EXHIBIT 4.6
EXECUTION COPY
SELECT MEDICAL CORPORATION
$660,000,000
7 5/8% SENIOR SUBORDINATED NOTES DUE 2015
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
February 24, 2005
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
WACHOVIA CAPITAL MARKETS, LLC
CIBC WORLD MARKETS CORP.
PNC CAPITAL MARKETS, INC.
c/x Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
New York, New York 10080
EGL Acquisition Corp., a Delaware corporation ("EGL"),
proposes to issue and sell to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, X.X. Xxxxxx Securities Inc., Wachovia Capital Markets, LLC, CIBC
World Markets Corp. and PNC Capital Markets, Inc. (collectively, the "Initial
Purchasers"), upon the terms and subject to the conditions set forth in a
purchase agreement dated February 3, 2005 (the "Purchase Agreement"),
$660,000,000 aggregate principal amount of its 7 5/8% Senior Subordinated Notes
due 2015 (the "Securities") to be assumed by Select Medical Corporation, a
Delaware corporation (the "Company"), upon the closing of the Merger (defined
below) and to be jointly and severally guaranteed on a senior subordinated basis
following the closing of the Merger by the subsidiaries of the Company listed on
Schedule I and signatories hereto (the "Guarantors"). Capitalized terms used but
not defined herein shall have the meanings given to such terms in the Purchase
Agreement.
On October 17, 2004, EGL, the Company and EGL Holding Company,
a Delaware corporation ("Holdings"), entered into a Merger Agreement (the
"Merger Agreement") pursuant to which, on the date hereof, EGL will be merged
(the "Merger") with and into the Company with the Company continuing as the
surviving corporation and a wholly-owned subsidiary of Holdings.
As contemplated by the Purchase Agreement, EGL, the Company
and the Guarantors agree with the Initial Purchasers, for the benefit of the
holders (including the Initial Purchasers) of the Securities and the Exchange
Securities (as defined herein) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. Unless doing so would be
prohibited by applicable law, rules, regulations or policy of the Commission,
the Company and the Guarantors shall (i) prepare and, not later than 150 days
following the closing date of the Merger (the "Closing Date"), file with the
Commission a registration statement (as amended or supplemented from time to
time, the "Exchange Offer Registration Statement") on an appropriate form under
the Securities Act with re-
spect to a proposed offer to the Holders of the Securities (the "Registered
Exchange Offer") who are not prohibited by any applicable law, rules,
regulations or policy of the Commission from participating in the Registered
Exchange Offer to issue and deliver to such Holders, in exchange for the
Securities held by such Holders, a like aggregate principal amount of debt
securities of the Company (the "Exchange Securities") that are identical in all
material respects to the Securities, except for the transfer restrictions
relating to the Securities and the provisions related to the matters described
in Section 3 hereof, (ii) use their commercially reasonable efforts to cause the
Exchange Offer Registration Statement to become effective under the Securities
Act no later than 240 days after the Closing Date and the Registered Exchange
Offer to be consummated no later than 270 days after the Closing Date and (iii)
keep the Exchange Offer Registration Statement effective for not less than 30
days (or longer, if required by applicable law) after the date on which notice
of the Registered Exchange Offer is mailed to the Holders (such period being
called the "Exchange Offer Registration Period"). The Exchange Securities will
be issued under the Indenture or an indenture (the "Exchange Securities
Indenture") between the Company, the Guarantors and the Trustee or such other
bank or trust company that is reasonably satisfactory to the Initial Purchasers,
as trustee (the "Exchange Securities Trustee"), such indenture to be identical
in all material respects to the Indenture, except for the transfer restrictions
relating to the Securities (as described above) and the provisions related to
the matters described in Section 3 hereof.
Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder (a) is not an affiliate of the Company or an
Exchanging Dealer (as defined herein) not complying with the requirements of the
next sentence, (b) is not an Initial Purchaser holding Securities that have, or
that are reasonably likely to have, the status of an unsold allotment in an
initial distribution, (c) acquires the Exchange Securities in the ordinary
course of such Holder's business and (d) has no arrangements or understandings
with any person to participate in the distribution of the Exchange Securities
and is not prohibited by applicable law, rules, regulations or policy of the
Commission from participating in the Registered Exchange Offer) and to trade
such Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act (it being understood that the requirement
that an Exchanging Dealer or Initial Purchaser deliver the prospectus contained
in the Exchange Offer Registration Statement in connection with the sale of
Exchange Securities shall not result in such Exchange Securities being not
"freely transferable") and without material restrictions under the securities
laws of the several states of the United States. EGL, the Company, the
Guarantors, the Initial Purchasers and each Exchanging Dealer acknowledge that,
pursuant to current interpretations by the Commission's staff of Section 5 of
the Securities Act, each Holder that is a broker-dealer electing to exchange
Securities, acquired for its own account as a result of market-making activities
or other trading activities, for Exchange Securities (an "Exchanging Dealer"),
is required to deliver a prospectus containing substantially the information set
forth in Annex A hereto on the cover of such prospectus, in Annex B hereto in
the sections of such prospectus that set forth the details of the exchange offer
procedures and in Annex C hereto in the "Plan of Distribution" section of such
prospectus in connection with a sale of any such Exchange Securities received by
such Exchanging Dealer pursuant to the Registered Exchange Offer.
In connection with the Registered Exchange Offer, the Company
shall:
(a) mail to each Holder a copy of the prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents; provided, that
the Company shall only be required to mail such prospectus to Holders
of which the Company is aware after due inquiry;
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(b) keep the Registered Exchange Offer open for not less than
30 days (or longer, if required by applicable law) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York City time, on the last
business day on which the Registered Exchange Offer shall remain open;
and
(e) otherwise comply in all material respects with all laws
that are applicable to the Registered Exchange Offer.
Promptly after the close of the Registered Exchange Offer the
Company shall:
(a) accept for exchange all Securities validly tendered and
not validly withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as
the case may be, promptly to authenticate and deliver to each Holder,
Exchange Securities equal in principal amount to the Securities of such
Holder so accepted for exchange.
The Company and the Guarantors shall use their commercially
reasonable efforts to keep the Exchange Offer Registration Statement effective
and to amend and supplement the prospectus contained therein in order to permit
such prospectus to be used by all Exchanging Dealers subject to the prospectus
delivery requirements of the Securities Act for such period of time as such
persons must comply with such requirements in order to resell the Exchange
Securities; provided that such period shall not exceed 180 days. The Company
shall make such prospectus and any amendment or supplement thereto available to
any broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 180 days after the consummation of the
Registered Exchange Offer.
The Indenture or the Exchange Securities Indenture, as the
case may be, shall provide that the Securities and the Exchange Securities shall
vote and consent together on all matters as one class and that none of the
Securities or the Exchange Securities will have the right to vote or consent as
a separate class from one another on any matter.
Interest on each Exchange Security issued pursuant to the
Registered Exchange Offer will accrue from the last interest payment date on
which interest was paid on the Securities surrendered in exchange therefor or,
if no interest has been paid on the Securities, from the Closing Date.
Each Holder participating in the Registered Exchange Offer
shall be required to represent to the Company in writing that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the
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distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act, (iii) such Holder is not an affiliate of the Company or, if
it is such an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable,
(iv) if such Holder is not a broker-dealer, that it is not engaged in, and does
not intend to engage in, the distribution of the Exchange Securities and (v) if
such Holder is a broker-dealer, that it will receive Exchange Securities for its
own account in exchange for Securities that were acquired as a result of
market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company and
the Guarantors will ensure that (i) any Exchange Offer Registration Statement
and any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities Act and
the rules and regulations of the Commission thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain 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 and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
2. Shelf Registration. If (i) the Company and the Guarantors
are not permitted under applicable law, rules, regulations or Commission policy
to effect the Registered Exchange Offer as contemplated by Section 1 hereof , or
(ii) the Registered Exchange Offer is not for any other reason consummated prior
to the later of (x) the 60th day following the effectiveness of the Exchange
Offer Registration Statement and (y) the 270th day after the Closing Date, or
(iii) prior to the 30th day following completion of the Registered Exchange
Offer, any Initial Purchaser so requests in writing with respect to Securities
not eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it following the consummation of the Registered Exchange Offer
or a broker-dealer notifies us that it holds Securities acquired directly from
the Company or an Affiliate of the Company, or (iv) prior to the 30th day
following completion of the Registered Exchange Offer, any Holder notifies us
that, due to any change or development in law, rules, regulations or Commission
policy, (A) such Holder is not permitted to participate in the Registered
Exchange Offer or (B) such Holder will not receive freely transferable Exchange
Securities in exchange for tendered Securities (it being understood that a
requirement that a Holder deliver the prospectus contained in the Exchange Offer
Registration Statement in connection with the sale of Exchange Securities shall
not result in such Exchange Securities being not "freely transferable"), then
the following provisions shall apply:
(a) The Company and the Guarantors shall use their
commercially reasonable efforts to file prior to the later of (i) 270
days after the Closing Date and (ii) 120 days after the obligation to
file arises pursuant to this Section 2, and thereafter shall use their
commercially reasonable efforts to cause to be declared effective as
promptly as practical on or prior to 210 days after such filing, a
shelf registration statement on an appropriate form under the
Securities Act relating to the offer and sale of the Transfer
Restricted Securities (as defined below) by the Holders thereof from
time to time in accordance with the methods of distribution set forth
in such registration statement (as amended or supplemented from time to
time, hereafter, a "Shelf Registration Statement" and, together with
any Exchange Offer Registration Statement, a "Registration Statement")
provided, however, that no Holder (other than an Initial Purchaser)
shall be entitled to have the Securities or the Exchange Securities
held by it covered by the Shelf Registration Statement unless such
Xxxxxx agrees in writing to be bound by
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all the provisions of this Agreement applicable to such Holder (it
being agreed that each Initial Purchaser's agreement thereto is
evidenced by the execution of this Agreement by or on its behalf).
(b) The Company and the Guarantors shall use their
commercially reasonable efforts to keep the Shelf Registration
Statement continuously effective and available in order to permit the
prospectus forming part thereof to be used by Holders of Transfer
Restricted Securities for a period ending on the earlier of (i) two
years from the date of issuance of the Securities or such shorter
period that will terminate when all the Transfer Restricted Securities
covered by the Shelf Registration Statement have been sold pursuant
thereto and (ii) the date on which such Securities become eligible for
resale without restrictions pursuant to clauses (c), (e), (f) and (h)
of Rule 144 under the Securities Act (in any such case, such period
being called the "Shelf Registration Period").
(c) Notwithstanding any other provisions hereof, the Company
and the Guarantors will ensure that (i) any Shelf Registration
Statement and any amendment thereto and any prospectus forming part
thereof and any supplement thereto complies in all material respects
with the Securities Act and the rules and regulations of the Commission
thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information
included therein in reliance upon or in conformity with written
information furnished to the Company by or on behalf of any Holder
specifically for use therein (the "Holders' Information")) does not
contain 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 and (iii) any prospectus forming part
of any Shelf Registration Statement, and any supplement to such
prospectus (in either case, other than with respect to Holders'
Information), does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
3. Additional Interest.
(a) The parties hereto agree that the Holders of Transfer
Restricted Securities will suffer damages if the Company and the Guarantors fail
to fulfill their obligations under Section 1 or Section 2, as applicable, and
that it would not be feasible to ascertain the extent of such damages.
Accordingly, if (i) the Company and the Guarantors fail to file the Exchange
Offer Registration Statement on or before the 150th day after the Closing Date
or fail to file the Shelf Registration Statement on or prior to the later of the
270th day after the Closing Date and 120 days after the obligation to file the
Shelf Registration Statement arises under Section 2, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 240th day
after the Closing Date or the Shelf Registration Statement is not declared
effective on or before the 210th day after the filing of the Shelf Registration
Statement, (iii) the Registered Exchange Offer is not consummated on or prior to
the 300th day after the Closing Date and the Shelf Registration Statement is not
declared effective by the Commission on or prior to the 210th day after the
filing of the Shelf Registration Statement, or (iv) the Shelf Registration
Statement is filed and declared effective within the time periods required by
Section 2 but, thereafter ceases to be effective or available for the Holders of
Transfer Restricted Securities in connection with the offer and sale such
Transfer Restricted Securities during the period that the Company and the
Guarantors are obligated to maintain the effectiveness thereof (unless such
Shelf Registration Statement is succeeded by another Shelf Registration
Statement filed and declared effective within 30 days of the date such Shelf
Registration Statement ceased to be effective or such Shelf Registration
Statement otherwise becomes available again within 30 days (so long as the
aggregate number of days for
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which a Shelf Registration Statement has not been effective and available for
the Holders of Transfer Restricted Securities to offer and sell such Transfer
Restricted Securities does not exceed 45 days within any 90 day period or 60
days within any 12-month period) (each such event referred to in clauses (i)
through (iv), a "Registration Default"), the Company and the Guarantors will be
jointly and severally obligated to pay, as liquidated damages, additional
interest ("Additional Interest") to each Holder of Transfer Restricted
Securities as to which such Registration Default relates, with respect to the
first 90-day period (or portion thereof) while a Registration Default is
continuing immediately following the occurrence of such Registration Default, at
a rate equal to 0.25% per annum of the principal amount of such Transfer
Restricted Securities held by such Holder until (i) the applicable Registration
Statement is filed, (ii) the applicable Registration Statement is declared
effective, (iii) the Registered Exchange Offer is consummated, or (iv) the Shelf
Registration Statement again becomes effective and available, as the case may
be. The amount of Additional Interest payable to each Holder of Transfer
Restricted Securities shall increase by an additional 0.25% per annum of the
principal amount of Transfer Restricted Securities held by such Holder at the
end of each subsequent 90-day period (or portion thereof) while a Registration
Default is continuing until all Registration Defaults with respect to such
Transfer Restricted Securities have been cured, up to an aggregate maximum rate
of 1.00% per annum of the principal amount of such Transfer Restricted
Securities. Additional Interest shall be computed based on the actual number of
days elapsed during which any such Registration Default exists. Immediately
following the cure of a Registration Default, the accrual of Additional Interest
with respect to such Registration Default will cease and the interest rate will
revert to the original rate. As used herein, the term "Transfer Restricted
Securities" means each Security, until the earliest to occur of: (i) the date on
which such Security has been exchanged for a freely transferable Exchange
Security in the Registered Exchange Offer (it being understood that the
requirement that an Exchanging Dealer or Initial Purchaser deliver the
prospectus contained in the Exchange Offer Registration Statement in connection
with the sale of Exchange Securities shall not result in such Exchange
Securities being not "freely transferable"), (ii) the date on which such
Security has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement or (iii) the date on
which such Security is distributed to the public pursuant to Rule 144 under the
Securities Act or is saleable pursuant to Rule 144(k) under the Securities Act.
Notwithstanding anything to the contrary in this Section 3(a), neither the
Company nor the Guarantors shall be required to pay Additional Interest to a
Holder of Transfer Restricted Securities if such Holder failed to comply with
its obligations to make the representations set forth in the second to last
paragraph of Section 1 or failed to provide the information required to be
provided by it, if any, pursuant to Section 4(n). Notwithstanding any provision
herein to the contrary, Additional Interest shall not accrue on any Security
that is no longer a Transfer Restricted Security and the amount of Additional
Interest shall not increase over the rates set forth above because more than one
Registration Default has occurred and is pending.
(b) The Company shall notify the Trustee and the Paying Agent
under the Indenture immediately upon the happening of each and every
Registration Default. The Company and the Guarantors shall pay the additional
interest due on the Transfer Restricted Securities by depositing with the Paying
Agent (which may not be the Company for these purposes), in trust, for the
benefit of the Holders thereof, prior to 10:00 a.m., New York City time, on the
next interest payment date specified by the Indenture and the Securities, sums
sufficient to pay the additional interest then due. The additional interest due
shall be payable on each interest payment date specified by the Indenture and
the Securities to the record holder entitled to receive the interest payment to
be made on such date. Each obligation to pay additional interest shall be deemed
to accrue from and including the date of the applicable Registration Default.
(c) The parties hereto agree that the additional interest
provided for in this Section 3 constitutes a reasonable estimate of and are
intended to constitute the sole damages that will be
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suffered by Holders of Transfer Restricted Securities by reason of the failure
of any Registration Default.
4. Registration Procedures. In connection with any
Registration Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser
and counsel for the Initial Purchasers, to the extent requested in
writing, prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each supplement,
if any, to the prospectus included therein and shall use its
commercially reasonable efforts to reflect in each such document, when
so filed with the Commission, such comments as any Initial Purchaser
may reasonably propose; (ii) include the information set forth in Annex
A hereto on the cover, in Annex B hereto in the sections setting forth
the details of the exchange offer procedures and in Annex C hereto in
the "Plan of Distribution" section of the prospectus forming a part of
the Exchange Offer Registration Statement, and include the information
set forth in Annex D hereto in the Letter of Transmittal delivered
pursuant to the Registered Exchange Offer; and (iii) if requested in
writing by any Initial Purchaser, include the information required by
Items 507 or 508 of Regulation S-K, as applicable, in the prospectus
forming a part of the Exchange Offer Registration Statement.
(b) The Company shall advise each Initial Purchaser, each
Exchanging Dealer under any Exchange Offer Registration Statement that
has provided in writing to the Issuer a telephone or facsimile number
and address for notices, and the Holders (if applicable) who are named
as selling security holders in the prospectus forming part of a Shelf
Registration Statement and, if requested by any such person in writing,
confirm such advice in writing (which advice pursuant to clauses (ii) -
(v) hereof shall be accompanied by an instruction to suspend the use of
the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment
thereto has been filed with the Commission and when such
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments
or supplements to any Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of any Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the
making of any changes in any Registration Statement or the
prospectus included therein in order that they do not contain
any untrue statement of a material fact and do not omit to
state a material fact required to be stated therein or
necessary to make the statements therein (in case of the
prospectus, in light of the circumstances under which they
were made) not misleading.
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(c) The Company and the Guarantors will use commercially
reasonable efforts to obtain the withdrawal at the earliest possible
time of any order suspending the effectiveness of any Registration
Statement.
(d) The Company will furnish, upon written request, to each
Holder of Transfer Restricted Securities included within the coverage
of any Shelf Registration Statement, without charge, at least one
conformed copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules and, if any such Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Company will, during the Shelf Registration Period,
promptly deliver to each Holder of Transfer Restricted Securities
included within the coverage of any Shelf Registration Statement,
without charge, as many copies of the prospectus (including each
preliminary prospectus) included in such Shelf Registration Statement
and any amendment or supplement thereto as such Holder may reasonably
request in writing; and the Company consents, subject to the provisions
of this Agreement to the use of such prospectus or any amendment or
supplement thereto by each of the selling Holders of Transfer
Restricted Securities in connection with the offer and sale of the
Transfer Restricted Securities covered by such prospectus or any
amendment or supplement thereto.
(f) The Company will furnish to each Initial Purchaser and
each Exchanging Dealer, and to any other Holder who so requests in
writing, without charge, at least one conformed copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto,
including financial statements and schedules and, if any Initial
Purchaser or Exchanging Dealer or any such Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).
(g) The Company will, during the Exchange Offer Registration
Period or the Shelf Registration Period, as applicable, promptly
deliver to each Initial Purchaser, each Exchanging Dealer and such
other persons that are required to deliver a prospectus following the
Registered Exchange Offer, without charge, as many copies of the final
prospectus included in the Exchange Offer Registration Statement or the
Shelf Registration Statement and any amendment or supplement thereto as
such Initial Purchaser, Exchanging Dealer or other persons may
reasonably request in writing; and the Company and the Guarantors
consent to the use of such prospectus or any amendment or supplement
thereto by any such Initial Purchaser, Exchanging Dealer or other
persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement,
the Company and the Guarantors will use their commercially reasonable
efforts to register or qualify, or cooperate with the Holders of
Securities or Exchange Securities included therein and their respective
counsel in connection with the registration or qualification of, such
Securities or Exchange Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holder
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities or Exchange Securities covered by such
Registration Statement; provided that neither the Company nor any
Guarantor will be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action
which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
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(i) The Company and the Guarantors will cooperate with the
Holders of Securities or Exchange Securities to facilitate the timely
preparation and delivery of certificates representing Securities or
Exchange Securities to be sold pursuant to any Registration Statement
free of any restrictive legends and in such denominations and
registered in such names as the Holders thereof may request in writing
prior to sales of Securities or Exchange Securities pursuant to such
Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v)
occurs during the period for which the Company and the Guarantors are
required to maintain an effective Registration Statement, the Company
will promptly prepare and file with the Commission a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus or file any other required document so that, as thereafter
delivered to purchasers of the Securities or Exchange Securities from a
Holder, the prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the
Securities and the Exchange Securities, as the case may be, and provide
the applicable trustee with printed certificates for the Securities or
the Exchange Securities, as the case may be, in a form eligible for
deposit with The Depository Trust Company (it being further agreed
that, if requested in writing by any Initial Purchaser, subject to
applicable legal requirements, the Company shall use its commercially
reasonable efforts to cause any Transferred Restricted Securities
having the status of (or reasonably likely to have the status of) an
unsold allotment that are included in any Shelf Registration Statement
by any such Initial Purchaser to (i) bear the same CUSIP numbers as the
Exchange Securities and (ii) be governed by the same indenture as the
Exchange Securities and to vote as a single class with the Exchange
Securities on all matters under such indneture).
(l) The Company and the Guarantors will comply in all material
respects with all applicable rules and regulations of the Commission
and will make generally available to its security holders as soon as
practicable after the effective date of the applicable Registration
Statement an earning statement satisfying the provisions of Section
11(a) of the Securities Act; provided that in no event shall such
earning statement be delivered later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning
with the first month of the Company's first fiscal quarter commencing
after the effective date of the applicable Registration Statement,
which statement shall cover such 12-month period.
(m) The Company and the Guarantors will cause the Indenture or
the Exchange Securities Indenture, as the case may be, to be qualified
under the Trust Indenture Act as required by applicable law in a timely
manner.
(n) The Company may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration
Statement to furnish to the Company such information concerning the
Holder and the distribution of such Transfer Restricted Securities as
the Company may from time to time reasonably require for inclusion in
such Shelf Registration Statement, and the Company may exclude from
such registration the Transfer Restricted Securities of any Holder that
fails to furnish such information within a reasonable time after
receiving such request.
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(o) In the case of a Shelf Registration Statement, each Holder
of Transfer Restricted Securities to be registered pursuant thereto
agrees by acquisition of such Transfer Restricted Securities that, upon
receipt of any notice from the Company pursuant to Section 4(b)(ii)
through (v), such Holder will discontinue disposition of such Transfer
Restricted Securities until such Holder's receipt of copies of the
supplemental or amended prospectus contemplated by Section 4(j) or
until advised in writing (the "Advice") by the Company that the use of
the applicable prospectus may be resumed. If the Company shall give any
notice under Section 4(b)(ii) through (v) during the period that the
Company is required to maintain an effective Registration Statement
(the "Effectiveness Period"), such Effectiveness Period shall be
extended by the number of days during such period from and including
the date of the giving of such notice to and including the date when
each seller of Transfer Restricted Securities covered by such
Registration Statement shall have received (x) the copies of the
supplemental or amended prospectus contemplated by Section 4(j) (if an
amended or supplemental prospectus is required) or (y) the Advice (if
no amended or supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company
and the Guarantors shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and use commercially reasonable efforts to take all such other action,
if any, as Holders of a majority in aggregate principal amount of the
Securities and Exchange Securities being sold or the managing
underwriters (if any) shall reasonably request in order to facilitate
any disposition of Securities or Exchange Securities pursuant to such
Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Company
shall (i) make reasonably available for inspection by a representative
of, and Special Counsel (as defined below) acting for, Holders of a
majority in aggregate principal amount of the Securities and Exchange
Securities being sold and any underwriter participating in any
disposition of Securities or Exchange Securities pursuant to such Shelf
Registration Statement, all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries and (ii) use its commercially reasonable efforts to have
its officers, directors, employees, accountants and counsel make
reasonably available all relevant information reasonably requested by
such representative, Special Counsel or any such underwriter in
connection with such Shelf Registration Statement; provided, however,
that the foregoing inspection and information gathering shall be
coordinated on behalf of the such persons by the Special Counsel and
all such information shall be kept confidential by the recipients and
their representatives pursuant to a customary confidentiality agreement
for due diligence investigations by selling security holders in
offerings registered under the Securities Act to be executed by such
recipients prior to receiving such information.
(r) In the case of a Shelf Registration Statement, the Company
shall, if requested by Holders of a majority in aggregate principal
amount of the Securities and Exchange Securities being sold, their
Special Counsel or the managing underwriters (if any) in connection
with such Shelf Registration Statement, use its commercially reasonable
efforts to cause (i) its counsel to deliver an opinion relating to the
Shelf Registration Statement and the Securities or Exchange Securities,
as applicable, in customary form, (ii) its officers to execute and
deliver all customary documents and certificates reasonably requested
by Holders of a majority in aggregate principal amount of the
Securities and Exchange Securities being sold, their Special Counsel or
the managing underwriters (if any) and (iii) its independent public
accountants to provide a comfort letter or letters in customary form,
subject to receipt of appropriate documentation as contemplated, and
only if permitted, by Statement of Auditing Standards No. 72.
-10-
5. Registration Expenses. The Company and the Guarantors will
bear all expenses incurred in connection with the performance of their
obligations under Sections 1, 2 and 4 and the Company will reimburse the Initial
Purchasers and the Holders for the reasonable fees and disbursements of one firm
of attorneys (in addition to any local counsel) chosen by the Holders of a
majority in aggregate principal amount of the Securities and the Exchange
Securities to be sold pursuant to each Registration Statement (the "Special
Counsel") acting for the Initial Purchasers or Holders in connection therewith.
6. Indemnification.
(a) In the event of a Shelf Registration Statement or in
connection with any prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Company and each of the Guarantors shall jointly and severally
indemnify and hold harmless each Holder (including, without limitation, any such
Initial Purchaser or Exchanging Dealer), its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls such Holder within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 6 and
Section 7 as a Holder) from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, without
limitation, any loss, claim, damage, liability or action relating to purchases
and sales of Securities or Exchange Securities), to which that Holder may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement or any prospectus
forming part thereof or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and shall
reimburse each Holder promptly upon demand for any legal or other expenses
reasonably incurred by that Holder in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and the Guarantors
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Holders' Information; and
provided, further, that with respect to any such untrue statement in or omission
from any related preliminary prospectus, the indemnity agreement contained in
this Section 6(a) shall not inure to the benefit of any Holder from whom the
person asserting any such loss, claim, damage, liability or action received
Securities or Exchange Securities to the extent that such loss, claim, damage,
liability or action of or with respect to such Holder results from the fact that
both (A) a copy of the final prospectus was not sent or given to such person at
or prior to the written confirmation of the sale of such Securities or Exchange
Securities to such person and (B) the untrue statement in or omission from the
related preliminary prospectus was corrected in the final prospectus unless, in
either case, such failure to deliver the final prospectus was a result of
non-compliance by the Company with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each
Holder shall indemnify and hold harmless the Company, each Guarantor and their
respective affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the Company or
any Guarantor within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 6(b) and Section 7 as the
Company), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company
-11-
may become subject, whether commenced or threatened, under the Securities Act,
the Exchange Act, any other federal or state statutory law or regulation, at
common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any such Registration Statement
or any prospectus forming part thereof or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any Holders' Information furnished to the Company by
such Holder, and shall reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that no such Holder shall be liable
for any indemnity claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Securities or Exchange Securities
pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 6. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) 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, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or 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 of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party shall use commercially reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of
-12-
any such action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
7. Contribution. If the indemnification provided for in
Section 6 is unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Guarantors from
the offering and sale of the Securities, on the one hand, and a Holder with
respect to the sale by such Holder of Securities or Exchange Securities, on the
other, 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 and the Guarantors on the one hand and such Holder on the other with
respect to the statements or omissions that resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantors on the one hand and a Holder on the other with respect to such
offering and such sale shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Securities (before deducting expenses)
received by or on behalf of the Company as set forth in the table on the cover
of the Offering Memorandum, on the one hand, bear to the total proceeds received
by such Holder with respect to its sale of Securities or Exchange Securities, 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 the information
supplied by the Company and the Guarantors on the one hand or to any Holders'
Information supplied by such Holder on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 7 were
to be determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 7 shall be deemed to include, for purposes of this Section 7, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 7, an
indemnifying party that is a Holder of Securities or Exchange Securities shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities or Exchange Securities sold by such
indemnifying party to any purchaser exceeds the amount of any damages which such
indemnifying party has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
8. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by any Shelf Registration Statement are to be sold
in an underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be se-
-13-
lected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Securities included in such offering, subject to the consent
of the Company (which shall not be unreasonably withheld or delayed), and such
Holders shall be responsible for all underwriting commissions and discounts in
connection therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of Holders of a majority in aggregate principal
amount of the Securities and the Exchange Securities, taken as a single class.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Securities or Exchange Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Securities, the Exchange Securities being sold by such
Holders pursuant to such Registration Statement.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing next-day delivery:
(i) if to a Holder, at the most current address given
by such Holder to the Company in accordance with the
provisions of this Section 9(b), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture.
(ii) if to an Initial Purchaser, to it c/x Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated, 4 World Financial Center, New York, New York
10080, Attn: Xxxxxx Xxxxxxx.
(iii) if to EGL, the Company, or the Guarantors,
initially at Select Medical Corporation, 0000 Xxx Xxxxxxxxxx
Xxxx, X.X Xxx 0000, Xxxxxxxxxxxxx, XX 00000, Attn: Xxxxxxx X.
Xxxxxx, Senior V.P., General Counsel and Secretary, Facsimile:
(000) 000-0000; with a copy to Welsh, Carson, Xxxxxxxx &
Xxxxx, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxx X. Xxxxxxx, telecopier no.: (212)
893-9559 and a copy to Ropes & Gray LLP, 00 Xxxxxxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx, Attention: Xxxxxx X. Xxxxxxxxx, Esq.,
telecopier: (000) 000-0000.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; one business
day after being delivered to a next-day air courier; five business days after
being deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
-14-
The Initial Purchasers, on the one hand, or the Company and/or
the Guarantors, on the other hand by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(c) Successors And Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their respective successors
and assigns, including, without the need for an express assignment, subsequent
Holders of Securities and the Exchange Securities, and the indemnified persons
referred to in Section 6 hereof.
(d) Counterparts. This Agreement may be executed in any number
of counterparts (which may be delivered in original form or by telecopier) and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) the term "subsidiary" has the meaning set forth in the
Indenture and (c) except where otherwise expressly provided, the term
"affiliate" has the meaning set forth in Rule 405 under the Securities Act.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(h) Remedies. In the event of a breach by the Company or any
of the Guarantors (other than in respect of a Registration Default for which
liquidated damages under Section 3 shall be the exclusive remedy) or by any
Holder of any of their respective obligations under this Agreement, each Holder
or the Company or any Guarantor, as the case may be, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Except as provided above, the Company, each Guarantor and each Holder agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
further agree that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law would be
adequate.
(i) No Inconsistent Agreements. EGL, the Company and each
Guarantor represents, warrants and agrees that (i) it has not entered into, and
shall not, on or after the date of this Agreement, enter into, any agreement
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously
entered into any agreement which remains in effect granting any registration
rights with respect to any of its debt securities to any person and (iii)
without limiting the generality of the foregoing, without the written consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Transfer Restricted Securities, it shall not grant to any person the right to
request the Company to register any debt securities of the Company under the
Securities Act unless the rights so granted are not in conflict or inconsistent
with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Company nor the
Guarantors nor any of its security holders (other than the Holders of Transfer
Restricted Securities in such capacity)
-15-
shall have the right to include any securities of the Company in any Shelf
Registration or Registered Exchange Offer other than Transfer Restricted
Securities.
(k) Severability. Except as otherwise provided in Section 3,
the remedies provided herein are cumulative and not exclusive of any remedies
provided by law. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
-16-
Please confirm that the foregoing correctly sets forth the
agreement among the parties hereto.
Very truly yours,
EGL ACQUISITION CORP.
/s/ Xxxx X. Xxx
By: _______________________
Name: Xxxx X. Xxx
Title: Secretary
S-1
ACCEPTED AND AGREED TO:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
WACHOVIA CAPITAL MARKETS, LLC,
for themselves and as Representatives of the other
Initial Purchasers
BY: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED,
/s/ illegible
By: _____________________________________
Authorized Signatory
S-2
ACCEPTED AND AGREED TO AS OF THE DATE HEREOF
AFTER GIVING EFFECT TO THE MERGER:
SELECT MEDICAL CORPORATION
(AS SUCCESSOR BY MERGER TO EGL ACQUISITION CORP.)
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President,
General Counsel and Secretary
EACH OF THE GUARANTORS LISTED
ON SCHEDULE 1 HERETO (OTHER THAN
AS SEPARATELY SIGNED FOR BELOW)
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ARGOSY HEALTH, LLC
By: Xxxxxxx Rehab Centers, Inc., as managing member
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
GP THERAPY, L.L.C.
By: Georgia Physical Therapy, Inc.,
as managing member
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
S-3
XXXXXXX PROFESSIONAL SERVICES, LLC
By: Xxxxxxx Institute for Rehabilitation, Inc.,
as managing member
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SELECT MEDICAL PROPERTY VENTURES, LLC
By: Select Medical Corporation,
as managing member
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SELECT SOFTWARE VENTURES, LLC
By: Rehab Clinics, Inc., as managing member
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
S-4
WALTHAM PHYSICAL THERAPY
ASSOCIATES, INC.
/s/ Xxxx X. Xxxxxx
By: _____________________________________
Name: Xxxx X. Xxxxxx
Title: Vice President
S-5
SCHEDULE I
GUARANTORS
1. Affiliated Physical Therapists, Ltd.
2. American Transitional Hospitals, Inc.
3. Arizona Rehab Provider Network, Inc.
4. Athens Sports Medicine Clinic, Inc.
5. Ather Sports Injury Clinic, Inc.
6. Atlantic Rehabilitation Services, Inc.
7. Atra Services, Inc.
8. Buendel Physical Therapy, Inc.
9. C.E.R.-West, Inc.
10. C.O.A.S.T. Institute Physical Therapy, Inc.
11. CCISUB, Inc.
12. Cenla Physical Therapy & Rehabilitation Agency, Inc.
13. Center for Evaluation & Rehabilitation, Inc.
14. Center for Physical Therapy & Sports Rehabilitation, Inc.
15. CenterTherapy, Inc.
16. Champion Physical Therapy, Inc.
17. CMC Center Corporation
18. Community Rehab Centers of Massachusetts, Inc.
19. Xxxxxxx Physical Therapy Clinic, Inc.
20. Xxxxxxx Xxxxx & Associates, Ltd.
21. Elk County Physical Therapy, Inc.
22. Fine, Xxxxxx & Wah, Inc.
23. Xxxxxxx Xxxxxxx, Xx. & Xxxxxxx Xxxx Physical Therapists, Inc.
24. Gallery Physical Therapy Center, Inc.
25. Georgia Physical Therapy of West Georgia, Inc.
26. Georgia Physical Therapy, Inc.
27. Greater Sacramento Physical Therapy Associates, Inc.
28. Grove City Physical Therapy and Sports Medicine, Inc.
29. Gulf Breeze Physical Therapy, Inc.
30. Hand Therapy and Rehabilitation Associates, Inc.
31. Hand Therapy Associates, Inc.
32. Hangtown Physical Therapy, Inc.
33. Xxxxxx Physical Therapy, Inc.
34. Xxxxxx Physical Therapy Services, Inc.
35. Human Performance and Fitness, Inc.
36. Indianapolis Physical Therapy and Sports Medicine, Inc.
37. Intensiva Healthcare Corporation
38. Intensiva Hospital of Greater St. Louis, Inc.
39. Xxxxxx Sports Science Institute, Inc.
40. Xxxxxx Sportsmedicine Institute, Inc.
41. Kentucky Rehabilitation Services, Inc.
42. Xxxxxxx Assisted Living Corporation
43. Xxxxxxx Institute for Rehabilitation, Inc.
44. Xxxxxxx Occupational Medicine Centers, Inc.
45. Xxxxxxx Physical Therapy & Rehabilitation, Inc.
46. Xxxxxxx Rehab Centers, Inc.
47. Xxxxxxx Rehabilitation Corporation
48. Xxxxxxx Rehabilitation of Maryland, Inc.
49. Xxxxxxx Rehabilitation Services, Inc.
50. Xxxx X. Xxxxxxx, Inc.
51. Metro Rehabilitation Services, Inc.
52. Michigan Therapy Centre, Inc.
53. MidAtlantic Health Group, Inc.
54. Monmouth Rehabilitation, Inc.
55. New Mexico Physical Therapists, Inc.
56. Northside Physical Therapy, Inc.
57. NovaCare Occupational Health Services, Inc.
58. NovaCare Outpatient Rehabilitation East, Inc.
59. NovaCare Outpatient Rehabilitation of California, Inc.
60. NovaCare Outpatient Rehabilitation West, Inc.
61. NovaCare Outpatient Rehabilitation, Inc.
62. NovaCare Rehabilitation, Inc.
63. P.T. Services Company
64. P.T. Services Rehabilitation, Inc.
65. P.T. Services, Inc.
66. Xxxxx Xxxxxxx R.P.T. Physical Therapy Clinic, Orthopedic Rehabilitation
& Sports Medicine, Ltd.
67. Physical Rehabilitation Partners, Inc.
68. Physical Therapy Associates, Inc.
-2-
69. Physical Therapy Enterprises, Inc.
70. Physical Therapy Institute, Inc.
71. Physical Therapy Services of the Jersey Cape, Inc.
72. Pro Active Therapy of Ahoskie, Inc.
73. Pro Active Therapy of Greenville, Inc.
74. Pro Active Therapy of North Carolina, Inc.
75. Pro Active Therapy of Rocky Mount, Inc.
76. Pro Active Therapy of South Carolina, Inc.
77. Pro Active Therapy of Virginia, Inc.
78. Pro Active Therapy, Inc.
79. Professional Therapeutic Services, Inc.
80. Quad City Management, Inc.
81. RCI (Colorado), Inc.
82. RCI (Exertec), Inc.
83. RCI (Michigan), Inc.
84. RCI (S.P.O.R.T.), Inc.
85. RCI (WRS), Inc.
86. Rebound Oklahoma, Inc.
87. Redwood Pacific Therapies, Inc.
88. Rehab Managed Care of Arizona, Inc.
89. Rehab Provider Network - East I, Inc.
90. Rehab Provider Network - East II, Inc.
91. Rehab Provider Network - California, Inc.
92. Rehab Provider Network - Indiana, Inc.
93. Rehab Provider Network - New Jersey, Inc.
94. Rehab Provider Network - New York, Inc.
95. Rehab Provider Network of Arizona, Inc.
96. Rehab Provider Network of Colorado, Inc.
97. Rehab Provider Network of Florida, Inc.
98. Rehab Provider Network of Nevada, Inc.
99. Rehab Provider Network of New Mexico, Inc.
100. Rehab Provider Network of North Carolina, Inc.
101. Rehab Provider Network of Texas, Inc.
102. Rehab Provider Network - Ohio, Inc.
103. Rehab Provider Network - Pennsylvania, Inc.
104. Rehab Provider Network - Michigan, Inc.
105. Rehab/Work Hardening Management Associates, Ltd.
-3-
106. RehabClinics (GALAXY), Inc.
107. RehabClinics (PTA), Inc.
108. RehabClinics (SPT), Inc.
109. RehabClinics Abilene, Inc.
110. RehabClinics Dallas, Inc.
111. RehabClinics Pennsylvania, Inc.
112. RehabClinics, Inc.
113. S.T.A.R.T., Inc.
114. Select Air II, Inc.
115. Select Employment Services, Inc.
116. Select Hospital Investors, Inc.
117. Select Medical of Kentucky, Inc.
118. Select Medical of Maryland, Inc.
119. Select Medical of New York, Inc.
120. Select Medical Rehabilitation Services, Inc.
121. Select Provider Networks, Inc.
122. Select Rehabilitation Management Services, Inc.
123. Select Specialty Hospital - Akron/SHS, Inc.
124. Select Specialty Hospital - Alachua, Inc.
125. Select Specialty Hospital - Xxx Arbor, Inc.
126. Select Specialty Hospital - Arizona, Inc.
127. Select Specialty Hospital - Augusta/UH, Inc.
128. Select Specialty Hospital - Baton Rouge, Inc.
129. Select Specialty Hospital - Battle Creek, Inc.
130. Select Specialty Hospital - Beech Grove, Inc.
131. Select Specialty Hospital - Belleville, Inc.
132. Select Specialty Hospital - Bloomington, Inc.
133. Select Specialty Hospital - Brevard, Inc.
134. Select Specialty Hospital - Broward, Inc.
135. Select Specialty Hospital - Central Detroit, Inc.
136. Select Specialty Hospital - Charleston, Inc.
137. Select Specialty Hospital - Cincinnati, Inc.
138. Select Specialty Hospital - Colorado Springs, Inc.
139. Select Specialty Hospital - Columbus, Inc.
140. Select Specialty Hospital - Columbus/Grant, Inc.
141. Select Specialty Hospital - Columbus/University, Inc.
142. Select Specialty Hospital - Conroe, Inc.
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143. Select Specialty Hospital - Xxxxxxxxx, Inc.
144. Select Specialty Hospital - Dallas, Inc.
145. Select Specialty Hospital - Danville, Inc.
146. Select Specialty Hospital - Denver, Inc.
147. Select Specialty Hospital - Durham, Inc.
148. Select Specialty Hospital - Xxxxx, Inc.
149. Select Specialty Hospital - Erie, Inc.
150. Select Specialty Hospital - Escambia, Inc.
151. Select Specialty Hospital - Evansville, Inc.
152. Select Specialty Hospital - Flint, Inc.
153. Select Specialty Hospital - Fort Xxxxx, Inc.
154. Select Specialty Hospital - Fort Xxxxx, Inc.
155. Select Specialty Hospital - Gadsden, Inc.
156. Select Specialty Hospital - Greensboro, Inc.
157. Select Specialty Hospital - Greensburg, Inc.
158. Select Specialty Hospital - Grosse Pointe, Inc.
159. Select Specialty Hospital - Honolulu, Inc.
160. Select Specialty Hospital - Houston, Inc.
161. Select Specialty Hospital - Huntsville, Inc.
162. Select Specialty Hospital - Indianapolis, Inc.
163. Select Specialty Hospital - Xxxxxxx, Inc.
164. Select Specialty Hospital - Johnstown, Inc.
165. Select Specialty Hospital - Kalamazoo, Inc.
166. Select Specialty Hospital - Kansas City, Inc.
167. Select Specialty Hospital - Knoxville, Inc.
168. Select Specialty Hospital - Lancaster, Inc.
169. Select Specialty Hospital - Lansing, Inc.
170. Select Specialty Hospital - Xxx, Inc.
171. Select Specialty Hospital - Xxxx, Inc.
172. Select Specialty Hospital - Lexington, Inc.
173. Select Specialty Hospital - Little Rock, Inc.
174. Select Specialty Hospital - Longview, Inc.
175. Select Specialty Hospital - Louisville, Inc.
176. Select Specialty Hospital - Macomb County, Inc.
177. Select Specialty Hospital - Macon, Inc.
178. Select Specialty Hospital - Xxxxxx, Inc.
179. Select Specialty Hospital - McKeesport, Inc.
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180. Select Specialty Hospital - Memphis, Inc.
181. Select Specialty Hospital - Midland, Inc.
182. Select Specialty Hospital - Milwaukee, Inc.
183. Select Specialty Hospital - Minneapolis, Inc.
184. Select Specialty Hospital - Morgantown, Inc.
185. Select Specialty Hospital - Nashville, Inc.
186. Select Specialty Hospital - New Orleans, Inc.
187. Select Specialty Hospital - Newark, Inc.
188. Select Specialty Hospital - North Knoxville, Inc.
189. Select Specialty Hospital - Northeast Ohio, Inc.
190. Select Specialty Hospital - Northwest Detroit, Inc.
191. Select Specialty Hospital - Northwest Indiana, Inc.
192. Select Specialty Hospital - Ocean, Inc.
193. Select Specialty Hospital - Oklahoma City/East Campus, Inc.
194. Select Specialty Hospital - Oklahoma City, Inc.
195. Select Specialty Hospital - Omaha, Inc.
196. Select Specialty Hospital - Orange, Inc.
197. Select Specialty Hospital - Orlando, Inc.
198. Select Specialty Hospital - Palm Beach, Inc.
199. Select Specialty Hospital - Panama City, Inc.
200. Select Specialty Hospital - Paramus, Inc.
201. Select Specialty Hospital - Philadelphia/AEMC, Inc.
202. Select Specialty Hospital - Phoenix, Inc.
203. Select Specialty Hospital - Pine Bluff, Inc.
204. Select Specialty Hospital - Pittsburgh, Inc.
205. Select Specialty Hospital - Pittsburgh/UPMC, Inc.
206. Select Specialty Hospital - Pontiac, Inc.
207. Select Specialty Hospital - Quad Cities, Inc.
208. Select Specialty Hospital - Reno, Inc.
209. Select Specialty Hospital - Riverview, Inc.
210. Select Specialty Hospital - Saginaw, Inc.
211. Select Specialty Hospital - San Antonio, Inc.
212. Select Specialty Hospital - Sarasota, Inc.
213. Select Specialty Hospital - Savannah, Inc.
214. Select Specialty Hospital - Sioux Falls, Inc.
215. Select Specialty Hospital - South Dallas, Inc.
216. Select Specialty Hospital - Springfield, Inc.
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217. Select Specialty Hospital - Topeka, Inc.
218. Select Specialty Hospital - TriCities, Inc.
219. Select Specialty Hospital - Tulsa, Inc.
220. Select Specialty Hospital - Western Michigan, Inc.
221. Select Specialty Hospital - Western Missouri, Inc.
222. Select Specialty Hospital - Wichita, Inc.
223. Select Specialty Hospital - Wilmington, Inc.
224. Select Specialty Hospital - Winston-Salem, Inc.
225. Select Specialty Hospital - Wyandotte, Inc.
226. Select Specialty Hospital - Youngstown, Inc.
227. Select Specialty Hospital - Zanesville, Inc.
228. Select Specialty Hospitals, Inc.
229. Select Synergos, Inc.
230. Select Transport, Inc.
231. Select Unit Management, Inc.
232. SelectMark, Inc.
233. SemperCare Hospital of Central Illinois, Inc.
234. SemperCare Hospital of Fort Xxxxx, Inc.
235. SemperCare Hospital of Hartford, Inc.
236. SemperCare Hospital of Lakeland, Inc.
237. SemperCare Hospital of Lakewood, Inc.
238. SemperCare Hospital of Little Rock, Inc.
239. SemperCare Hospital of Mobile, Inc.
240. SemperCare Hospital of Pensacola, Inc.
241. SemperCare Hospital of Plainfield, Inc.
242. SemperCare Hospital of Sarasota, Inc.
243. SemperCare Hospital of Spokane, Inc.
244. SemperCare Hospital of Springfield, Inc.
245. SemperCare Hospital of Tallahassee, Inc.
246. SemperCare Hospital of Volusia, Inc.
247. SemperCare Hospital of Washington, Inc.
248. SemperCare, Inc.
249. SLMC Finance Corporation
250. South Jersey Physical Therapy Associates, Inc.
251. South Jersey Rehabilitation and Sports Medicine Center, Inc.
252. South Philadelphia Occupational Health, Inc.
253. Southpointe Fitness Center, Inc.
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254. Southwest Physical Therapy, Inc.
255. Southwest Therapists, Inc.
256. Sports & Orthopedic Rehabilitation Services, Inc.
257. Sports Therapy and Arthritis Rehabilitation, Inc.
258. Xxxxxxxxxx-Xxxxx, Inc.
259. The Center for Physical Therapy and Rehabilitation, Inc.
260. The Orthopedic Sports and Industrial Rehabilitation Network, Inc.
261. Xxxxxxxx, Inc.
262. Valley Group Physical Therapists, Inc.
263. Vanguard Rehabilitation, Inc.
264. Victoria Healthcare, Inc.
265. Wayzata Physical Therapy Center, Inc.
266. West Side Physical Therapy, Inc.
267. West Suburban Health Partners, Inc.
268. Wilpage, Inc.
269. Yuma Rehabilitation Center, Inc.
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ANNEX A
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 180 days after the
Expiration Date (as defined herein), it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution"
ANNEX B
Each broker-dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Securities received in exchange for Securities where such Securities were
acquired as a result of market-making activities or other trading activities.
The Company and the Guarantors have agreed that, for a period of 180 days after
the Expiration Date, they will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until _______________, 200_, all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.
The Company and the Guarantors will not receive any proceeds
from any sale of Exchange Securities by broker-dealers. Exchange Securities
received by broker-dealers for their own account pursuant to the Registered
Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Registered Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Securities may be deemed to
be an "underwriter" within the meaning of the Securities Act and any profit on
any such resale of Exchange Securities and any commission or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The Letter of Transmittal states that, by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
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For a period of 180 days after the Expiration Date the Company
and the Guarantors will promptly send additional copies of this Prospectus and
any amendment or supplement to this Prospectus to any broker-dealer that
requests such documents in the Letter of Transmittal. The Company and the
Guarantors have agreed to pay all expenses incident to the Registered Exchange
Offer (including the expenses of one counsel for the Holders of the Securities)
other than commissions or concessions of any broker-dealers and will indemnify
the Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Securities. If the undersigned is a broker-dealer that
will receive Exchange Securities for its own account in exchange for Securities
that were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
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