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EXHIBIT 4.4
Conformed Copy
REGISTRATION RIGHTS AGREEMENT
Dated as of November 21, 1997
relating to
$100,000,000 in Aggregate Principal Amount
of 6 % Convertible Subordinated
Notes due 2004
by and between
Res-Care, Inc.
and
NationsBanc Xxxxxxxxxx Securities, Inc.
X.X. Xxxxxxxx & Co., L.L.C.
and
Equitable Securities Corporation
as Initial Purchasers
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This Registration Rights Agreement (the "Agreement") is made and
entered into as of November 21, 1997, by and between Res-Care, Inc., a Kentucky
corporation (the "Company"), and NationsBanc Xxxxxxxxxx Securities, Inc., X.X.
Xxxxxxxx & Co., L.L.C. and Equitable Securities Corporation (the "Initial
Purchasers"), who will purchase $100,000,000 in aggregate principal amount of 6%
Convertible Subordinated Notes due 2004 (the "Notes") of the Company (excluding
up to an additional $15,000,000 aggregate principal amount that may be purchased
by the Initial Purchasers pursuant to their over-allotment option) pursuant to
the Purchase Agreement dated November 18, 1997 (the "Purchase Agreement"),
between the Company and the Initial Purchasers. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchasers set forth in the Purchase Agreement. All defined terms used but not
defined herein shall have the meanings ascribed to them in the Indenture (as
defined herein).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
CLOSING DATE: The date on which all the Notes are first sold by the
Company to the Initial Purchasers pursuant to the Purchase Agreement.
COMMISSION: The Securities and Exchange Commission.
COMMON STOCK: The Common Stock, no par value per share, of the
Company.
DAMAGES PAYMENT DATE: With respect to the Notes or the Common Stock,
as applicable, each Interest Payment Date as defined in the Indenture.
EFFECTIVENESS TARGET DATE: As defined in Section 4.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Notes to (i) certain "qualified institutional buyers" (as
such term is defined in Rule 144A under the Act), (ii) to certain persons in
offshore transactions in reliance on Regulation S under the Act and (iii) to a
limited number of "accredited investors" as defined in Rule 501(a)(1), (2), (3)
or (7).
HOLDER: As defined in Section 2(b) hereof.
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INDENTURE: The Indenture, to be dated as of November 21, 1997, among
the Company and PNC Bank, Kentucky, Inc., as trustee (the "Trustee"), pursuant
to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
INTEREST PAYMENT DATE: As defined in the Indenture.
NASD: National Association of Securities Dealers, Inc.
OFFERING MEMORANDUM: The Offering Memorandum, dated November 18, 1997,
and all amendments and supplements thereto, relating to the Notes and prepared
by the Company pursuant to the Purchase Agreement.
PERSON: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
PRELIMINARY PROSPECTUS: As defined in Section 3(g).
PROSPECTUS: The prospectus included in the Shelf Registration
Statement, as amended or supplemented by any Prospectus Supplement with respect
to the terms of the offering of any portion of the Transfer Restricted
Securities (as defined herein) covered by the Shelf Registration Statement and
by all other amendments and supplements to the prospectus, including
post-effective amendments, and all material which may be incorporated by
reference into such prospectus.
PROSPECTUS SUPPLEMENT: As defined in Section 5(b).
RECORD HOLDER: (i) With respect to any Damages Payment Date relating
to the Notes, each Person who is registered on the books of the Registrar as
the holder of Notes on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur and (ii) with respect to
any Damages Payment Date relating to the Common Stock, each Person who is a
holder of record of such Common Stock 15 days prior to the Damages Payment
Date.
REGISTRATION EXPENSES: As defined in Section 6(a).
SHELF REGISTRATION STATEMENT: As defined in Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Note and share of Common Stock of
the Company issuable upon conversion of a Note, until each such Note or share
(i) has been effectively registered under the Securities Act and disposed of in
accordance with the effective Shelf Registration Statement covering it, (ii) is
distributed to the public pursuant to Rule 144, (iii) may be sold or
transferred pursuant to Rule 144(k) (or any similar provisions then in force)
under the Securities Act or otherwise, or
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(iv) with respect to a Note, has been redeemed or repurchased by the Company as
provided in the Indenture.
UNDERWRITER: Any underwriter, placement agent, selling broker, dealer
manager, qualified independent underwriter or similar securities industry
professional.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: An offering in
which securities of the Company are sold to an Underwriter or with the
assistance of such Underwriter for reoffering to the public on a firm
commitment or best efforts basis.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
SECTION 3. SHELF REGISTRATION
(a) FILING OF REGISTRATION STATEMENT. The Company shall use its best
efforts to file or cause to be filed with the Commission on or prior to 60 days
after the Closing Date, a shelf registration statement pursuant to Rule 415 (as
may then be amended) under the Act (the "Shelf Registration Statement") on Form
S-1 or Form S-3, if the use of such form is then available and as determined by
the Company, to cover resales of Transfer Restricted Securities by the Holders
thereof who shall have timely provided the information required pursuant to
Section 3(g) hereof. The Company shall use its reasonable best efforts to cause
such Shelf Registration Statement to be declared effective by the Commission on
or prior to 120 days after the Closing Date. The Company shall use its
reasonable best efforts to keep such Shelf Registration Statement continuously
effective, supplemented and amended to the extent necessary to ensure that it
is available for resales of Transfer Restricted Securities for a period ending
two years from the effective date thereof or such shorter period that will
terminate when each of the Transfer Restricted Securities covered by the Shelf
Registration Statement shall cease to be a Transfer Restricted Security (as
further described in Section 5 below); provided that the Company shall not be
obligated to keep the Shelf Registration Statement effective as to any period
with respect to which the Company has received a written opinion, which has
been furnished to and is reasonably acceptable to the Initial Purchasers, from
the Company's counsel, Piper & Marbury L.L.P., or other counsel designated by
the Company and reasonably acceptable to the Initial Purchasers ("Company
Counsel"), to the effect that the Transfer Restricted Securities can be freely
offered and sold in the public markets without the continued effectiveness of
the Shelf Registration Statement. The Company further agrees to use its
reasonable best efforts to prevent the happening of any event that would cause
the Shelf
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Registration Statement to contain any 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 or to be not effective and usable
for resale of the Transfer Restricted Securities during the period that such
Shelf Registration Statement is required to be effective and usable.
Upon the occurrence of any event that would cause the Shelf
Registration Statement (i) to contain any 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 or (ii) to be not effective and
usable for resale of Transfer Restricted Securities during the period that such
Shelf Registration Statement is required to be effective and usable, the
Company upon knowledge of such an event, shall as promptly as practicable file
an amendment to the Shelf Registration Statement, in the case of clause (i),
correcting any such misstatement or omission, and in the case of either clause
(i) or (ii), use its best efforts to cause such amendment to be declared
effective and such Shelf Registration Statement to become usable as soon as
practicable thereafter.
Notwithstanding anything to the contrary in this Section 3, subject to
compliance with Sections 4 and 5(b), if applicable, the Company may prohibit
offers and sales of Transfer Restricted Securities pursuant to the Shelf
Registration Statement at any time if (A) (i) it is in possession of material
non-public information, (ii) the Board of Directors of the Company determines
based on advice of counsel (which counsel shall be experienced in securities
laws matters) that such prohibition is necessary in order to avoid a
requirement to disclose such material non-public information and (iii) the
Board of Directors of the Company determines in good faith that disclosure of
such material non-public information would not be in the best interests of the
Company and its stockholders or (B) the Company has made a public announcement
relating to an acquisition or business combination transaction including the
Company and/or one or more of its subsidiaries (i) that is material to the
Company and its subsidiaries taken as a whole and (ii) the Board of Directors
of the Company determines in good faith that offers and sales of Transfer
Restricted Securities pursuant to the Shelf Registration Statement prior to the
consummation of such transaction (or such earlier date as the Board of
Directors shall determine) is not in the best interests of the Company and its
stockholders or (C) (i) the Company has received any request by the Commission
or any other federal or state governmental authority for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information, (ii) the Commission or any other federal or state governmental
authority has issued any stop order suspending the effectiveness of a
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (iii) the Company has received any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Transfer Restricted Securities for sale in any jurisdiction or the
initiation or threatening of any proceedings for such purpose, (iv) upon the
existence of any fact or happening of any event which makes any statement of a
material fact in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
or which would require the making of any changes in the Registration Statement
or Prospectus in order that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading, and (v) the Company has determined that a post-effective
amendment to a Registration Statement would be appropriate (the period during
which any such prohibition of offers and sales of Transfer Restricted
Securities pursuant to the Shelf Registration Statement is in effect pursuant
to clause (A), (B) or (C) of this subparagraph (a) is referred to herein as a
"Suspension Period"). A Suspension Period shall commence on and include the
date on which the Company provides written notice to Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement that offers
and sales of Transfer Restricted Securities cannot be made thereunder in
accordance with this Section 3 and shall end three business days after the
earlier to occur of (x) the date on which such material information is
disclosed to the public or ceases to be material or the Company is able to so
comply with its disclosure obligations and Commission requirements or (y) 45
days after written notice is provided by the Company to the Holders of such
Suspension Period. Each notice shall state to the extent, if any, as is
practicable, an estimate of the expected duration of the Suspension Period.
(b) RESTRICTION ON SECURITIES INCLUDED IN REGISTRATION STATEMENT. None
of the Company nor any of its security holders (other than the Holders of
Transfer Restricted Securities in such capacity) shall have the right to
include any of the Company's securities in the Shelf Registration Statement.
(c) UNDERWRITTEN OFFERING. If the Holders of a majority of the
outstanding Transfer Restricted Securities so elect (with holders of Common
Stock constituting Transfer Restricted Securities being deemed to be Holders of
the aggregate principal amount of Notes converted into such Common Stock for
purposes of such calculation), an offering of Transfer Restricted Securities
pursuant to the Shelf Registration Statement may be effected in the form of an
Underwritten Offering. Such election shall be evidenced by a written notice
(the "Underwriting Notice") delivered to the Company. The Holders of the
Transfer Restricted Securities to be registered shall pay all underwriting
discounts and commissions of such Underwriters, and the Company shall be
obligated to pay all expenses described in Section 6 below.
(d) SELECTION OF UNDERWRITERS. If any of the Transfer Restricted
Securities covered by the Shelf Registration Statement are to be sold in an
Underwritten Offering, the Underwriter(s) that will administer the offering
will be selected by the Holders of a majority of the outstanding Transfer
Restricted Securities (with holders of Common Stock constituting Transfer
Restricted Securities being deemed to be Holders of the aggregate principal
amount of Notes converted into such Common Stock for purposes of such
calculation); provided, however, that such Underwriter(s) shall be reasonably
satisfactory to the Company.
(e) LOCK-UP BY HOLDER. Each Holder of Transfer Restricted Securities
agrees, upon the request of the Underwriter(s) in any Underwritten Offering,
not to effect any sale or distribution of securities of the Company of the same
class as the securities included in such Shelf Registration Statement, for a
period of up to 90 days beginning on the date any such Underwritten Offering
made pursuant to such Shelf Registration Statement commences, to the extent
timely notified in writing by such Underwriter(s).
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(f) COMPANY LOCK-UP. The Company agrees not to effect any public or
private offer, sale or distribution of securities of the same quality and
nature as any of the Transfer Restricted Securities to be registered in an
Underwritten Offering during the 90-day period (the "Lock-up Period") beginning
on the date any such Underwritten Offering made pursuant to the Shelf
Registration Statement commences, to the extent timely notified in writing by
the Underwriter(s) (except as part of such registration, if permitted, pursuant
to registrations on Forms S-4 or S-8 or any successor form to such Forms),
unless the Underwriter(s) shall consent in writing to a shorter period of time
or shall waive this provision; provided, however, that any such agreement shall
permit (A) the issuance by the Company of any shares of Common Stock issued to
employees of the Company or to any other eligible person pursuant to any
employee stock option plan, stock ownership plan, stock bonus plan or stock
compensation plan of the Company in effect on the date of such Underwritten
Offering, (B) the issuance by the Company of Common Stock upon the conversion
of securities, or the exercise of options or warrants, outstanding at the date
of such Underwritten Offering and (C) the issuance by the Company of any such
securities in connection with an acquisition transaction if the transferee or
transferees of such securities agree during the Lock-up Period not to publicly
offer or sell such securities without the prior written consent of such
Underwriter(s). Notwithstanding the foregoing, the Company shall be entitled to
suspend its lock-up obligations under this Section 3(f) for a period not to
exceed 180 days after the delivery of the Underwriting Notice in order to
complete an issuance and sale of securities in an underwritten offering,
private offering, acquisition or otherwise provided that it notifies the sender
of the Underwriting Notice within five business days of its receipt of such
notice.
(g) SELLING HOLDER INFORMATION. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless such Holder (a
"Selling Holder" or collectively, the "Selling Holders") furnishes to the
Company in writing, within 10 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus (a "Preliminary Prospectus") included therein. All information
provided to the Company by any Holder shall be accurate and complete in all
material respects. No Holder of Transfer Restricted Securities shall be
entitled to Liquidated Damages pursuant to Section 4 hereof unless such Holder
shall have timely provided all such reasonably requested information. After the
first such request for information by the Company, it shall be the sole
responsibility of each Holder to notify the Company of any change of address or
change of ownership of the Transfer Restricted Securities of such Holder.
SECTION 4. LIQUIDATED DAMAGES
If (i) the Shelf Registration Statement is not filed with the
Commission on or prior to 60 days after the Closing Date, (ii) the Shelf
Registration Statement has not been declared effective by the Commission within
120 days after the Closing Date (the "Effectiveness Target Date"), or (iii) the
Shelf Registration Statement is filed and declared effective but shall
thereafter cease to be effective (without being succeeded immediately by an
additional registration statement filed and declared effective) or useable for
resale for a period of time (including any Suspension Period) which shall
exceed 60 days in the aggregate in any of the one-year periods ending on the
first or second anniversaries of the Closing
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Date or which shall exceed 30 days in any calendar quarter within any of such
one-year periods (each such event referred to in clauses (i) through (iii), a
"Registration Default"), the Company will pay liquidated damages to each Holder
of Transfer Restricted Securities who has complied with such Holder's
obligations under this Agreement. The amount of liquidated damages payable
during any period during which a Registration Default shall have occurred and
be continuing is that amount which is equal to one-quarter of one percent (25
basis points) per annum per $1,000 principal amount of Notes or $2.50 per annum
per 35.4453 shares of Common Stock (subject to adjustment in the event of stock
splits, stock recombinations, stock dividends and the like) constituting
Transfer Restricted Securities for each subsequent 90-day period until the
applicable registration statement is filed and the applicable registration
statement is declared effective, or the Shelf Registration Statement again
becomes effective or usable, as the case may be, up to a maximum amount of
liquidated damages of one and one-quarter of one percent (125 basis points) per
annum per $1,000 principal amount of Notes or $12.50 per annum per 35.4453
shares (subject to adjustment as set forth above) of Common Stock constituting
Transfer Restricted Securities. The Company shall notify the Trustee and the
Initial Purchasers within one business day after each and every date on which a
Registration Default occurs. All accrued liquidated damages shall be paid to
Record Holders by wire transfer of immediately available funds or by federal
funds check by the Company on each Damages Payment Date. Following the cure of
all Registration Defaults, liquidated damages will cease to accrue with respect
to such Registration Default. Notwithstanding the foregoing, the parties hereto
agree that a Registration Default shall not be deemed to have occurred to the
extent that (i) the direct, proximate cause of said Registration Default was
the act or failure to act of one or more Holders, the Initial Purchasers or the
Underwriters and (ii) such act or failure to act is inconsistent with the
Holders', Initial Purchasers' or Underwriters' rights or obligations under this
Agreement.
All of the Company's payment obligations set forth in the preceding
paragraph which are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
security shall have been satisfied in full.
The parties hereto agree that the liquidated damages provided in this
Section 4 constitute a reasonable estimate of the damages that will be incurred
by Holders of Transfer Restricted Securities by reason of the failure of the
Shelf Registration Statement to be filed, declared effective or to remain
effective, as the case may be.
SECTION 5. REGISTRATION PROCEDURES
In connection with the Shelf Registration Statement, the Company will
use its best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution or disposition thereof, and pursuant thereto
the Company will as expeditiously as possible after the Closing Date:
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(a) FILING OF REGISTRATION STATEMENT. On or prior to the date 60 days
after the Closing Date, prepare and file with the Commission a Shelf
Registration Statement relating to the registration on Form S-1 or Form S-3, if
the use of such form is then available and as determined by the Company, for
the sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof and shall include all financial
statements required to be included or incorporated by reference therein. The
Company shall take such action as may be reasonably necessary so that (i) the
Shelf Registration Statement and any amendment thereto and any Prospectus
forming a part thereof and any supplement or amendment thereto complies in all
material respects with the Act and the rules and regulations thereunder, (ii)
the Shelf Registration and any amendment thereto (in either case, other than
with respect to written information furnished to the Company by or on behalf of
any Holder specifically for inclusion therein) 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 any statement therein not misleading and
(iii) the Prospectus and any supplement thereto (in either case, other than
with respect to such information from Holders), 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 light of the circumstances under which
they were made, not misleading.
The Company agrees to cooperate and assist in any filings required to
be made with the NASD and use its reasonable best efforts to cause such Shelf
Registration Statement to become effective and approved by such governmental
agencies or authorities as may be necessary to enable the Selling Holders to
consummate the disposition of such Transfer Restricted Securities; provided,
however, that before filing a Shelf Registration Statement or any Prospectus,
or any amendments or supplements thereto, the Company will furnish to the
Initial Purchasers, each Selling Holder who may have requested the same in
writing and the Underwriter(s), if any, copies of all such documents proposed
to be filed (except that the Company shall not be required to furnish any
exhibits to such documents, including those incorporated by reference, unless
so requested by an Initial Purchaser, Selling Holder or Underwriter in
writing), and the Company will not file any Shelf Registration Statement or
amendment thereto or any Prospectus or any supplement thereto to which (i) the
Initial Purchasers or the Underwriter(s), if any, shall reasonably object or
(ii) if there are no Underwriters, the Initial Purchasers or the Holders of a
majority of the outstanding Transfer Restricted Securities shall reasonably
object (with holders of Common Stock constituting Transfer Restricted
Securities being deemed to be Holders of the aggregate principal amount of
Notes converted into such Common Stock for purposes of such calculation), in
each such case within five business days after the receipt thereof. An Initial
Purchaser, Holder or Underwriter, if any, shall be deemed to have reasonably
objected to such filing if the Shelf Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
which misstatement or omission is specifically identified to the Company in
writing within such five business days.
(b) AMENDMENTS AND SUPPLEMENTS. The Company agrees to prepare and file
with the Commission such amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf Registration
Statement effective for the applicable period set forth in Section 3(a) hereof;
cause the Prospectus to be supplemented by any required supplement thereto (a
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"Prospectus Supplement"), and as so supplemented to be filed pursuant to Rule
424 under the Act, and to comply with the applicable provisions of Rules 424
and 430A under the Act in a timely manner; and comply with the provisions of
the Act with respect to the disposition of all securities covered by such Shelf
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Shelf Registration Statement, Prospectus or Prospectus Supplement.
(c) FILINGS OF AMENDMENTS OR SUPPLEMENTS IN CONNECTION WITH
UNDERWRITTEN OFFERINGS. The Company agrees, if requested in writing by the
Selling Holders of Transfer Restricted Securities, or if the Transfer
Restricted Securities are being sold in an Underwritten Offering, the
Underwriter(s) of such Underwritten Offering, promptly incorporate in the
Prospectus, any Prospectus Supplement or post-effective amendment to the Shelf
Registration Statement such information as the Underwriters and/or the Selling
Holders of Transfer Restricted Securities agree should be included therein
relating to the plan of distribution of the Transfer Restricted Securities,
including, without limitation, information with respect to the principal amount
of Notes and/or the number of shares of Common Stock being sold to such
Underwriter(s), the purchase price being paid therefor and any other terms with
respect to the offering of the Transfer Restricted Securities to be sold in
such offering; and make all required filings of such Prospectus, Prospectus
Supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be incorporated in such Prospectus, Prospectus
Supplement or post-effective amendment.
(d) COMMUNICATION WITH SECURITIES EXCHANGE COMMISSION; NOTICE OF
REQUIREMENT TO AMEND OR Supplement. The Company agrees to advise the Initial
Purchasers, the Underwriter(s), if any, and Selling Holders promptly and, if
requested by such Persons, to confirm such advice in writing, (i) when the
Prospectus or any Prospectus Supplement or post-effective amendment to the
Shelf Registration Statement has been filed, and, with respect to the Shelf
Registration Statement or any post-effective amendment thereto, when the same
has become effective, (ii) of any request by the Commission for amendments to
the Shelf Registration Statement or amendments or supplements to the Prospectus
or for additional information relating thereto, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Shelf
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (iv) if at any time the
representations and warranties of the Company contemplated by paragraph (m)(i)
below cease to be true and correct, and (v) of the existence of any fact and
the happening of any event that makes any statement of a material fact made in
the Shelf Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Shelf Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer Restricted
Securities under state securities or Blue Sky laws, the Company shall use its
reasonable best efforts to obtain the withdrawal or lifting of such order at
the earliest possible time.
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(e) COPIES OF DOCUMENTS INCORPORATED BY REFERENCE IN REGISTRATION
STATEMENT. The Company agrees promptly following the filing of any document
that is to be incorporated by reference into the Shelf Registration Statement
or the Prospectus subsequent to the initial filing of the Shelf Registration
Statement, provide copies of such document (excluding exhibits, unless
specifically requested by an Initial Purchaser or a Selling Holder in writing)
to the Initial Purchasers and each Selling Holder who may have requested the
same in writing.
(f) COPIES OF REGISTRATION STATEMENT AND AMENDMENTS. The Company
agrees to furnish to each Initial Purchaser, each Selling Holder and each of
the Underwriter(s), if any, without charge, at least one copy of the Shelf
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein
and all exhibits (excluding exhibits to documents incorporated by reference
therein unless requested by such Initial Purchaser, Selling Holder or
Underwriter).
(g) COPIES OF PRELIMINARY PROSPECTUS AND PROSPECTUS. The Company
agrees to deliver to each Initial Purchaser, each Selling Holder and each of
the Underwriter(s), if any, without charge, as many copies of any Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto as such
Persons may reasonably request; the Company consents to the use of any
Preliminary Prospectus and the Prospectus and any amendments or supplements
thereto by each of the Selling Holders and each of the Underwriter(s), if any,
in connection with the public offering and the sale of the Transfer Restricted
Securities covered by any Preliminary Prospectus and the Prospectus or any
amendments or supplements thereto; provided that such use of the Preliminary
Prospectus or Prospectus, and such offering and sale, conform to the Plan of
Distribution set forth in the Prospectus and comply with all applicable laws.
(h) BLUE SKY. The Company agrees, prior to any public offering of
Transfer Restricted Securities, to cooperate with the Selling Holders, the
Underwriter(s), if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the Selling Holders or
Underwriter(s) may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdiction of the Transfer
Restricted Securities covered by the Shelf Registration Statement; provided,
however, that the Company shall not be required (i) to register or qualify as a
foreign corporation where it is not now so qualified or (ii) to take any action
that would subject it to the service of process in suits, other than as to
matters and transactions relating to the Shelf Registration Statement, in any
jurisdiction where it is not now so subject.
(i) CERTIFICATES. The Company agrees to cooperate with the Selling
Holders and the Underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Securities to be
sold and not bearing any restrictive legends; and enable such Transfer
Restricted Securities to be in such denominations and registered in such names
as the Selling Holders or the Underwriter(s), if any, may request at least two
business days prior to any sale of Transfer Restricted Securities.
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(j) OTHER GOVERNMENT AGENCIES. The Company agrees to use its best
efforts to cause the Transfer Restricted Securities covered by the Shelf
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 or the Underwriter(s), if any, to consummate the disposition
of such Transfer Restricted Securities, subject to the proviso contained in
clause (h) above.
(k) POST-EFFECTIVE AMENDMENTS OR SUPPLEMENTS TO UPDATE. The Company
agrees to, if any fact or event contemplated by clause (d)(ii) through (v)
above shall exist or have occurred, prepare a post-effective amendment or
supplement to the Shelf Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein not misleading.
(l) CUSIP. The Company agrees to provide a CUSIP number for all
Transfer Restricted Securities not later than the effective date of the Shelf
Registration Statement and provide the Trustee under the Indenture and/or the
transfer agent for the Common Stock with certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company.
(m) UNDERTAKINGS IN CONNECTION WITH UNDERWRITTEN OFFERINGS. The
Company agrees to, in connection with an Underwritten Registration, enter into
such agreements (including an underwriting agreement) and take all such other
actions in connection therewith as may reasonably be required in order to
expedite or facilitate the disposition of the Transfer Restricted Securities
pursuant to the Shelf Registration Agreement (including without limitation,
providing in a supplement or post-effective amendment, such information
relating to the plan of distribution as is necessary, information concerning
the purchase price being paid and such other information with respect to the
offering as may be reasonably requested), and (i) make such representations and
warranties to the Selling Holders and the Underwriter(s), in form, substance
and scope as they may reasonably request and as are customarily made by issuers
to Underwriters in Underwritten Offerings and covering matters, including, but
not limited to, those set forth in the Purchase Agreement; (ii) obtain opinions
of counsel for the Company and updates thereof in customary form and covering
matters reasonably requested by the Underwriter(s) of the type customarily
covered in legal opinions to Underwriters in connection with Underwritten
Offerings addressed to each Selling Holder and the Underwriter requesting the
same and covering the matters as may be reasonably requested by such Selling
Holders and Underwriters; (iii) obtain "cold comfort" letters and updates
thereof from the Company's independent certified public accountants addressed
to the Selling Holders of Transfer Restricted Securities and the Underwriters
requesting the same, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters to Underwriters in
connection with Underwritten Offerings; (iv) set forth in full or incorporate
by reference in the underwriting agreement the indemnification provisions and
procedures of Section 7 hereof with respect to all parties to be indemnified
pursuant to said Section; and (v) deliver such documents and certificates as
may be reasonably requested by the Selling Holders of the Transfer Restricted
Securities being sold or the Underwriter(s) of such Underwritten Offering to
evidence compliance with clause (i) above and with any customary conditions
contained in the underwriting
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agreement entered into by the Company pursuant to this clause (m). The above
shall be done at or prior to each closing under such underwriting agreement, as
and to the extent required thereunder.
(n) DUE DILIGENCE. The Company agrees to make available at reasonable
times and in a reasonable manner to a representative of the Holders of the
Transfer Restricted Securities, any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement and any attorney or
accountant retained by such Selling Holders or any of the Underwriters,
representatives of the Company for discussion of customary due diligence
matters, and furnish such documents and financial and other information as may
be reasonably requested by such persons in connection with such due diligence;
provided, however, that such representatives, attorneys or accountants shall
agree to keep confidential (which agreement shall be confirmed in writing in
advance to the Company if the Company shall so request) all information,
records or documents made available to such persons which are not otherwise
available to the general public unless disclosure of such records, information
or documents is required by court or administrative order (of which the Company
shall have been given prior notice and an opportunity to defend) after the
exhaustion of all appeals therefrom, and to use such information obtained
pursuant to this provision only in connection with the transaction for which
such information was obtained, and not for any other purpose.
(o) COMPLIANCE WITH RULES AND REGULATIONS. The Company agrees to
otherwise use its reasonable best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its security
holders, as soon as practicable, in a regular filing on Form 10-Q or Form 10-K,
a consolidated earnings statement, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act, for the twelve-month period
(i) commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to Underwriters in a firm commitment or best efforts
Underwritten Offering or (ii) if not sold to Underwriters in such an offering,
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of the Shelf Registration Statement.
(p) INDENTURE. The Company agrees to the extent required by the TIA to
cause the Indenture to be qualified under the TIA, and, in connection
therewith, cooperate with the Trustee and the Holders to effect such changes to
the Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its best efforts to
cause the Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner.
(q) LISTING, ETC. The Company agrees to cause all Transfer Restricted
Securities covered by the Shelf Registration Statement to be listed on each
securities exchange or quotation system on which similar securities issued by
the Company are then listed if requested by the Holders of a majority of the
outstanding Transfer Restricted Securities (with holders of Common Stock
constituting Transfer Restricted Securities being deemed to be Holders of the
aggregate principal amount of Notes converted into such Common Stock for
purposes of such calculation) or the Underwriters, if any; cause the Notes
covered by the Shelf Registration Statement to be rated with the appropriate
rating agencies, if so
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requested by the Holders of a majority in aggregate principal amount of such
Notes then outstanding or the Underwriters.
(r) NASD. The Company agrees to cooperate and assist in any filings
required to be made with the NASD and in the performance of any due diligence
investigation by any Underwriter (including any "qualified independent
Underwriter" that is required to be retained in accordance with the rules and
regulations of the NASD).
(s) AGREEMENTS OF HOLDERS. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading or necessary to cause such Shelf Registration Statement not to omit
a material fact with respect to such Holder necessary in order to make the
statements therein not misleading.
Each Holder agrees by acquisition of such Transfer Restricted
Securities that, upon receipt of any notice from the Company of the existence
of any fact of the kind described in Section 5(d)(v) hereof (an "Amendment
Notice"), such Holder will forthwith discontinue disposition of Transfer
Restricted Securities until such Holder's receipt of (i) copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof, or
until counsel for the Company shall have determined that such disclosure is not
required due to subsequent events, (ii) notice in writing from the Company that
the use of the Prospectus may be resumed, and (iii) copies of any additional or
supplemental filings with respect to the Prospectus. If so directed by the
Company, each Holder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Transfer Restricted Securities current at the time
of receipt of such notice. In the event Company shall give any such notice, the
time period regarding the effectiveness of the Shelf Registration Statement set
forth in Section 3(a) hereof shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 5(d)(v) hereof to and including the date when each Selling Holder
covered by such Shelf Registration Statement shall have received the copies of
the supplemented or amended Prospectus contemplated by Section 5(k) hereof or
shall have received the Advice and any additional or supplemental filings with
respect to the Prospectus.
SECTION 6. REGISTRATION EXPENSES
(a) EXPENSES OF COMPANY. All expenses incident to the Company's
performance of or compliance with this Agreement (the "Registration Expenses")
will be borne by the Company, regardless of whether a Shelf Registration
Statement becomes effective, including without limitation:
(i) all registration and filing fees and expenses (including
filings made with the NASD);
(ii) fees and expenses of compliance with federal securities
or state blue sky laws;
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(iii) expenses of printing (including, without limitation,
expenses of printing or engraving certificates for the Transfer Restricted
Securities in a form eligible for deposit with Depository Trust Company and of
printing the Prospectus and any Preliminary Prospectus), messenger and delivery
services and telephone;
(iv) fees and disbursements of counsel for the Company and
for the Holders of the Transfer Restricted Securities (subject to the
provisions of Section 6(b) hereof);
(v) fees and disbursements of all independent certified
public accountants of the Company (including the expenses of any special audit
and "cold comfort" letters required by or incidental to the preparation and
filing of a Shelf Registration Statement and Prospectus and the disposition of
Transfer Restricted Securities); and
(vi) fees and expenses of listing the Transfer Restricted
Securities on any securities exchange or quotation system in accordance with
Section 5(r) hereof.
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, rating
agency fees and the fees and expenses of any Person, including special experts,
retained by the Company. The Company shall not be responsible for commissions,
fees and discounts of brokers, dealers and agents. The Holders of Transfer
Restricted Securities shall bear the expense of any broker's commission or
Underwriter's discount or commission.
(b) COUNSEL TO HOLDERS. In connection with the Shelf Registration
Statement, the Company will reimburse the Holders of Transfer Restricted
Securities being registered pursuant to such Shelf Registration Statement for
the reasonable fees and disbursements of not more than one counsel chosen by
the Holders of a majority of the outstanding Transfer Restricted Securities
(with holders of Common Stock constituting Transfer Restricted Securities being
deemed to be Holders of the aggregate principal amount of Notes converted into
such Common Stock for purposes of such calculation) which fees and
disbursements shall not exceed $15,000 in the aggregate.
Notwithstanding the provisions of this Section 6(b), each Holder of
Transfer Restricted Securities shall pay all Registration Expenses to the
extent required by applicable law, and if the Shelf Registration Statement is
to be effected in the form of an Underwritten Offering, the discounts and
commissions of the Underwriters.
SECTION 7. INDEMNIFICATION
(a) COMPANY INDEMNIFICATION. The Company agrees to indemnify and
hold harmless (i) each of the Initial Purchasers, (ii) each Holder, (iii) each
person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) any of the Initial Purchasers or any
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Holder (any of the persons referred to in this clause (iii) being hereinafter
referred to as a "controlling person") and (iv) the respective officers,
directors, partners, employees, representatives and agents of any of the
Initial Purchasers or any Holder or any controlling person (any person referred
to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as a
"Non-Company Indemnitee"), to the fullest extent lawful, from and against any
and all losses, claims, damages, liabilities, reasonable expenses and judgments
arising out of or based on any untrue statement or alleged untrue statement of
a material fact contained in the Shelf Registration Statement, Prospectus or
Preliminary Prospectus (or any amendments or supplements thereto), including
any document incorporated by reference therein, or arising out of or based on
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,
except, with respect to any Non-Company Indemnitee, insofar as such losses,
claims, damages, liabilities, expenses or judgments (1) are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by such Non-Company Indemnitee
expressly for use therein (which shall include written information provided by
such Non-Company Indemnitee pursuant to Section 3(g) herein expressly for use
therein), or (2) with respect to any Preliminary Prospectus, result from the
fact that such Non-Company Indemnitee sold Transfer Restricted Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final Prospectus, as amended or
supplemented, if the Company shall have previously furnished copies thereof to
such Non-Company Indemnitee in accordance with this Agreement and the final
Prospectus, as amended or supplemented, would have corrected such untrue
statement or omission. The indemnification in this subsection (a) shall be in
addition to any liability which the Company may have at common law or
otherwise.
The Company also agrees to indemnify or contribute to losses of, as
provided in Section 7(d), any underwriters of Transfer Restricted Securities
registered under the Shelf Registration Statement, their officers and directors
and each Person, if any, who controls any such underwriter (within the meaning
of the Act) on substantially the same basis as that of the indemnification of
the Holders provided in this Section 7(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 5(m) hereof.
(b) INDEMNIFICATION PROCEDURES. In case any action shall be brought
against any Non-Company Indemnitee, based upon the Shelf Registration
Statement, Prospectus, or Preliminary Prospectus (or any amendments or
supplements thereto), and with respect to which indemnity may be sought against
the Company, such Non-Company Indemnitee shall promptly notify the Company in
writing and the Company shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses; provided, however,
that the omission so to notify the Company shall not relieve the Company from
any liability that it may have to any Non-Company Indemnitee (except to the
extent that the Company is materially prejudiced or otherwise forfeits
substantive rights or defenses by reason of such failure). Such Non-Company
Indemnitee shall have the right to employ separate counsel in any such action
and participate in the defense thereof, but the fees and expenses of counsel
shall be paid by such Non-Company Indemnitee, unless (i) the employment of such
counsel shall have been specifically authorized in writing by the Company, (ii)
the Company shall have failed to assume the defense and employ counsel or (iii)
the named parties to any such action (including any
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impleaded parties) include both such Non-Company Indemnitee and the Company and
it would be inappropriate for the same counsel to represent such Non-Company
Indemnitee and the Company (in which case the Company shall not have the right
to assume the defense of such action on behalf of such Non-Company Indemnitee,
it being understood, however, that the Company shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for the Non-Company
Indemnitees, which firm shall be designated in writing by the Non-Company
Indemnitees and shall be subject to the Company's approval, not to be
unreasonably withheld, and whose fees and expenses reasonably incurred shall be
reimbursed as they are incurred). The Company shall not be liable for any
settlement of any such action effected without the written consent of the
Company, which consent shall not be unreasonably withheld or delayed, and if
settled with the written consent of the Company, the Company agrees to
indemnify and hold harmless any Non-Company Indemnitee from and against any
amounts payable pursuant to such written consent in connection with such
settlement. The Company shall not, without the prior written consent of such
Non-Company Indemnitee, effect any settlement of any pending or threatened
proceeding in respect of which such Non-Company Indemnitee is or could have
been a party and indemnity could have been sought hereunder by such Non-Company
Indemnitee, unless such settlement includes an unconditional release of such
Non-Company Indemnitee from all liability on claims that are the subject matter
of such proceeding.
(c) INDEMNIFICATION BY HOLDER. Each Holder of Transfer Restricted
Securities agrees to indemnify and hold harmless (i) the Company, (ii) each of
the Initial Purchasers, (iii) each other Holder, (iv) any person controlling
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
the Company, any of the Initial Purchasers and each other Holder and (v) the
respective officers, directors, partners, employees, representatives and agents
of each of the parties referred to in clauses (i), (ii), (iii) and (iv), to the
same extent as the foregoing indemnity from the Company to each of the
Non-Company Indemnitees, but only with respect to claims and actions based on
information relating to such Holder that was furnished in writing by such
Holder expressly for use in the Shelf Registration Statement or Prospectus (or
any amendment or supplement thereto) (including without limitation the
information provided in writing by a Holder pursuant to Section 3(g) expressly
for use therein). In no event shall the liability of any Holder hereunder be
greater in amount than the dollar amount of the net proceeds received by such
Holder upon the sale of the Transfer Restricted Securities giving rise to such
indemnification obligation.
(d) CONTRIBUTION. If the indemnification provided for in this Section
7 is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to herein, 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 losses,
claims, damages, liabilities and judgments in such proportion as is appropriate
to reflect the relative fault of the indemnifying party, on the one hand, and
the indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party, on the one hand, and the indemnified party, on
the other hand, shall be determined by reference to, among other things,
whether
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the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the indemnifying party, on the one hand, or the indemnified party, on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The indemnity and
contribution obligations of each indemnifying party set forth herein shall be
in addition to any liability or obligation such indemnifying party may
otherwise have to any Indemnified Party, including under this Agreement.
The Company, each of the Initial Purchasers and each Holder of
Transfer Restricted Securities agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The losses, claims, damages, liabilities or judgments of an
indemnified party 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 prior to the indemnifying
party's assumption of the defense thereof or subsequent thereto to the extent
permitted by the second sentence of Section 7(b) hereof. Notwithstanding the
provisions of this Xxxxxxx 0, xxxx of the Holders shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total amount of net process received by such Holder with respect to the sale of
Transfer Restricted Securities exceeds the amount of any damages which such
Holder has otherwise been required to pay by reason of such 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant
to this Section 7(d) are several in proportion to the respective principal
amount of Notes held by each of the Holders hereunder and not joint.
SECTION 8. RULE 144A AND RULE 144
(a) RULE 144A. The Company hereby agrees with each Holder, for so long
as any of the Notes or shares of Common Stock that are Transfer Restricted
Securities remain outstanding and during any such period in which the Company
is not subject to Section 13 or 15(d) of the Exchange Act, to make available to
any Initial Purchaser or any beneficial owner of the Notes or shares of such
Common Stock in connection with any sale thereof and any prospective purchaser
of such Notes or Common Stock from such Initial Purchaser or beneficial owner,
the information required by Rule 144A(d)(4) under the Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A.
(b) RULE 144. The Company shall use commercially reasonable efforts to
file the reports required to be filed by it under the Act and the Exchange Act
in a timely manner and covenants that it will take such further action as any
Holder of Transfer Restricted Securities may reasonably request, all to the
extent required from time to time, to enable such Holder to sell securities
without registration under the Act within the limitation of the exemptions
provided by Rule 144.
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SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Offering hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements, (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of
such underwriting arrangements and (c) furnishes the Company in writing
information in accordance with Section 3(g) and agrees to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act to the extent contemplated by
Section 7(c).
SECTION 10. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering in accordance with Section 3(c) herein.
In any such Underwritten Offering, the Underwriter(s) that will administer the
offering will be selected by the Holders of the Transfer Restricted Securities
included in such offering in the manner specified in Section 3(c); provided,
however, that such Underwriters must be reasonably satisfactory to the Company.
SECTION 11. MISCELLANEOUS
(a) REMEDIES. Each party agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders of Transfer
Restricted Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders of Transfer Restricted
Securities hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's securities under any
other agreements in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, 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 of the outstanding Transfer Restricted Securities (with holders
of Common Stock constituting Transfer Restricted Securities being deemed to be
Holders of the aggregate principal amount of Notes converted into such Common
Stock for purposes of such calculation). Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
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exclusively to the rights of Holders of Transfer Restricted Securities whose
securities are being sold pursuant to such Shelf Registration Statement and
that does not directly or indirectly affect the rights of other Holders of
Transfer Restricted Securities shall be valid only with the written consent of
Holders of at least 66-2/3% of the Transfer Restricted Securities being sold,
in each case calculated in accordance with the provisions of Section 3(c).
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder of Transfer Restricted Securities, at the
address set forth on the records of the Registrar under the Indenture, with a
copy to the Registrar; and
(ii) if to the Company or an Initial Purchaser, initially at its
address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder of Transfer Restricted Securities unless and to the
extent such successor or assign acquired Transfer Restricted Securities from
such Holder; and provided further that nothing herein shall be deemed to permit
any assignment, transfer or any disposition of Transfer Restricted Securities
in violation of the terms of the Purchase Agreement. If any transferee of any
Holder shall acquire Transfer Restricted Securities, in any manner, whether by
operation of law or otherwise, such Transfer Restricted Securities shall be
held subject to all of the terms of this Agreement and by taking and holding
such Transfer Restricted Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits
hereof.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts 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.
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(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES THEREOF.
(i) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement together with all documents and
agreements referred to herein is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the securities
sold pursuant to the Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
RES-CARE, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name:
Title:
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
X.X. XXXXXXXX & CO., L.L.C.
EQUITABLE SECURITIES CORPORATION
BY: NATIONSBANC XXXXXXXXXX SECURITIES, INC.
By:/s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: MANAGING DIRECTOR
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