Exhibit 10.07
EXECUTION COPY
WARRANTHOLDERS RIGHTS AGREEMENT
WARRANTHOLDERS RIGHTS AGREEMENT dated as of July 15, 1998, among
VISTACARE, INC., a Delaware corporation (together with its successors, the
"COMPANY"), the stockholders signatories hereto (together with their respective
successors, the "CURRENT STOCKHOLDERS") and NATIONSCREDIT COMMERCIAL
CORPORATION ("NATIONSCREDIT") (the Current Stockholders, together with any
holder of Conversion Shares (as defined herein) and such other stockholders of
the Company as may, from time to time, become parties to this Agreement in
accordance with the provisions hereof, the "STOCKHOLDERS"; and NationsCredit and
such other warrantholders of the Company as may, from time to time, become
parties to this Agreement in accordance with the provisions hereof, the
"WARRANTHOLDERS").
WHEREAS, on the date hereof, the Current Stockholders are the beneficial
owners of Common Stock (as defined herein) or of convertible preferred stock,
and NationsCredit has purchased and is the beneficial owner of the Warrants (as
defined herein) to purchase 280,000 shares of Non-Voting Common Stock; and
WHEREAS, the Company and each Stockholder (other than the holders of the
Conversion Shares) wish to provide to the Warrantholders and the holders of the
Conversion Shares the rights described herein;
NOW THEREFORE the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Unless otherwise defined herein, the following
terms used in this Agreement shall have the meanings specified below.
"AFFILIATE" means, with respect to any Person, any of (i) a director or
executive officer of such Person, (ii) a spouse, parent, sibling or descendant
of such Person (or a spouse, parent, sibling or descendant of any director or
executive officer of such Person) and (iii) any other Person that, directly or
indirectly, controls, or is controlled by or is under common control with such
Person. For the purpose of this definition, "control" (including the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities or by contract or
agency or otherwise.
"BHC ACT" means the Bank Holding Company Act of 1956, as amended.
"COMMISSION" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"COMMON STOCK" means the Voting Common Stock or the Non-Voting Common
Stock, or both, as the context may require.
"COMMON STOCK VOTING AGREEMENT" means the Stockholders' Voting Agreement
dated August 29, 1997, as amended, by and among the Company, VHC, and the
Stockholders of VHC.
"COMMON STOCKHOLDER AGREEMENT" means the Amended and Restated Stockholders
Rights Agreement dated August 29, 1997, as amended, by and among the Company,
VHC and certain stockholders of VHC.
"CONVERSION SHARES" means (i) any shares of Non-Voting Common Stock or
other securities issued upon the exercise of any Warrants and (ii) any
securities issued with respect to any of such shares or other securities
referred to in clause (i) upon the conversion thereof into other securities
(including Voting Common Stock) or by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise; provided that any of such securities shall
cease to be Conversion Shares when such securities shall have (x) been disposed
of pursuant to a Public Sale, (y) are eligible for sale under Rule 144 (or any
successor provision then in effect) adopted under the Securities Act, or (z)
ceased to be outstanding.
"CREDIT AGREEMENT" means the Credit Agreement dated as of March 30, 1998,
among the Vista Hospice Care, Inc., the lenders named therein and NationsCredit,
as Agent, as amended from time to time.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, or any successor
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time. Reference to a particular section of
the Securities Exchange Act of 1934 shall include a reference to the comparable
section, if any, of any such successor Federal statute.
"INITIAL PUBLIC OFFERING" means the first registration of an offering of
shares of Common Stock under the Securities Act which becomes effective (other
than by a registration on Form S-4 or S-8 or any successor or similar forms).
"INITIATING HOLDER" means, for any registration pursuant to Section 3.1,
the holder or holders of any Registrable Securities or Other Shares (other than
the Company) requesting such registration of the Company's securities pursuant
to any demand registration right of such holder.
"NON-VOTING COMMON STOCK" means the Class B common stock, par value $.01
per share, of the Company.
"OTHER SHARES" means, for any registration pursuant to Section 3.1, all
shares other than Registrable Securities to be included in such registration by
the holder or holders thereof.
"PERSON" means a corporation, an association, a partnership, a limited
liability company, an organization, a business, an individual, a trust, a
government or a subdivision thereof or a governmental agency.
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"PUBLIC SALE" means any sale of Common Stock to the public pursuant to an
offering registered under the Securities Act or to the public through a broker,
dealer or market maker pursuant to the provisions of Rule 144 (or any successor
provision then in effect) adopted under the Securities Act.
"REGISTRABLE SECURITIES" means any Conversion Shares until the date (if
any) on which such Conversion Shares shall have been transferred or exchanged
and new certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent disposition of them
shall not require registration or qualification of them under the Securities Act
or any similar state law then in force.
"REGISTRATION EXPENSES" means all expenses incident to the Company's
performance of or compliance with Sections 3.1 through 3.5 hereof, including (i)
all registration, filing and NASD fees, (ii) all fees and expenses of complying
with securities or blue sky laws, (iii) all word processing, duplicating and
printing expenses, (iv) all messenger and delivery expenses, (v) the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, (vi) the
fees and disbursements of any one counsel and any one accountant retained by the
holder or holders of more than 50% of the Registrable Securities being
registered (or, in the case of any registration effected pursuant to Section
3.1, as the Initiating Holders shall have selected to represent all holders of
the Registrable Securities being registered), (vii) premiums and other costs of
policies of insurance (if any) against liabilities arising out of the public
offering of the Registrable Securities being registered if the Company desires
such insurance and (viii) any fees and disbursements of underwriters customarily
paid by issuers or sellers of securities, but not including underwriting
discounts and commissions and transfer taxes, if any, provided that, in any case
where Registration Expenses are not to be borne by the Company, such expenses
shall not include (i) salaries of the Company personnel or general overhead
expenses of the Company, (ii) auditing fees, (iii) premiums or other expenses
relating to liability insurance required by underwriters of the Company or (iv)
other expenses for the preparation of financial statements or other data, to the
extent that any of the foregoing either is normally prepared by the Company in
the ordinary course of its business or would have been incurred by the Company
had no public offering taken place.
"REGULATION Y HOLDER" means any Warrant Securityholder that is a bank
holding company within the meaning of the BHC Act, or a subsidiary thereof
subject to Regulation Y under the BHC Act.
"REGULATORY CHANGE" means, with respect to any Regulation Y Holder, (i)
any change on or after the date hereof in United States federal or state or
foreign laws or regulations (including the BHC Act and Regulation Y thereunder);
(ii) the adoption on or after the date hereof of any interpretation or ruling
applying to such Regulation Y Holder, individually or as a member of a class,
under any United States federal or state or foreign laws or regulations by any
court or governmental or regulatory authority charged with the interpretation or
administration thereof; or (iii) the modification on or after the date hereof of
any agreement or commitment with any such governmental or regulatory authority
that is applicable to or binding upon such Regulation Y Holder.
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"RESTRICTED SECURITIES" means the Warrants, the Conversion Shares and any
securities obtained upon exchange for or upon conversion or transfer of or as a
distribution on Warrants, the Conversion Shares or any such securities; provided
that particular securities shall cease to be Restricted Securities when such
securities shall have (x) been disposed of pursuant to a Public Sale, (y) been
otherwise transferred or exchanged and new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any similar state law then in force or (z)
ceased to be outstanding. Whenever any particular securities cease to be
Restricted Securities, the holder thereof shall be entitled to receive from the
issuer thereof or its transfer agent, without expense (other than transfer
taxes, if any), new securities of like tenor not bearing a legend of the
character set forth in Section 2.2.
"SECURITIES ACT" means the Securities Act of 1933, or any similar Federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time. Reference to a particular section of the
Securities Act of 1933 shall include a reference to the comparable section, if
any, of any such similar Federal statute.
"STOCKHOLDER" has the meaning set forth in the introductory paragraph.
"VHC" means Vista Hospice Care, Inc., a Delaware corporation, which is a
wholly-owned subsidiary of the Company.
"VOTING COMMON STOCK" means the Class A common stock, par value $.01 per
share, of The Company.
"WARRANT SECURITYHOLDER" means at any time any Warrantholder or any holder
of Conversion Shares.
"WARRANTHOLDERS" has the meaning set forth in the introductory paragraph
(and for purposes of Section 2.8 shall include any Person that held Warrants
that were redeemed pursuant to Section 5.3 of the Warrants).
"WARRANTS" means the Warrant or Warrants dated July 15, 1998 originally
issued to NationsCredit, as such Warrants may be transferred or otherwise
assigned, but only to the extent not theretofore exercised, redeemed or expired
in accordance with their respective terms.
All references herein to "days" shall mean calendar days unless otherwise
specified.
ARTICLE II
TRANSFER OF SHARES;
PAYMENTS TO WARRANT SECURITYHOLDERS
SECTION 2.1 GENERAL. Except as otherwise provided in this Agreement or by
law, each Stockholder may transfer its shares of Common Stock at any time to any
Person.
SECTION 2.2 RESTRICTIONS ON TRANSFER; LEGEND ON CERTIFICATES. (a) Except
as otherwise provided in this Agreement, Restricted Securities shall not be
transferable except
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(i) pursuant to an effective registration statement under the Securities Act,
(ii) pursuant to Rule 144 or 144A (or any successor provisions) under the
Securities Act or (iii) pursuant to a transaction that is otherwise exempt from
the registration requirements of the Securities Act.
(b) Unless otherwise expressly provided herein, each certificate
for Restricted Securities and each certificate issued in exchange for or upon
transfer of any thereof shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR
OFFERED FOR SALE UNLESS REGISTERED UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO AND HAVE THE BENEFIT OF A WARRANTHOLDERS RIGHTS AGREEMENT
DATED AS OF JULY 15, 1998, AMONG VISTACARE, INC. AND THE STOCKHOLDERS
AND WARRANTHOLDERS PARTIES THERETO, COPIES Of WHICH ARE ON FILE WITH
VISTACARE, INC."
(c) Any other provision of this Agreement to the contrary
notwithstanding, no transfer of any Restricted Securities other than Pursuant to
a public sale may be made to any Person unless such Person shall have agreed in
writing that such Person, as a holder of Restricted Securities, and the
Restricted Securities it acquires shall be bound by and be entitled to the
benefits of all the provisions of this Agreement applicable to such Restricted
Securities (and upon such agreement such Person shall be entitled to such
benefits). Any purported transfer of Restricted Securities without compliance
with the applicable provisions of this Agreement shall be void and of no effect,
and the purported transferee shall have no rights as a Warrantholder or
Stockholder (as applicable) or under this Agreement. In the event of such
non-complying transfer, the Company shall not transfer any such Restricted
Securities on its books or recognize the purported transferee as a shareholder
or warrantholder, as the case may be, for any purpose, until all applicable
provisions of this Agreement have been complied with.
SECTION 2.3 PERMITTED TRANSFERS. The restrictions on transfer provided in
Section 2.2(a) shall not be applicable to (i) any transfer in compliance with
federal and all applicable state securities laws to an Affiliate of the holder
of Restricted Securities, from an Affiliate of such holder to such holder or
between Affiliates of such holder (if any such Affiliate to whom shares of
Restricted Securities have been transferred by a holder thereof ceases to be an
Affiliate of such holder of Restricted Securities, such Restricted Securities
shall immediately be transferred back to the transferor thereof), (ii) any
transfer upon the death of any holder of Restricted Securities to such holder's
executors, administrators or testamentary trustees or (iii) any transfer to a
trust the beneficiaries of which include only the holder of such Restricted
Securities or such holder's spouse, parents, siblings or descendants (any
transferee referred to in (i), (ii) or (iii) above being referred to herein as a
"PERMITTED TRANSFEREE"); provided that no such transfer shall be made to any
Permitted Transferee unless such Permitted Transferee shall have agreed in
writing that such Permitted Transferee, as a Stockholder or Warrantholder (as
the case may be), and the shares of Common Stock or Warrants it acquires shall
be bound by and be
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entitled to the benefits of all the provisions of this Agreement applicable to
Common Stock or Warrants (as the case may be), and upon such agreement such
Permitted Transferee shall be entitled to such benefits.
SECTION 2.4 TAG-ALONG RIGHTS. If any Stockholder or any of its Affiliates
(any such Person for purposes of this Section 2.4, the "TRANSFEROR") wishes to
transfer its shares of Common Stock or any portion thereof to any Person (the
"TRANSFEREE"), the Transferor shall first give to the Company and each Warrant
Securityholder (pursuant to a list provided by the Company) a written notice (a
"TRANSFER NOTICE"), executed by it and the Transferee and containing (i) the
number of shares of Common Stock that the Transferee proposes to acquire from
the Transferor, (ii) the name and address of the Transferee, (iii) the proposed
purchase price, terms of payment and other material terms and conditions of such
proposed transfer, (iv) an estimate, in the Transferor's reasonable judgment, of
the fair market value of any non-cash consideration offered by the Transferee
and (v) an offer by the Transferee or Transferor to purchase, upon the purchase
by the Transferee of any shares of Common Stock owned by the Transferor and for
the same per share consideration, that number of Conversion Shares (or if such
number is not an integral number, the next integral number which is greater than
such number) of each Warrant Securityholder which shall be the product of (x)
the aggregate number of Conversion Shares either then owned, or issuable upon
exercise of Warrants then owned, by such Warrant Securityholder and (y) a
fraction, the numerator of which shall be the number of shares of Common Stock
indicated in the Transfer Notice as subject to purchase by the Transferee and
the denominator of which shall be the sum of (A) the total number of shares of
Common Stock then owned by the Transferor and its Affiliates plus (B) the total
number of Conversion Shares either then owned, or issuable upon exercise of
Warrants then owned, by all Warrant Securityholders plus (C) the total number of
shares of Common Stock (on an as-converted to common basis) held by all Current
Stockholders with pre-existing tag-along rights. Each Warrant Securityholder
shall have the right for a period of 20 days after the Transfer Notice is given,
to accept such offer in whole or in part, exercisable by delivering a written
notice to the Transferor and the Company within such 20-day period, stating
therein the number of shares of Common Stock (which may be the number of shares
set forth in the offer by the Transferor or Transferee, as the case may be, or a
portion thereof) to be sold by such Warrant Securityholder to the Transferor or
Transferee, as the case may be. Prior to the earlier of (x) the end of such
20-day period or (y) the acceptance or rejection by each Warrant Securityholder
of the Transferee's or Transferor's offer, as the case may be, neither the
Transferor nor its Affiliates will complete any sale of shares of Common Stock
to the Transferee. Thereafter, for a period of 60 days after the prohibition
under the preceding sentence shall have terminated, the Transferor may sell to
the Transferee for the consideration stated and on the terms set forth in the
Transfer Notice the shares of Common Stock stated in the Transfer Notice as
subject to purchase by the Transferee, provided that the Transferor or
Transferee, as the case may be, shall simultaneously purchase the number of
shares of Common Stock as calculated above from those Warrant Securityholders
who have accepted the Transferor's or Transferee's offer, as the case may be.
The provisions of this Section 2.4 shall not apply (i) to transfers between the
Transferor and any of its Affiliates or between Affiliates of the Transferor,
(ii) transfers to the Company or (iii) transfers pursuant to a public offering.
SECTION 2.5 COMMON STOCKHOLDERS' AGREEMENT. Common Stock Voting
Agreement. In addition to any other restrictions on transfer provided for
herein, the transfer of
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shares of Common Stock owned by the Stockholders shall be subject to the terms
and provisions of the Common Stockholder Agreement. The shares of Common Stock
owned by the Stockholders shall be subject to, and entitled to the benefits of,
the terms and provisions of the Common Stock Voting Agreement.
SECTION 2.6 RESTRICTIONS ON TRANSFER BY REGULATION Y HOLDERS. (a) No
Regulation Y Holder may transfer any Warrant or any Conversion Shares; provided
that such Regulation Y Holder may transfer such Warrant or Conversion Shares (i)
to the Company, (ii) to the public in an offering registered under the
Securities Act, (iii) in a transaction pursuant to Rule 144 or Rule 144A (or any
successor provisions) under the Securities Act or otherwise exempt from the
registration requirements of the Securities Act in which no single purchaser
receives an interest (treating any such Warrant as exercised and any Non-Voting
Common Stock as converted to Voting Common Stock) equivalent to more than two
percent of the outstanding Voting Common Stock or (iv) in a single transaction
to a third party who acquires at least a majority of the Voting Common Stock
without regard to the transfer of such Warrant or Conversion Shares. In the
event of a Regulatory Change, the effect of which is to permit such Regulation Y
Holder to transfer such Warrant or Conversion Shares in any other manner, the
foregoing proviso shall be deemed modified to permit a transfer of such Warrant
or Conversion Shares in such other manner.
(b) Nothing in Sections 2.4 or 2.5 of this Agreement shall require
any Regulation Y Holder to make a transfer of Warrants or Conversion Shares in a
manner not permitted by Section 2.6(a) (an "IMPERMISSIBLE TRANSFER"). If
Sections 2.4 or 2.5 of this Agreement would otherwise require any Regulation Y
Holder to make an Impermissible Transfer as a condition precedent to making a
transfer of Warrants or Conversion Shares in a manner permitted by Section
2.6(a) (a "PERMISSIBLE TRANSFER"), then such Regulation Y Holder shall not be
required to make such Impermissible Transfer as a condition precedent to making
such Permissible Transfer.
SECTION 2.7 ADJUSTMENT EVENT FEE. If (a) any Adjustment Event shall occur
within 365 days after the Optional Redemption Date and (b) the Consideration Per
Share for such Adjustment Event is greater than the Redemption Price Per Share
then, immediately upon the occurrence of such Adjustment Event, the Company
shall pay to each Warrant Securityholder an amount equal to the product of (x)
the number of shares of Non-Voting Common Stock issuable upon exercise of the
Warrants of such Warrant Securityholder that were redeemed and (y) the
difference between the Consideration Per Share for such Adjustment Event and the
Redemption Price Per Share paid to such Warrant Securityholder.
"ADJUSTMENT EVENT" means:
(a) the completion of an Initial Public Offering by the Company;
or
(b) 25% or more of the:
(i) Common Stock on a Fully Diluted Basis (as defined in the
Warrants) on an aggregate basis is sold, exchanged, transferred or
otherwise disposed of by the Company or any stockholder of the
Company (as part of a
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single sale or a series of sales) to any Person or group or Persons
other than an Affiliate of the Company or such stockholder, as the
case may be; or
(ii) capital stock of the Company issued and outstanding on
the Optional Redemption Date is sold, exchanged, transferred or
otherwise disposed of by the Company (as part of a single sale or a
series of sales) to any Person or group of Persons other than an
Affiliate of the Company or such stockholder, as the case may be; or
(iii) assets of the Company and its Subsidiaries on a
consolidated basis are, directly or indirectly, sold, exchanged,
leased, transferred or otherwise disposed of as an entirety or
substantially as an entirety (in one transaction or a series of
transactions) to any Person or group of Persons other than any
Affiliate of the Company.
"CONSIDERATION PER SHARE" means:
(i) in the case of any Adjustment Event described in clause
(a) or (b)(i) of the definition of Adjustment Event, the highest
consideration per share (if any) received by the Company or any
stockholder of the Company from the sale, exchange, transfer or
other disposition by it of Common Stock in connection with such
Adjustment Event; and
(ii) in the case of any other Adjustment Event, the highest
consideration per share of Common Stock that would be received by
any stockholder of the Company upon the disposition of all or
substantially all of the Common Stock or of the assets of the
Company (determined by reference to all of the consideration
received by the stockholders of the Company (as stockholders) for
that portion actually disposed of in connection with such Adjustment
Event, or which would be received by such shareholders if the
Company were liquidated immediately following receipt of the
consideration received by the Company in connection with such
Adjustment Event),
in each case net of underwriting commissions and other appropriate
costs and expenses deducted from such consideration.
"OPTIONAL REDEMPTION DATE" means the date of any redemption of the
Warrants pursuant to Section 5.3 of the Warrants.
"REDEMPTION PRICE PER SHARE" means the Optional Redemption Price (as
defined in the Warrants) which was paid to the Warrant Securityholders pursuant
to Section 5.3 of the Warrants (determined on a per share basis by reference to
the number of shares of Non-Voting Common Stock issuable upon exercise of the
Warrants that were redeemed) plus interest thereon from the Optional Redemption
Date to the date of the relevant Adjustment Event referred to in clause (a) or
(b) of Section 2.7 at a rate per annum announced by NationsBank, N.A. from time
to time as its prime rate (calculated on the basis of a 360-day year for the
actual number of days elapsed).
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SECTION 2.8 NO INCONSISTENT AGREEMENTS. The Company has not entered into
and will not enter into any registration rights agreement or similar
arrangements the performance by the Company of the terms of which would in any
manner conflict with, restrict or be inconsistent with the performance by the
Company of its obligations under this Agreement.
ARTICLE III
REGISTRATION RIGHTS
SECTION 3.1 INCIDENTAL REGISTRATION. (a) If the Company at any time
proposes to register any of its securities under the Securities Act (other than
by a registration on Form S-4 or S-8 or any successor or similar forms) whether
for its own account or for the account of the holder or holders of any Other
Shares, it will each such time give prompt written notice to all Warrant
Securityholders of its intention to do so and of such holders' rights under this
Section 3.1 Upon the written request of any such holder made within 20 days
after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such holder (which in the
case of an underwritten offering shall be not less than all of the Registrable
Securities then held by such holder) and the intended method of disposition
thereof), the Company will use its best efforts to effect the registration under
the Securities Act of all Registrable Securities which the Company has been so
requested to register by the holders thereof, to the extent requisite to permit
the disposition (in accordance with the intended methods thereof as aforesaid)
of the Registrable Securities so to be registered, by inclusion of such
Registrable Securities in the registration statement which covers the securities
which the Company proposes to register; provided that if, at any time after
giving written notice of its intention to register any securities and prior to
the effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason either not to register
or to delay registration of such securities, the Company may, at its election,
give written notice of such determination to each holder of Registrable
Securities and, thereupon, (i) in the case of a determination not to register,
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith), and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities, for the same period as the delay in registering such
other securities. The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities pursuant to this Section 3.1.
(b) If the Company at any time proposes to register any of its
securities under the Securities Act as contemplated by Section 3.1 and such
securities are to be distributed by or through one or more underwriters, the
Company will, if requested by any holder of Registrable Securities as provided
in this Section 3.1, use its best efforts to arrange for such underwriters to
include all the Registrable Securities to be offered and sold by such holder
among the securities to be distributed by such underwriters, provided that if
the managing underwriter of such underwritten offering shall inform the Company
and holders of the Registrable Securities requesting such registration and all
other holders of any other shares of Common Stock which shall have exercised, in
respect of such underwritten offering, registration rights comparable to the
rights under this Section 3.1 by letter of its belief that inclusion in such
distribution of all or a specified number of such securities proposed to be
distributed by such underwriters would
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interfere with the successful marketing of the securities being distributed by
such underwriters (such letter to state the basis of such belief and the
approximate number of such Registrable Securities and such Other Shares proposed
so to be registered which may be distributed without such effect), then the
Company may, upon written notice to all holders of such Registrable Securities
and holders of such Other Shares, reduce pro rata among all such holders (other
than an Initiating Holder) based on the number of shares then owned by all such
holders (if and to the extent stated by such managing underwriter to be
necessary to eliminate such effect), the number of such Registrable Securities
and Other Shares the registration of which shall have been requested by each
holder thereof so that the resultant aggregate number of such Registrable
Securities and Other Shares so included in such registration, together with the
number of securities to be included in such registration for the account of the
Company, shall be equal to the number of shares stated in such managing
underwriter's letter.
SECTION 3.2 REGISTRATION PROCEDURES. (a) If and whenever the Company is
required to effect the registration of any Registrable Securities under the
Securities Act as provided in Section 3.1, the Company shall, as expeditiously
as possible:
(i) prepare and (within 60 days after the end of the period
within which requests for registration may be given to the Company
or in any event as soon thereafter as possible) file with the
Commission the requisite registration statement to effect such
registration (including such audited financial statements as may be
required by the Securities Act) and thereafter use its best efforts
to cause such registration statement to become and remain effective;
provided further that the Company may discontinue any registration
of its securities which are not Registrable Securities at any time
prior to the effective date of the registration statement relating
thereto; provided further that before filing such registration
statement or any amendments thereto, the Company will furnish to the
counsel selected by the holders of Registrable Securities which are
to be included in such registration copies of all such documents
proposed to be filed, which documents will be subject to the review
of such counsel;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions
of the Securities Act with respect to the disposition of all
securities covered by such registration statement until the
expiration of 90 days after such registration statement becomes
effective;
(iii) furnish to each seller of Registrable Securities covered
by such registration statement and each underwriter, if any, of the
securities being sold by such seller such number of conformed copies
of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in such registration
statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as such seller and
underwriter, if any, may reasonably request in order
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to facilitate the public sale or other disposition of the
Registrable Securities owned by such seller;
(iv) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such
registration statement under blue sky or similar laws of such
jurisdictions as any seller thereof and any underwriter of the
securities being sold by such seller shall reasonably request, to
keep such registrations or qualifications in effect for so long as
such registration statement remains in effect, and take any other
action which may be reasonably necessary or advisable to enable such
seller and underwriter to consummate the disposition in such
jurisdictions of the securities owned by such seller, except that
the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this
subdivision (iv) be obligated to be so qualified, to subject itself
to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(v) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof to consummate
the disposition of such Registrable Securities;
(vi) furnish to each seller of Registrable Securities a
signed counterpart, addressed to such seller and the underwriters,
if any, of
(x) an opinion of counsel for the Company, dated the
effective date of such registration statement (and, if such
registration includes an underwritten public offering, an
opinion dated the date of the closing under the underwriting
agreement), reasonably satisfactory in form and substance to
such seller, and
(y) a "comfort" letter, dated the effective date of
such registration statement (and, if such registration
includes an underwritten public offering, a letter dated the
date of the closing under the underwriting agreement), signed
by the independent public accountants who have certified the
Company's financial statements included in such registration
statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein)
and, in the case of the accountants' letter, with respect to
events subsequent to the date of such financial statements, as
are customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to the underwriters in
underwritten public offerings of securities;
(vii) notify the holders of Registrable Securities and the
managing underwriter or underwriters, if any, promptly and confirm
such advice in writing promptly thereafter:
11
(A) when the registration statement, the prospectus or
any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed, and,
with respect to the registration statement or any
post-effective amendment thereto, when the same has become
effective;
(B) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or
for additional information;
(C) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration or the
initiation of any proceedings by any Person for that purpose;
and
(D) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue
sky laws of any jurisdiction or the initiation or threat of
any proceeding for such purpose;
(viii) notify each seller of Registrable Securities covered by
such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon
the Company's discovery that, or upon the happening of any event as
a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and at
the request of any such seller promptly prepare and furnish to such
seller and each underwriter, if any, a reasonable number of copies
of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(ix) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the registration statement
at the earliest possible moment;
(x) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least
twelve months, but not more than eighteen months, beginning with the
first full calendar quarter after the effective date of such
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
12
(xi) make available for inspection by a representative of the
holders of Registrable Securities participating in the offering, any
underwriter participating in any disposition pursuant to the
registration and any attorney or accountant retained by such selling
holders or underwriter (each, an "INSPECTOR"), all financial and
other records, pertinent corporate documents and properties of the
Company (the "RECORDS"), and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such Inspector in connection with such registration; provided that
the Company shall not be required to comply with this subdivision
(xi) if there is a reasonable likelihood, in the judgment of the
Company, that such delivery could result in the loss of any
attorney-client privilege related thereto; and provided further that
Records which the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors (other than to any holder
of Registrable Securities participating in the offering) unless (x)
such Records have become generally available to the public or (y)
the disclosure of such Records may be necessary or appropriate (A)
to comply with any law, rule, regulation or order applicable to any
such Inspectors or holder of Registrable Securities, (B) in response
to any subpoena or other legal process or (C) in connection with any
litigation to which such Inspectors or any holder of Registrable
Securities is a party (provided that the Company is provided with
reasonable notice of such proposed disclosure and a reasonable
opportunity to seek a protective order or other appropriate remedy
with respect to such Records);
(xii) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the
effective date of such Registration Statement;
(xiii) use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange on
which any of the Common Stock is then listed and, if not so listed,
to be listed on the NASD automated quotation system and, if listed
on the NASD automated quotation system, use its best efforts to
secure designation of all such Registrable Securities covered by
such registration statement as a NASDAQ "national market system
security" within the meaning of Rule 11Aa2-1 of the Securities and
Exchange Commission or, failing that, to secure NASDAQ authorization
for such Registrable Securities and, without limiting the generality
of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities with
the NASD; and
(xiv) use its best efforts to provide a CUSIP number for the
Registrable Securities, not later than the effective date of the
registration.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing for purposes of preparing the relevant
registration statement and amendments and supplements thereto.
13
(b) Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the occurrence of any event of the kind described in subdivision (viii) of
Section 3.2(a), such holder will forthwith discontinue such holder's disposition
of Registrable Securities pursuant to the registration statement relating to
such Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (viii) of Section
3.2(a). In the event the Company shall give any such notice, the periods
specified in subdivision (ii) of Section 3.2(a) shall be extended by the length
of the period from and including the date when each seller of any Registrable
Securities covered by such registration statement shall have received such
notice to the date on which each such seller has received the copies of the
supplemented or amended prospectus contemplated by subdivision (viii) of Section
3.2(a).
(c) If any such registration or comparable statement refers to any
holder of Registrable Securities by name or otherwise as the holder of any
securities of the Company, then such holder shall have the right to require, in
the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such holder.
SECTION 3.3 UNDERWRITTEN OFFERINGS. (a) If requested by the underwriters
for any underwritten offering by holders of Registrable Securities pursuant to a
registration requested under Section 3.1, the Company will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be satisfactory in substance and form to the Company, each such holder and
the underwriters, and to contain such representations and warranties by the
Company and such other terms as are generally prevailing in agreements of such
type, including, without limitation, indemnities to the effect and to the extent
provided in Section 3.4. The holders of the Registrable Securities will
cooperate with the Company in the negotiation of the underwriting agreement.
(b) Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities, if requested by the underwriters (and provided that
Company shall be under similar restrictions as set forth in Section 3.3(c), not
to sell, make any short sale of, loan, grant any option for the purchase of,
effect any public sale or distribution of or otherwise dispose of any equity
securities of the Company, during the ten days prior to and the 180 days after
the effective date of any underwritten registration pursuant to Section 3.1 has
become effective, except as part of such underwritten registration, whether or
not such holder participates in such registration, and except as otherwise
permitted by the managing underwriter of such underwriting (if any). Each holder
of Registrable Securities agrees that the Company may instruct its transfer
agent to place stop transfer notations in its records to enforce this Section
3.4(b).
(c) The Company agrees, if requested by the underwriters (x) not
to sell, make any short sale of, loan, grant any option for the purchase of,
effect any public sale or distribution of or otherwise dispose of its equity
securities or securities convertible into or exchangeable or exercisable for any
of such securities during the ten days prior to and the 180 days after the
effective date of any registration pursuant to Section 3.1 has become effective,
except (i) as part of such registration, (ii) pursuant to registrations on Form
S-4 or S-8 or any successor or similar forms thereto or (iii) as otherwise
permitted by the managing underwriter of such offering (if
14
any), and (y) to use all reasonable efforts to cause each holder of its equity
securities or any securities convertible into or exchangeable or exercisable for
any of such securities, in each case purchased from the Company at any time
after the date of this Agreement (other than in a public offering) to agree not
to sell, make any short sale of, loan, grant any option for the purchase of,
effect any public sale or distribution of or otherwise dispose of such
securities during such period except as part of such underwritten registration.
(d) No Person may participate in any underwritten offering
hereunder unless such Person (i) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved, subject to the terms
and conditions hereof, by the Person or a majority of the Persons entitled to
approve such arrangements and (ii) completes and executes all agreements,
questionnaires, indemnities and other documents (other than powers of attorney)
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters other than representations and warranties regarding such holder and
such holder's intended method of distribution.
SECTION 3.4 INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each holder of Registrable Securities whose Registrable Securities are
covered by any registration statement, its directors and officers and each other
Person, if any, who controls such holder within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which any such indemnified party may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, 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
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse each such indemnified
party for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such holder specifically for use in the preparation thereof; and provided,
further, that the Company shall not be liable in any such case with respect to
any preliminary prospectus to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof), or expense results from
the fact that such holder sold Registrable Securities to a person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the prospectus as then amended or
supplemented in any case where such delivery is required by the Securities Act
if the Company had previously furnished copies thereof to such holder and the
loss, claim, damage, liability (or action or proceeding in respect thereof), or
expense results from an untrue statement or omission of material fact contained
in the preliminary prospectus which was corrected in the prospectus as then
amended or supplemented.
15
In addition, the Company shall indemnify any underwriter of such offering and
each other Person, if any, who controls any such underwriter within the meaning
of the Securities Act in substantially the same manner and to substantially the
same extent as the indemnity herein provided to each Indemnified Party. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such holder or any such director, officer, underwriter
or controlling person and shall survive the transfer of such securities by such
holder.
(b) Each prospective seller of Registrable Securities hereunder
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in subdivision (a) of this Section 3.4) the Company, each director of
the Company, each officer of the Company and each other person, if any, who
controls the Company within the meaning of the Securities Act, with respect to
any statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereof, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such seller specifically for use in the preparation
of such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement. Any such indemnity shall remain in
full force and effect, regardless of any investigation made by or on behalf of
the Company or any such director, officer or controlling person and shall
survive the transfer of such securities by such seller. The amount payable by
any prospective seller of a Registrable Security with respect to the
indemnification set forth in this subsection (b) in connection with any offering
of securities will not exceed the amount of net proceeds received by such
prospective seller pursuant to such offering.
(c) Promptly after receipt by an indemnified party of notice of
the commencement of any action or proceeding involving a claim referred to in
the preceding subdivisions of this Section 3.4, such indemnified party will, if
a claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action; provided that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 3.4, except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, unless the named parties in such
action include both the indemnifying party and the indemnified party and counsel
for the indemnifying party determines in its good faith judgment that having
common counsel could reasonably be expected to present such counsel with a
conflict of interest, the indemnifying party shall be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified, to the extent that the indemnifying party may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of any judgment
or enter into any settlement of any such action which does not include 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. No indemnified party shall consent to entry of any judgment or enter
into any settlement of any such action the defense of
16
which has been assumed by an indemnifying party without the consent of such
indemnifying party.
(d) If the indemnification provided for in the preceding
subdivisions of this Section 3.4 is unavailable to an indemnified party in
respect of any expense, loss, claim, damage or liability referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such expense, loss, claim, damage or liability (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the holder or underwriter, as the case may be, on the other
from the distribution of the Registrable Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the holder or underwriter, as the case may be, on the other in
connection with the statements or omissions which resulted in such expense,
loss, damage or liability, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the holder or underwriter, as the case may be, on the other in connection
with the distribution of the Registrable Securities shall be deemed to be in the
same proportion as the total net proceeds received by the Company from the
initial sale of the Registrable Securities by the Company to the purchaser bear
to the net proceeds received by tine selling holder or the underwriting
discounts and commissions received by the underwriter, as the case may be. The
relative fault of the Company on the one hand and of the holder or underwriter,
as the case may be, on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission to state a material fact relates to information supplied by the
Company, by the holder or by the underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided that the foregoing contribution agreement shall
not inure to the benefit of any indemnified party if indemnification would be
unavailable to such indemnified party by reason of the proviso contained in the
first sentence of subdivision (a) of this Section 3.4, and in no event shall the
obligation of any indemnifying party to contribute under this subdivision (d)
exceed the amount that such indemnifying party would have been obligated to pay
by way of indemnification if the indemnification provided for under subdivisions
(a) or (b) of this Section 3.4 had been available under the circumstances.
The Company and the holders of Registrable Securities agree that it would
not be just and equitable if contribution pursuant to this subdivision (d) were
determined by pro rata allocation (even if the holders and any underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in the
immediately preceding paragraph and subdivision (c) of this Section 3.4. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, 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 subdivision (d), no holder of
Registrable Securities or underwriter shall be required to contribute any amount
in excess of the amount by which (i) in the case of any such holder, the net
proceeds received by such holder from the sale of Registrable Securities or (ii)
in the case of an underwriter, the total price at which the Registrable
Securities
17
purchased by it and distributed to the public were offered to the public
exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been 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 was not guilty of such
fraudulent misrepresentation.
SECTION 3.5 RULE 144: RULE 144A. (a) If the Company shall have filed a
registration statement pursuant to Section 12 of the Exchange Act or a
registration statement pursuant to the Securities Act, the Company will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder and will take
such further action as any holder of Registrable Securities 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 14.4 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
(b) The Company represents and warrants that as of the date
hereof, the Common Stock is not, and is not part of a class of securities that
is, listed on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in an automated inter-dealer quotation system. For so
long as any shares of Registrable Securities are restricted securities within
the meaning of Rule 144(a)(3) under the Securities Act, the Company covenants
and agrees that it shall, during any period in which it is not subject to
Section 13 or 15(d) of the Exchange Act, make available to any holder of
Registrable Securities in connection with the sale of such holder's Registrable
Securities and any prospective purchaser of Registrable Securities from such, in
each case upon request, the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities Act.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 NOTICES. All notices and other communications provided for
hereunder shall be dated and in writing and shall be deemed to have been given
(i) if given by telecopy, when such telecopy is transmitted to the telecopy
number specified in this Section and telephonic confirmation of receipt thereof
is obtained or (ii) if given by mail, prepaid overnight courier or any other
means, when received at the address specified in this Section or when delivery
at such address is refused. Such notices shall be addressed to the appropriate
party to the attention of the person who executed this Agreement at the address
or telecopy number set forth under such party's signature below (or to the
attention of such other person or to such other address or telecopy number as
such party shall have furnished to each other party in accordance with this
Section. 4.1).
SECTION 4.2 BINDING NATURE OF AGREEMENT. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto or
their successors in interest, except as expressly otherwise provided herein.
18
SECTION 4.3 DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
SECTION 4.4 SPECIFIC PERFORMANCE. Without limiting the rights of each
party hereto to pursue all other legal and equitable rights available to such
party for the other parties' failure to perform their obligations under this
Agreement, the parties hereto acknowledge and agree that the remedy at law for
any failure to perform their obligations hereunder would be inadequate and that
each of them, respectively, shall be entitled to specific performance,
injunctive relief or other equitable remedies in the event of any such failure.
SECTION 4.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS
OF THE STATE OF GEORGIA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY
GEORGIA STATE COURT SITTING IN XXX XXXX XX XXXXXXX XXX XXXXX XX XXXXXXX FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH SUCH PARTY
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. EACH OF THE PARTIES HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN
SECTION 4.1. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO
THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 4.6 COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute one and the same instrument.
SECTION 4.7 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
SECTION 4.8 ENTIRE AGREEMENT. This Agreement is intended by the parties
hereto as a final and complete expression of their agreement and understanding
in respect to the subject matter contained herein. This Agreement supersedes all
prior agreement and understandings, written or oral, between the parties with
respect to such subject matter.
19
SECTION 4.9 AMENDMENT AND WAIVER. Any provision of this Agreement may be
amended if, but only if, such amendment is in writing and is signed by the
Company and Stockholders and Warrantholders owning, or having Warrants
exercisable for, at least a majority of shares of Common Stock either then
outstanding or issuable upon the exercise of all outstanding Warrants, provided
that no such amendment may adversely affect the rights of any Warrant
Securityholder unless signed by such Warrant Securityholder. Any provision may
be waived if, but only if, such waiver is in writing and is signed by the party
or parties waiving such provision and for whose benefit such provision is
intended.
SECTION 4.10 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall
convey any rights upon any person or entity which is not a party or an assignee
of a party to this Agreement.
SECTION 4.11 CANCELLATION OF VHC WARRANT. NationsCredit expressly
acknowledges that the Warrant to purchase 280,000 shares of the Class B Common
Stock, par value $.01 per share, of VHC dated March 30, 1998 (the "VHC WARRANT")
has been surrendered to VHC in connection with the issuance of the Warrant
referenced herein, and that the VHC Warrant is now cancelled, null and void.
(Remainder of Page Intentionally Left Blank)
20
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the date first above written.
VISTACARE, INC.
By: /s/ X. X. Xxxxx
--------------------------
Title:
Address:
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Mr. L. Xxxxxxx Xxxxx
Chief Financial Officer
Facsimile: (000) 000-0000
21
BESSEMER VENTURE PARTNERS III L.P.
By: Deer III & Co. its general partner
By:
------------------------------------
Title:
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Facsimile: ( )
----------------------------
BVP III SPECIAL SITUATIONS L.P.
By: Deer III & Co., its general partner
By:
-------------------------------------
Title:
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Facsimile: ( )
-------------------------------
22
HEALTH CARE CAPITAL PARTNERS, L.P.
By: Xxxxxx Xxxxxxx Xxxxxxxx & Co., LLC,
its general partner
By:
----------------------------------------
Title:
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Facsimile: ( )
--------------------------------
HEALTH CARE EXECUTIVE
PARTNERS, L.P.
By: Xxxxxx Xxxxxxx Xxxxxxxx & Co., LLC,
its general partner
By:
-----------------------------------------
Title:
Address:
----------------------------------------
----------------------------------------
----------------------------------------
Facsimile: ( )
--------------------------------
23
--------------------------------------
Xxxxx X. Xxxxx
Address:
--------------------------------------
--------------------------------------
--------------------------------------
Facsimile: ( )
---------------------------
24
NATIONSCREDIT COMMERCIAL
CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Authorized Signatory
Address:
000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attn: Vista Hospice Care, Inc.
Account Officer
Facsimile: (000) 000-0000
25
