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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of March 16, 1998, by and among Concentra Managed Care, Inc., a Delaware
corporation (the "Company"), BT Alex. Xxxxx Incorporated, BancAmerica Xxxxxxxxx
Stephens, Donaldson, Lufkin & Xxxxxxxx Securities Corporation and Xxxxx Xxxxxxx
Inc., (collectively, the "Initial Purchasers") pursuant to the Purchase
Agreement dated as of March 11, 1998 (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 of this Agreement
is a condition to the closing under the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit as
Initial Purchasers and (ii) for the benefit of the holders from time to time of
the Notes (including the Initial Purchasers) and the holders from time to time
of the Common Stock issued upon conversion of the Notes (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
AFFILIATE: With respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person or (ii) any officer or
director of such other Person. For purposes of this definition, the term
"control" of a Person means the possession, direct or indirect, of the power
(whether or not exercised) to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities,
by contract, or otherwise, and the terms "controlling," "controlled by," and
"under direct or indirect common control with" have meanings correlative
thereto.
BUSINESS DAY: Each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.
COMMON STOCK: The shares of common stock, $.01 par value, of the
Company and any other shares of common stock as may constitute "Common Stock"
for purposes of the Indenture, in each case, as issuable or issued upon
conversion of the Notes.
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DAMAGES ACCRUAL PERIOD: See Section 2(d) hereof.
DAMAGES PAYMENT DATE: Each of the semi-annual interest payment
dates provided in the Indenture, whether or not Liquidated Damages are
payable on such date.
EFFECTIVENESS PERIOD: The period commencing with the date hereof and
ending on the earlier of the date that is two years after the latest date of
original issuance of the Notes and the date that all Registrable Securities have
ceased to be Registrable Securities.
EFFECTIVENESS TARGET DATE: See Section 2(a) hereof.
EVENT: See Section 2(d) hereof.
EVENT DATE: See Section 2(d) hereof.
EXCHANGE ACT: the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
FILING DATE: See Section 2(a) hereof.
HOLDER: See the second paragraph of this Agreement.
INDEMNIFIED PARTY: See Section 5(c) hereof.
INDEMNIFYING PARTY: See Section 5(c) hereof.
INDENTURE: The Indenture, dated as of March 16, 1998, between the
Company and Chase Bank of Texas, N.A., as trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof.
INITIAL PURCHASERS: See the first paragraph of this Agreement.
INITIAL SHELF REGISTRATION: See Section 2(a) hereof.
LIQUIDATED DAMAGES: See Section 2(d) hereof.
LOSSES: See Section 5(a) hereof.
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MAJORITY OF REGISTRABLE SECURITIES: A majority of the then
outstanding aggregate principal amount of Registrable Securities. For purposes
of this calculation, Registrable Securities which have been converted into
shares of Common Stock shall be deemed to bear the principal amount at which
such Registrable Securities were converted.
MANAGING UNDERWRITERS: The investment banking firm or firms that
shall manage or co-manage an Underwritten Offering.
NOTES: The 4.50% Convertible Subordinated Notes due 2003 of the
Company being issued and sold pursuant to the Purchase Agreement and the
Indenture.
PERSON: Any natural person, corporation, partnership, limited
liability partnership, limited liability company, trust or other legal entity.
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the first paragraph of this Agreement.
RECORD HOLDER: (i) with respect to any Damages Payment Date relating
to the Notes, each Person who is a registered holder of such Notes on the record
date with respect to the interest payment date under the Indenture 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 registered holder of
such Common Stock 15 days prior to such Damages Payment Date.
REGISTRABLE SECURITIES: Each Note and each share of Common Stock
into which the Notes are convertible or converted upon original issuance
thereof, and at all times subsequent thereto, and any Common Stock issued with
respect thereto upon any stock dividend, split or similar event, until, in the
case of any such Note or share of Common Stock, (i) it is effectively registered
under the Securities Act and disposed of in accordance with the Registration
Statement covering it, (ii) it is salable by the holder thereof pursuant to Rule
144(k) or (iii) it is sold to the public pursuant to Rule 144, and, as a result
of an event or circumstance described in any of the foregoing clauses (i)
through (iii), the legends with respect to transfer restrictions required under
the Indenture (other than any such legends required solely as the consequences
of the fact that the
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Registrable Securities are owned by, or were previously owned by, the Company or
an Affiliate of the Company) are removed or removable in accordance with the
terms of the Indenture.
REGISTRATION EXPENSES: See Section 4 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
REQUISITE INFORMATION: See Section 3 hereof.
RULE 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
RULE 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
SELLING HOLDER: A Holder offering to sell Registrable Securities.
SHELF REGISTRATION STATEMENT: See Section 2(a) hereof.
SPECIAL COUNSEL: Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, or such other
successor counsel as shall be specified by the Holders of a Majority of
Registrable Securities, the fees and expenses of which will be paid by the
Company pursuant to Section 5 hereof.
SUBSEQUENT SHELF REGISTRATION: See Section 2(b) hereof.
SUSPENSION PERIOD: See Section 2(c).
TIA: The Trust Indenture Act of 1939, as amended.
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TRUSTEE: The Trustee under the Indenture.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A
registration in which the Registrable Securities are sold by Holders thereof
to an underwriter for reoffering to the public.
2. SHELF REGISTRATION STATEMENT.
(a) The Company shall prepare and file with the SEC, as soon as
practicable but in any event on or prior to the date 90 days following the
latest date of original issuance of the Notes (the "Filing Date"), a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 of the Securities Act (a "Shelf Registration Statement") registering
the resale from time to time by the Holders thereof of all of the Registrable
Securities (the "Initial Shelf Registration"). The Initial Shelf Registration
shall be on Form S-3 under the Securities Act or another appropriate SEC
Registration Statement form permitting registration of such Registrable
Securities for resale by such Holders in the manner or manners designated by
them (including, without limitation, one or more Underwritten Offerings). The
Company shall use its best efforts to cause the Initial Shelf Registration to be
declared effective under the Securities Act as soon as practicable but in any
event on or prior to the date 120 days following the Filing Date (the
"Effectiveness Target Date"), and shall use its reasonable efforts to keep the
Initial Shelf Registration continuously effective under the Securities Act,
subject to the provisions of Section 2(c), until the earlier of the expiration
of the Effectiveness Period or the date a Subsequent Shelf Registration (as
defined below) covering all of the Registrable Securities has been declared
effective under the Securities Act. Subject to the right of the Company to have
the Initial Shelf Registration not be effective, or not to be updated, amended
or supplemented, for periods of time set forth in Section 2(c), the Company
further agrees to use its best efforts to prevent the happening of any event
that would cause the Initial Shelf Registration to contain a material
misstatement or omission or to be not effective and usable for resale of the
Registrable Securities during the Effectiveness Period.
(b) If the Initial Shelf Registration or any subsequent Shelf
Registration Statement ceases to be effective for any reason as a result of the
issuance of a stop order by the SEC at any time during the Effectiveness Period,
the Company shall use its best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within 30
days of such cessation of effectiveness amend the Shelf Registration Statement
in a manner reasonably expected to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the Registrable Securities (a "Subsequent Shelf Registration").
If a Subsequent Shelf Registration is filed, the Company shall use its best
efforts to cause the subsequent Shelf Registration to be declared
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effective as soon as practicable after such filing and to keep such Registration
Statement continuously effective until the end of the Effectiveness Period.
(c) In the event (A) of the happening of any event of the kind
described in Section 3(d)(ii), 3(d)(iii), 3(d)(iv), 3(d)(v) or 3(d)(vi) hereof
or (B) that, in the good faith-judgment of the Company, it is advisable to
suspend the use of the Prospectus for a discrete period of time due to pending
material corporate developments or similar material events that have not yet
been publicly disclosed and as to which the Company reasonably believes public
disclosure will be prejudicial to the Company, the Company shall deliver a
certificate in writing, signed by an authorized executive officer of the
Company, to the Special Counsel, the Initial Purchasers and the Managing
Underwriters, if any, to the effect of the foregoing and thereafter the use of
the Prospectus shall be suspended, and the Company, subject to the terms of this
Section 2(c), shall thereafter not be required to maintain the effectiveness or
update the Shelf Registration Statement. The Company will use its best efforts
to ensure that the use of the Prospectus may be resumed as soon as practicable,
in the case of suspension under Section 2(c)(A), and, in the case of a pending
development or event referred to in Section 2(c)(B) hereof, as soon as, in the
good faith-judgment of the Company, public disclosure of such material corporate
development or similar material event would not have a material adverse effect
on the Company. Notwithstanding the foregoing, the Company shall not under any
circumstances be entitled to exercise its right under this Section 2(c) to
suspend the use of the Prospectus (whether as a result of events referred to in
Section 2(c)(A) hereof or as a result of the pending development or event
referred to in Section 2(c)(B) hereof) for more than 45 consecutive days in any
one period, and the periods in which the use of the Prospectus is suspended
shall not exceed 100 days in any twelve month period (each a "Suspension
Period"). In addition, a period of at least 15 days must occur between any
Suspension Periods.
(d) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
has not been filed on or prior to the Filing Date, (ii) the Initial Shelf
Registration has not been declared effective by the Effectiveness Target Date,
(iii) prior to the end of the Effectiveness Period, the SEC shall have issued a
stop order suspending the effectiveness of the Shelf Registration Statement or
proceedings have been initiated with respect to the Shelf Registration Statement
under Section 8(d) or 8(e) of the Securities Act, (iv) the aggregate number of
days in any one Suspension Period exceeds the period permitted pursuant to
Section 2(c) hereof or (v) the number of Suspension Periods exceeds the number
permitted pursuant to Section 2(c) hereof (each of the Events of a type
described in any of the foregoing clauses (i) through (v) are individually
referred to herein as an "Event," and the Filing Date in the case of clause (i),
the Effectiveness Target Date in the case of
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clause (ii), the date on which the effectiveness of the Shelf Registration
Statement has been suspended or proceedings with respect to the Shelf
Registration Statement under Section 8(d) or 8(e) of the Securities Act have
been commenced in the case of clause (iii), the date on which the duration of a
Suspension Period exceeds the period permitted by Section 2(c) hereof in the
case of clause (iv), and the date of the commencement of a Suspension Period
that causes the limit on the number of Suspension Periods under Section 2(c)
hereof to be exceeded in the case of clause (v), being referred to herein as an
"Event Date").
Notwithstanding the foregoing, the parties hereto agree that an Event
shall be deemed not to have occurred to the extent the parties hereto mutually
agree that the direct, proximate cause of said Event was the act or failure to
act of one or more Holders, the Initial Purchasers or the Managing Underwriters.
An Event shall be deemed to continue until the date of the termination of such
Event, which shall be the following dates with respect to the respective types
of Events: the date the Initial Shelf Registration is filed in the case of an
Event of the type described in clause (i), the date the Initial Shelf
Registration is declared effective in the case of an Event of the described in
clause (ii), the date that all stop orders suspending effectiveness of the Shelf
Registration Statement have been removed and the proceedings initiated with
respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the
Securities Act have terminated, as the case may be, in the case of Events of the
types described in clause (iii), termination of the Suspension Period which
caused the aggregate number of days in any one Suspension Period to exceed the
number permitted by Section 2(c) to be exceeded in the case of Events of the
types described in clause (iv), and termination of the Suspension Periods, the
commencement of which caused the number of Suspension Periods permitted by
Section 2(d) to be exceeded in the case of Events of the types described in
clause (v).
Accordingly, upon the occurrence of any Event and until such time as there
are no Events which have occurred and are continuing (a "Damages Accrual
Period"), commencing on the Event Date on which such Damages Accrual Period
began, the Company agrees to pay, as liquidated damages, and not as a penalty,
an additional amount (the "Liquidated Damages"): (i) to each holder of Notes
that are Registrable Securities, accruing at a rate equal to one-quarter of one
percent per annum (25 basis points) on the aggregate principal amount of Notes
that are Registrable Securities held by such holder and (ii) to each holder of
shares of Common Stock that are Registrable Securities, accruing at a rate equal
to one-quarter of one percent per annum (25 basis points) calculated on an
amount equal to the product of (x) the then-applicable Conversion Price (as
defined in the Indenture), times (y) the number of shares of Common Stock that
are Registrable Securities held by such holder. Notwithstanding the foregoing,
no Liquidated Damages shall accrue as to any Registrable Securities from and
after the earlier of (x) the date such securities are no longer Registrable
Securities, and (y) the expiration of the
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Effectiveness Period. The rate of accrual of the Liquidated Damages with respect
to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events.
The Company shall pay the Liquidated Damages due on any Notes or Common
Stock by depositing with the Trustee under the Indenture, in trust, for the
benefit of the holders of Notes or Common Stock, as the case may be, entitled
thereto, at least one Business Day prior to the applicable Damages Payment Date,
sums sufficient to pay the Liquidated Damages accrued or accruing since the last
preceding Damages Payment Date through such Damages Payment Date. The Liquidated
Damages shall be paid by the Company to the Record Holders on each Damages
Payment Date by wire transfer of immediately available funds to the account
specified by them, or if no such accounts have been specified on or before the
Damage Payment Date by mailing checks to their registered addresses as they
appear in the register of the Notes, in the case of the Notes, and in the
register of the Company for the Common Stock, in the case of the Common Stock,
provided, however, that any Liquidated Damages accrued with respect to any Note
or portion thereof called for redemption on a Redemption Date, or repurchased in
connection with a Change of Control (as defined in the Indenture) on a
Repurchase Date (as defined in the Indenture), or converted into Common Stock on
a Date of Conversion (as defined in the Indenture) prior to the Damages Payment
Date, shall, in any such event, be paid instead to the holder who submitted such
Note or portion thereof for redemption, repurchase or conversion on the
applicable Redemption Date, Repurchase Date or Date of Conversion, as the case
may be, on such date (or promptly following the Date of Conversion, in the case
of conversion of a Note). If a holder of a Note submits a Note for conversion
during the period between a record date for the payment of Liquidated Damages
and the related Damages Payment Date, Liquidated Damages for the period from the
Date of Conversion through the next succeeding Damages Payment Date shall accrue
and be payable to the holder of Common Stock received on conversion on the next
succeeding Damages Payment Date, notwithstanding that such holder was not a
Record Holder with respect to such Damages Payment Date. The Trustee shall be
entitled, on behalf of the holders of Notes and Common Stock to seek any
available remedy for the enforcement of this Agreement, including for the
payment of such Liquidated Damages. Nothing shall preclude a Holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section 2(d) which are
outstanding with respect to any Registrable Securities at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of the Agreement pursuant to Section 7(o)).
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The parties hereto agree that the Liquidated Damages provided for in this
Section 2(d) constitute a reasonable estimate of the damages that may be
incurred by holders of Registrable Securities (other than the Initial
Purchasers) by reason of the failure of the Shelf Registration Statement to be
filed or declared effective or available (absolutely or as a practical matter)
for effecting resales of Registrable Securities, as the case may be, in
accordance with the provisions hereof.
3. REGISTRATION PROCEDURES. In connection with the Company's registration
obligations under Section 2 hereof, the Company shall effect such registrations
to permit the sale of the Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on Form S-3 or any other appropriate form under the
Securities Act available for the sale of the Registrable Securities by the
Holders thereof in accordance with the intended method or methods of
distribution thereof and shall include all required financial statements, and
use its best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, that before filing,
any such Registration Statement or Prospectus or any amendments or supplements
thereto the Company shall furnish within a reasonable time period to each
Selling Holder (if requested by such Selling Holder), the Initial Purchasers,
the Special Counsel and the Managing Underwriters of such offering, if any,
copies of all such documents proposed to be filed, which documents will be
subject to the review of each Selling Holder (if requested by such Selling
Holder), the Initial Purchasers, the Special Counsel and such Managing
Underwriters, and the Company shall not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto to which the
Holders of a Majority of Registrable Securities covered by such Registration
Statement, the Initial Purchasers or the Special Counsel shall reasonably object
in writing within five Business Days after the receipt thereof. In addition, the
Company shall use its best efforts to reflect in each such document referenced
in this paragraph so filed with the SEC such comments as the Initial Purchasers,
Special Counsel and the Managing Underwriters, if any, may propose.
(b) Subject to Section 2(c), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously effective for the
applicable period specified in Section 2; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such Registration Statement
during the applicable period
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in accordance with the intended methods of disposition by the sellers thereof
set forth in such Registration Statement as so amended or such Prospectus as so
supplemented. The Company shall ensure that (i) any Shelf Registration Statement
and any amendment thereto and any Prospectus forming a part thereof and any
amendment or supplement thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder, (ii) any Shelf
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 Shelf
Registration Statement, and any amendment or supplement to such Prospectus, does
not include an untrue statement or 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.
(c) Each Holder shall furnish to the Company such information
regarding the distribution of its Registrable Securities as is required by law
to be disclosed in the applicable Registration Statement (the "REQUISITE
INFORMATION") prior to effecting any sale pursuant to such Registration
Statement.
The Company shall file, within two Business Days after the receipt
of notice from any Holder which includes the Requisite Information with respect
to such Holder, a Prospectus supplement pursuant to Rule 424 (or any similar
provision then in force) under the Securities Act or otherwise amend or
supplement such Registration Statement to include in the Prospectus the
Requisite Information as to such Holder (and the Registrable Securities held by
such Holder), and the Company shall provide such Holder and the Special Counsel
within two Business Days after receipt of such notice with a copy of such
Prospectus as so amended or supplemented containing the Requisite Information in
order to permit such Holder to comply with the Prospectus delivery requirements
of the Securities Act in a timely manner with respect to any proposed
disposition of such Holder's Registrable Securities; PROVIDED, HOWEVER, that
notwithstanding the requirements of Section 3(a), the Company shall not be
required to provide any Holder with a copy of such Prospectus as so amended or
supplemented solely to contain the Requisite Information in advance of filing
the same with the SEC.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require, in the event that such reference to such Holder by
name or otherwise is not required by the Securities Act or any similar Federal
statute then in force, the deletion of the reference to such Holder in such
Registration Statement at any time subsequent to the time that such reference
ceases to be required.
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(d) Notify the Holders, the Initial Purchasers, the Special Counsel
and the Managing Underwriters, if any, promptly, and (if requested by any such
Person) confirm such notice in writing, (i) when a Prospectus, any Prospectus
supplement, a Registration Statement or a post-effective amendment to a
Registration Statement has been filed with the SEC, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or related Prospectus or for additional information, (iii) of the issuance by
the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceedings for such
purpose, (v) of 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 the Registration Statement
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 the Prospectus 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, in the light of the
circumstances under which they were made, not misleading, and (vi) of the
Company's determination that a post-effective amendment to a Registration
Statement would be appropriate.
(e) Use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment.
(f) If requested by the Initial Purchasers, the Special Counsel or
the Managing Underwriters, if any, or the Holders of a Majority of the
Registrable Securities being sold, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment to the Registration Statement such
information as the Initial Purchasers, the Special Counsel, the Managing
Underwriters, if any, or such Holders and the Company mutually agree should be
included therein, and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters proposed to be incorporated in
such Prospectus supplement or post-effective amendment.
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(g) Furnish to each Selling Holder (if requested by such Selling
Holder), the Special Counsel, the Initial Purchasers, and each Managing
Underwriter, if any, without charge, at least one conformed copy of the
Registration Statement or Registration Statements and any amendment thereto,
including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(h) Deliver to each Selling Holder, the Special Counsel, the Initial
Purchasers and each Managing Underwriter, if any, in connection with any
offering of Registrable Securities, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
Persons may reasonably request; and the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by each of the Selling
Holders of Registrable Securities and the Underwriters, if any, in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(i) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the Selling Holders, the Managing
Underwriters, if any, and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Selling Holder or Managing Underwriter reasonably requests in writing, keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
applicable Registration Statement, provided, that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified (ii) take any action that would subject it to general
service of process in suits or to taxation in any such jurisdiction where it is
not then so subject.
(j) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies in addition to the SEC or authorities within the United
States as may be necessary to enable the Selling Holder or Holders thereof or
the Managing Underwriters, if any, to consummate the disposition of such
Registrable Securities.
(k) During the Effectiveness Period (subject to the provisions of
Section 2(c)), immediately upon the existence of any fact or the occurrence of
any event as a result of which (i)
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a Registration Statement shall 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, or (ii) a Prospectus shall 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, in
the light of the circumstances under which they were made, not misleading,
promptly prepare and file a post-effective amendment to each Registration
Statement or a supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document (such as a Current
Report on Form 8-K) that would be incorporated by reference into the
Registration Statement so that the Registration Statement shall 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 so that the Prospectus 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, in the light of the circumstances
under which they were made, not misleading, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder; and in the case
of a post-effective amendment to a Registration Statement, use its best efforts
to cause it to become effective as soon as practicable.
(l) Enter into such agreements (including, in the event of an
Underwritten Offering, an underwriting agreement in form, scope and substance as
is customary in Underwritten Offerings) and take all such other actions in
connection therewith (including, in the event of an the Underwritten Offering,
those reasonably requested by the Managing Underwriters, if any, or the Holders
of a Majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into, and if the
registration is an Underwritten Registration, (i) make such representations and
warranties to the Holders of such Registrable Securities and the underwriters
with respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by reference or
deemed incorporated by reference, if any, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested; (ii) use its reasonable
efforts to obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any, Special Counsel and the
Holders of a Majority of Registrable Securities being sold) addressed to each of
the underwriters covering the matters customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably requested
by such Special Counsel and Managing Underwriters; (iii) use its reasonable
efforts to obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other certified public accountants of any subsidiary of the Company or any
business acquired or to be acquired
-14-
by the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each of
the Managing Underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with Underwritten Offerings, and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority of the
Registrable Securities being sold, the Special Counsel and the Managing
Underwriters, if any, to evidence the continued validity of the representations
and warranties of the Company and its subsidiaries made pursuant to clause (i)
above and to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The above
shall be done at each closing under such underwriting or similar agreement as
and to the extent required thereunder.
(m) Make available for inspection by a representative of the Holders
of Registrable Securities being sold, any Managing Underwriter participating in
any disposition of Registrable Securities, if any, and any attorney or
accountant retained by such Selling Holders or underwriter, financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the executive officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably requested by
any such representative, Managing Underwriter, attorney or accountant in
connection with such disposition; provided, however, that any information that
is reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such Persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to federal
securities laws in connection with the filing of any Registration Statement or
the use of any prospectus referred to in this Agreement), (iii) such information
becomes generally available to the public other than as a result of disclosure
or failure to safeguard by any such person or (iv) such information becomes
available to any such person from a source other than the Company and such
source is not bound by a confidentiality agreement.
(n) Comply with all applicable rules and regulations of the SEC in
all material respects and make generally available to its securityholders
earnings statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of
-15-
the Company commencing after the effective date of a Registration Statement,
which statements shall cover said 12-month periods.
(o) Cooperate with the Selling Holders of Registrable Securities,
the Initial Purchasers, the Special Counsel and the Managing Underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends, and enable such Registrable Securities to be in such denominations and
registered in such names as the Holders may request.
(p) Not later than the effectiveness date of the Initial Shelf
Registration hereunder, provide a CUSIP number for the Registrable Securities
registered under such Registration Statement, and provide the Trustee under the
Indenture and the transfer agent for the Common Stock with printed certificates
for the Registrable Securities which are in a form eligible for deposit with The
Depository Trust Company.
(q) Cause all shares of Common Stock covered by the Registration
Statement to be listed on each securities exchange or quotation system on which
the Company's Common Stock is then listed or quoted no later than the date the
Registration Statement is declared effective, and, in connection therewith, to
the extent applicable, to make such filings as are required under the Exchange
Act (e.g., the filing of a Registration Statement on Form 8-A) and to have such
filings declared effective thereunder.
(r) Cooperate and assist in any filing required to be made with the
National Association of Securities Dealers, Inc.
(s) Cause the Indenture to be qualified under the TIA no later than
the date the Initial Shelf Registration is declared effective, and, in
connection therewith, cooperate with the Trustee and the Holders, the Initial
Purchasers, the Special Counsel and the Managing Underwriters, if any, 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 SEC to enable such Indenture to be so qualified in a timely manner.
4. REGISTRATION EXPENSES. All fees and expenses incident to the Company's
obligations under this Agreement shall be borne by the Company whether or not
any of the Registration Statements become effective. Such fees and expenses
shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses
-16-
with respect to filings required to be made with the National Association of
Securities Dealers, Inc.), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing
Prospectuses if the printing of Prospectuses is requested by the Special
Counsel, the Initial Purchasers, the Managing Underwriters or the holders of a
Majority of Registrable Securities included in any Registration Statement),
(iii) reasonable fees and disbursements of counsel for the Company and the
Special Counsel in connection with the Shelf Registration Statement (provided
that the Company shall not be liable for the fees and expenses of more than one
separate firm for all parties (other than the Company) participating in any
transaction hereunder), and (iv) fees and disbursements of all independent
certified public accountants referred to in Section 3(l)(iii) hereof (including
the expenses of any special audits and "cold comfort" letters required by or
incident to such performance). In addition, the Company shall pay the fees and
expenses incurred in connection with the listing or quotation of the securities
to be registered on any securities exchange or quotations system on which
similar securities issued by the Company are then listed and the fees and
expenses of any Person, including special experts, retained by the Company.
5. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall indemnify and
hold harmless each Holder, the directors, officers, employees and agents of each
such Holder and each Person, if any, who controls any such Holder (within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act) from and against all losses, liabilities, damages and expenses (including
without limitation, any reasonable legal or other expenses incurred in
connection with defending or investigating any such action or claim)
(collectively, "Losses"), arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus or in any amendment or supplement thereto, or arising
out of or based upon 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, in light of the circumstances under which they were
made, except insofar as such losses arise out of or are based upon information
relating to any Holder furnished to the Company in writing by such holder
expressly for use therein; and provided further, that the Company will not be
liable to any Holder with respect to any such untrue statement or omission made
in any preliminary Prospectus that is corrected in a final Prospectus (or any
amendment or supplement thereto) if the person asserting any such loss, claim,
damage or liability purchased Notes or Common Stock but was not sent or given a
copy of the final Prospectus (as amended or supplemented) in any case where such
delivery of the final Prospectus (as amended or supplemented) was required by
the Securities Act, unless such failure to deliver the Prospectus
-17-
(as amended or supplemented) was a result of noncompliance by the Company with
Section 3 hereof. The Company shall also indemnify each underwriter, their
officers and directors, and each Person who controls such Person (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
to the same extent and with the same limitations as provided above with respect
to the indemnification of the Holders of Registrable Securities.
(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. Each
Holder, agrees severally and not jointly to indemnify and hold harmless the
Company, its directors, its officers who sign a Registration Statement and each
Person, if any, who controls the Company (within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act), from and against
all Losses arising out of or based upon any untrue statement of a material fact
contained in any Registration Statement or Prospectus or arising out of or based
upon any omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, in light of the circumstances
under which they were made, to the extent, but only to the extent, that such
untrue statement or omission is contained in any information relating to such
Holder furnished in writing by such Holder to the Company expressly for use in
such Registration Statement or Prospectus. In no event shall the liability of
any Selling Holder of Registrable Securities hereunder be greater in amount than
the dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such Person (the "Indemnified Party") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Party") in writing, but failure so to notify an Indemnifying Party shall not
relieve such Indemnifying Party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof. The Indemnifying Party, upon
request of the Indemnified Party, shall retain counsel satisfactory to the
Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention to such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnifying Party and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them, or (iii) the Indemnifying Party shall not have
employed counsel satisfactory to the Indemnified Party to represent the
-18-
Indemnified Party within a reasonable time after notice of commencement of the
action. It is understood that the Indemnifying Party shall not, in respect of
the legal expenses of any Indemnified Party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all indemnified parties under Section 5(a) or 5(b) hereof who are parties to
such proceeding or proceedings, and that all such fees and expenses shall be
reimbursed as they are incurred. The Indemnifying Party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify the Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Party shall have requested
an Indemnifying Party to reimburse the Indemnified Party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
such Indemnifying Party agrees that it shall be liable for any settlements of
any proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such Indemnifying Party of the
aforesaid request and (ii) such Indemnifying Party shall not have reimbursed the
Indemnified Party in accordance with such request prior to the date of such
settlement. No Indemnifying Party shall, without the prior written consent of
the Indemnified Party, 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.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 5 is unavailable to an Indemnified Party under Section 5(a) or 5(b)
hereof in respect of any Losses or is insufficient to hold such Indemnified
Party harmless, then each applicable 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, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Indemnifying Party
or Indemnifying Parties on the one hand and the Indemnified Party or Indemnified
Parties an the other hand 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 Indemnifying Party or Indemnified Parties on the one
hand and of the Indemnified Party or Indemnifying Parties on the other hand in
connection with the statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the initial
placement of the Notes pursuant to the Purchase Agreement. Benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions
-19-
received by them pursuant to the Purchase Agreement and benefits received by any
other Holders shall be deemed to be equal to the value of receiving Notes
registered under the Securities Act. Benefits received by any underwriter shall
be deemed to be equal to the total underwriting discounts and commissions, as
set forth on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. The relative fault of the Holders on
the one hand and the Company on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Holders or by the Company and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this paragraph are several in proportion
to the respective number of Registrable Securities they have sold pursuant to a
Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method or allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding this Section 5(d), an
Indemnifying Party that is a Selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such Indemnifying Party and
distributed to the public were offered to the public exceeds the amount of any
damages which such Indemnifying Party 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 Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The
indemnity, contribution and expense reimbursement obligations of the Company
hereunder shall be in addition to any liability the Company may otherwise have
hereunder, under the Purchase Agreement or otherwise.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any Person controlling any Holder, or the Company, its officers or
directors or any Person controlling the Company and (iii) the sale of any
Registrable Securities by any Holder.
-20-
6. INFORMATION REQUIREMENTS.
(a) The Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act, and if at any time the Company is
not required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act.
The Company further covenants that it will cooperate with any Holder
of Registrable Securities and take such further reasonable action as any Holder
of Registrable Securities may reasonably request (including, without limitation,
making such reasonable representations as any such Holder may reasonably
request), all to the extent required from time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 and Rule 144A under the
Securities Act. Notwithstanding the foregoing, nothing in this Section 6 shall
be deemed to require the Company to register any of its securities under any
section of the Exchange Act.
(b) The Company shall file the reports required to be filed by it
under the Exchange Act and shall comply with all other requirements set forth in
the instructions to the appropriate SEC Registration Statement form permitting
registration of the Registrable Securities for resale by the Holders thereof in
the manner or manners designated by them.
7. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by the Company of its
obligations under this Agreement, each Holder of Registrable Securities, 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. The Company agrees 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 agrees 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.
(b) NO CONFLICTING AGREEMENTS. The Company has not entered into as
of the date hereof, and shall not enter into on or after the date hereof, any
agreement with respect to its securities which conflicts with the rights granted
to the Holders of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the Holders of
-21-
Registrable Securities hereunder do not in any way conflict with the rights
granted to the holders of the Company's securities under any other agreements.
(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 Registrable Securities. 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 of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority of the Registrable
Securities being so sold; provided, that the provisions of this sentence may not
be amended, modified, or supplemented except in accordance with the provisions
of the immediately preceding sentence.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by telecopier or
(iii) one business day after being deposited with a reputable next day courier,
postage prepaid, to the parties as follows:
(x) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with the
provisions of Section 7(e):
(y) if to the Company, to:
Concentra Managed Care, Inc.
000 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx, A Professional
Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
-22-
and
(z) if to the Special Counsel to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
or to such other address as such Person may have furnished to the other Persons
identified in this Section 7(d) in writing in accordance herewith.
Copies of all 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) OWNER OF REGISTRABLE SECURITIES. The Company will maintain, or
will cause its registrar and transfer agent to maintain, a register with respect
to the Registrable Securities in which all transfers of Registrable Securities
of which the Company has received notice will be recorded. The Company may deem
and treat the Person in whose name Registrable Securities are registered in such
register of the Company as the owner thereof for all purposes, including,
without limitation, the giving of notices under this Agreement.
(f) APPROVAL OF HOLDERS. Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchasers
or subsequent holders of Registrable Securities if such subsequent holders are
deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
(g) SUCCESSORS AND ASSIGNS. Any Person who purchases any Registrable
Securities from an Initial Purchaser shall be deemed, for purposes of this
Agreement to be an assignee of such Initial Purchaser. The Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties and shall inure to the benefit of and be binding upon each holder of any
Registrable Securities.
-23-
(h) 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 original and all of which taken together
shall constitute one and the same agreement.
(i) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE COMMONWEALTH OF MASSACHUSETTS WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
(k) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held 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 thereby, and the parties hereto shall use their best 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 which may be hereafter declared
invalid, illegal, void or unenforceable.
(l) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and is 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. Except as provided in the
Purchase Agreement and the Indenture, 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 and the Indenture. This
Agreement supersedes all prior agreements and understandings among the parties
with respect to such subject matter.
(m) ATTORNEYS' FEES. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, shall
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
-24-
(n) FURTHER ASSURANCES. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
(o) TERMINATION. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 2(d), 4 or 5 hereof, each of which
shall remain in effect in accordance with their terms.
(p) THIRD PARTY BENEFICIARIES. The Company and the Initial
Purchasers agree that each Holder shall be a third party beneficiary of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
CONCENTRA MANAGED CARE, INC.
By:
Name:
Title:
Accepted as of the date first above written:
BT ALEX. XXXXX INCORPORATED
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXX XXXXXXX INC.
By: BT Alex. Xxxxx Incorporated
By:
Name:
Title:
