
indemnification hereunder (an "Indemnified Party") shall (i) give prompt
written notice to the Person from whom such indemnification may be sought
(the "Indemnifying Party") of any claim with respect to which it seeks
indemnification, provided, however, that the failure to so notify the
Indemnifying Party shall not relieve it of any obligation or liability
which it may have hereunder or otherwise except to the extent it is
materially prejudiced by such failure, and (ii) permit such Indemnifying
Party to assume the defense of such claim with counsel reasonably
satisfactory to the Indemnified Party; provided, however, that the
Indemnified Party shall have the right to select and employ separate
counsel and to participate in the defense of such claim, and the fees and
expenses of such counsel shall be at the expense of the Indemnified Party
unless (A) the Indemnifying Party has agreed in writing to pay such fees or
expenses, (B) the Indemnifying Party shall have failed to assume the
defense of such claim within a reasonable time after having received notice
of such claim from the Indemnified Party and to employ counsel reasonably
satisfactory to the Indemnified Party, (C) in the reasonable judgment of
the Indemnified Party, based upon advice of its counsel, a conflict of
interest exists between the Indemnified Party and the Indemnifying Party
with respect to such claims or (D) the Indemnified Party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other Indemnified Parties that are different from or in
addition to those available to the Indemnifying Party (in which case, if
the Indemnified Party notifies the Indemnifying Party in writing that the
Indemnified Party elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to
assume the defense of such claim on behalf of the Indemnified Party). If
such defense is assumed by the Indemnifying Party, or if such defense is
not assumed by the Indemnifying Party but the Indemnifying Party
acknowledges that the Indemnified Party is entitled to indemnification
hereunder, the Indemnifying Party shall not be subject to any liability for
any settlement made without its consent, which consent shall not be
unreasonably withheld; provided, that an Indemnifying Party shall not be
required to consent to any settlement involving the imposition of equitable
remedies or involving the imposition of any material obligations on such
Indemnifying Party other than financial obligations for which such
Indemnified Party will be indemnified hereunder. If the Indemnifying Party
assumes the defense, the Indemnifying Party shall have the right to settle
such action without the consent of the Indemnified Party; provided, that
the Indemnifying Party shall be required to obtain the consent of the
Indemnified Party (which consent shall not be unreasonably withheld) if the
settlement includes any admission of wrongdoing on the part of the
Indemnified Party or any equitable remedies or restriction on the
Indemnified Party or its officers, directors or employees. No Indemnifying
Party shall consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to each Indemnified Party of an unconditional release
from all liability in respect of such claim or litigation. An Indemnifying
Party (or, as the case may be, Indemnifying Parties) shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm admitted to practice in such
jurisdiction at any one time from all Indemnified Parties collectively
unless (x) the employment of more than one counsel has been authorized in
writing by such Indemnifying Party (or Indemnifying Parties) or (y) a
conflict exists or may exist (based on advice of counsel to an Indemnified
Party) between such Indemnified Party and other Indemnified Parties, in
each of which cases the Indemnifying Party (or Indemnifying Parties) shall
be obligated to pay the reasonable fees and expenses of such additional
counsel or counsels. The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any investigation made
by or on behalf of the Indemnified Party or any officer, director or
controlling Person of such Indemnified Party and shall survive the transfer
of Registrable Securities.
(d) Contribution. If for any reason the indemnification provided
for in paragraphs (a) and (b) of this Section 8 is unavailable to an
Indemnified Party or is insufficient to hold it harmless as contemplated by
paragraphs (a) and (b) of this Section 8, then the Indemnifying Party shall
contribute to the amount paid or payable by the Indemnified Party as a
result of such Loss 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. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Indemnifying Party or
the Indemnified Party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement
or omission. Notwithstanding anything in this Section 8(d) to the contrary,
no Indemnifying Party (other than the Company) shall be required pursuant
to this Section 8(d) to contribute any amount in excess of the amount by
which the net proceeds received by such Indemnifying Party from the sale of
Registrable Securities in the offering to which the Losses of the
Indemnified Parties relate exceeds the amount of any damages which such
Indemnifying Party has otherwise been required to pay by reason of such
untrue statement or omission. The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in the
preceding sentences. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. If indemnification is available under this
Section 8, the Indemnifying Parties shall indemnify each Indemnified Party
to the fullest extent provided in Sections 8(a) and 8(b) hereof without
regard to the relative fault of said Indemnifying Parties or Indemnified
Party.
(e) Reimbursement. In addition to, but not in duplication of, the
foregoing, each Initial Holder shall be entitled to reimbursement from the
Company for any out-of-pocket losses actually incurred in the event, and
only to the extent, that such Holder suffers such losses as a result of
such Holder's inability to make delivery of sold securities due to the
Company's breach of its commitment to provide timely notice as required by
clauses (C) and (D) of Section 6(a)(iv).
9. Compliance with Rule 144. The Company shall file the reports
required to be filed by it under the Securities Act and the Securities
Exchange Act so long as the Company is obligated to file such reports, and
it shall 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
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 rules or regulations hereafter adopted by the Commission. Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
10. Underwriting Agreements. If requested by the underwriters for
any Underwritten Offering requested by Holders pursuant to Section 2 or
Section 3, the Company and the Holders of Registrable Securities to be
included therein shall enter into an underwriting agreement with such
underwriters, such agreement to be reasonably satisfactory in substance and
form to the Company, the Holders holding a majority of the Registrable
Securities to be included in such Underwritten Offering and the
underwriters, and to contain such terms and conditions as are generally
prevailing in agreements of that type, including, without limitation, such
representations and warranties to, and covenants with, the underwriters
with respect to the business of the Company and its subsidiaries and the
registration statement, prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings of
securities similar to the Registrable Securities, and indemnities no less
favorable to the recipient thereof than those provided in Section 8. The
Holders holding any Registrable Securities to be included in any
Underwritten Offering pursuant to Section 4 shall enter into such an
underwriting agreement at the request of the Company. No Holder shall be
required in any such underwriting agreement 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 Securities, such Holder's intended method of
distribution and any other representations required by law or as the
underwriters may reasonably request; provided, however, that each Holder
agrees to execute customary powers of attorney, custody agreements and
other forms or documents reasonably requested by the underwriters.
11. Term. This Agreement shall terminate at the Expiration Time.
The provisions of Section 8, 22 and 23 shall survive any termination.
12. Amendments and Waivers. The provisions of this Agreement may
be amended or waived at any time only by the written agreement of the
Company and the Holders holding a majority of the Registrable Securities;
provided, however, that any amendment or waiver that adversely effects any
Holder or group of Holders (including without limitation any amendment or
waiver to the extent it has an adverse effect on the ability to effect a
Ventas Stockholders Distribution) shall only be binding on those Holders
that have expressly agreed to such amendment or waiver. Any amendment or
waiver on the part of any such Holders of any provision or condition of
this Agreement must be made in writing and shall be effective only to the
extent specifically set forth in writing. Any amendment or waiver effected
in accordance with this paragraph shall be binding upon each Holder and the
Company, except as provided in the proviso to the first sentence of this
section. Each Holder acknowledges that by operation of this paragraph the
Holders holding a majority of the Registrable Securities, acting in
conjunction with the Company, will have the right and power to diminish or
eliminate all rights pursuant to this Agreement, except as provided in the
proviso to the first sentence of this section.
13. Successors, Assigns and Transferees.
-----------------------------------
(a) The registration rights (other than demand registration
rights pursuant to Section 3 hereof; provided, however, that each Initial
Holder may transfer and assign all but not less than all of its Registrable
Securities to one entity, in which case such Initial Holder's unexercised
Demand Registration shall also be transferred and assigned) of any Holder
under this Agreement with respect to any Registrable Securities may be
transferred and assigned, provided that no such transfer or assignment
shall be binding upon or obligate the Company under this Agreement to any
such transferee or assignee unless and until (i) the Company shall have
received notice of such transfer or assignment as herein provided and a
written agreement of the transferee or assignee to be bound by the
provisions of this Agreement and (ii) such transferee or assignee holds
Registrable Securities. Any transfer or assignment of the rights and
obligations under this Agreement made other than as provided in the first
sentence of this Section 13 shall be null and void.
(b) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, and their respective successors and
permitted assigns.
14. Final Agreement. This Agreement constitutes the final
agreement of the parties concerning the matters referred to herein, and
supersedes all prior agreements and understandings.
15. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
16. Notices. All notices, demands or other communications or
documents to be given or delivered under or by reason of the provisions of
this Agreement shall be made in writing and shall be deemed to have been
received (a) when delivered personally to the recipient; (b) when sent to
the recipient by telecopy (receipt electronically confirmed by sender's
telecopy machine) if during normal business hours of the recipient,
otherwise on the next business day; (c) one business day after the date
when sent to the recipient by reputable express courier service (charges
prepaid), or (d) seven business days after the date when mailed to the
recipient by certified or registered mail, return receipt requested and
postage prepaid. Such notices, demands and other communications shall be
sent to the parties at the addresses indicated below, or to such other
address as any party hereto may, from time to time, designate in writing
delivered pursuant to the terms of this Section 16:
If to the Initial Holders, to the addresses set forth on Schedule
1 hereto.
If to Holders other than the Initial Holders, to the addresses
set forth on the stock record books of the Company.
If to the Company, to:
Vencor, Inc. (to be renamed Kindred Healthcare, Inc.)
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel and Chief Financial Officer
Fax: (000) 000-0000
17. Governing Law; Service of Process; Consent to Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED WITHIN THE STATE.
(b) To the fullest extent permitted by applicable law, each party
hereto (i) agrees that any claim, action or proceeding by such party
seeking any relief whatsoever arising out of, or in connection with, this
Agreement or the transactions contemplated hereby shall be brought only in
the U.S. District Court for the Southern District of New York and in any
New York State court located in the Borough of Manhattan and not in any
other State or Federal court in the United States of America or any court
in any other country, (ii) agrees to submit to the exclusive jurisdiction
of such courts located in the State of New York for purposes of all legal
proceedings arising out of, or in connection with, this Agreement or the
transactions contemplated hereby and (iii) irrevocably waives any objection
which it may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
18. Counterparts and Facsimile Execution. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and such counterparts together shall
constitute one instrument. This agreement may be executed by the exchange
of signatures by facsimile transmission. Each party shall receive a
duplicate original of the counterpart copy or copies executed by it and the
Company.
19. Securities Held by the Company or its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the
Company or any of its affiliates (as such term is defined in Rule 405 under
the Securities Act, but excluding any Holders of Registrable Securities)
shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
20. Specific Performance. Without limiting or waiving in any
respect any rights or remedies of the parties under this Agreement now or
hereinafter existing at law or in equity or by statute, each of the parties
hereto shall be entitled to seek specific performance of the obligations to
be performed by the other(s) in accordance with the provisions of this
Agreement.
21. No Inconsistent Agreements. (a) The Company shall not, on or
after the date of this Agreement, enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders
pursuant to this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any other agreement in effect on
the date hereof.
(b) In the event of any inconsistency with respect to the
registration and sale of New Warrants and New Warrant Stock as provided for
in this Agreement and in the Warrant Agreement, dated as of the date hereof
between the Company and the Warrant Agent named therein, this Agreement
shall govern the rights and obligations of those Holders of Registrable
Securities who are also Holders as defined in the Warrant Agreement.
22. Third Party Beneficiaries. Holders of Registrable Securities
and the Indemnified Parties are intended third party beneficiaries of this
Agreement, and this Agreement shall inure to the benefit of, and may be
enforced by, such Persons. Other than as set forth in the preceding
sentence, this Agreement shall be binding upon and inure solely to the
benefit of each party hereto.
23. NASD Rule 4460. For the period beginning on the date hereof
until the date the New Common Stock are listed and admitted and authorized
for trading on the New York Stock Exchange, the Nasdaq Stock Market or
another national securities exchange, the Company shall comply with the
requirements of NASD Rule 4460 as if it were subject thereto, other than
those (a) requiring the Company to provide notice of certain actions or
events to the NASD or (b) set forth in subsections (b) and (k) thereof.
24. Listing of New Common Stock. The Company shall use its
reasonable best efforts to cause the New Common Stock, including the
Registrable Securities, to be approved for listing on the New York Stock
Exchange, the Nasdaq Stock Market, or other national securities exchange.
25. Capacity of Trust as Signatory. The Company and the Holders
agree that (i) this Agreement is executed and delivered by the trustee of
the Trust, which initially is The Bank of New York (the "Trustee"), not
individually or personally but solely in its capacity as the Trustee of the
Trusts, in the exercise of the powers and authority conferred and vested in
it as such, (ii) the representations, undertakings and agreements herein
made on the part of each applicable Trust are made and intended not as
personal representations, undertakings and agreements by the Trustee, but
are made and intended for the purpose of binding only each applicable
Trust, (iii) nothing herein contained shall be construed as creating any
liability on the Trustee, individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties who are signatories to this
Agreement and by any Person claiming by, through or under such parties and
(iv) under no circumstances shall the Trustee be personally liable for the
payment of any indebtedness or expenses of each applicable Trust or be
liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by each applicable Trust under this
Agreement.
[Remainder of page intentionally left blank.
Signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first written above.
VENCOR, INC. (to be renamed
KINDRED HEALTHCARE, INC.)
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
[Signature blocks of Initial Holders to appear on subsequent pages]
SCHEDULE 1
INITIAL HOLDERS
Holder Holding
------ -------
Ventas Realty, Limited Partnership 1,498,500 shares of New Common Stock
The Ventas Stockhold 0 shares of New Common Stock
[Additional Initial Holders: To include each entity owning at least 10% of
the New Common Stock and New Warrants (on a fully converted basis) issued
and outstanding immediately following the Effective Date; counterparts may
be executed within 30 days of the Effective Date.]
