AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this "Agreement"),
dated as of February 21, 2002, between Explorer Holdings, L.P., a Delaware
limited partnership ("Stockholder"), and Omega Healthcare Investors, Inc., a
Maryland corporation (the "Company").
RECITALS
WHEREAS, the parties hereto are parties to that certain Registration Rights
Agreement, dated as of July 14, 2000 (the "Original Agreement"); and
WHEREAS, the parties wish to amend and restate the Original Agreement in
its entirety in connection with the closing of the transactions contemplated by
the Series D Investment Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, the parties hereto hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms have
the following meanings when used herein with initial capital letters:
(a) Advice: As defined in Section 6 hereof.
(b) Common Stock: The Common Stock, par value $0.10 per share, of the
Company.
(c) Demand Notice: As defined in Section 3 hereof.
(d) Demand Registration: As defined in Section 3 hereof.
(e) Effective Date: The date of closing of the transactions contemplated by
the Series D Investment Agreement.
(f) Losses: As defined in Section 8 hereof.
(g) Piggyback Registration: As defined in Section 4 hereof.
(h) 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 prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
(i) Registrable Securities: All shares of Series C Preferred, Series D
Preferred, and Common Stock acquired by Stockholder or any of its Affiliates or
any permitted transferee or their respective assigns of any such Person
(including (i) all shares of Common Stock issued upon conversion of any shares
of Series C Preferred or Series D Preferred and (ii) any shares of Series C
Preferred, Series D Preferred, or Common Stock or other securities that may be
received by Stockholder or any permitted transferee or their respective assigns
(x) as a result of a dividend or stock split of Series C Preferred, Series D
Preferred, or Common Stock or (y) on account of Series C Preferred, Series D
Preferred, or Common Stock in a recapitalization or other transaction involving
the Company) upon the respective original issuance thereof, and at all times
subsequent thereto, and all other securities of the Company of any class or
series that are beneficially owned by Stockholder or any of its Affiliates,
until, in the case of any such security, (i) it is effectively registered under
the Securities Act and disposed of in accordance with the Registration Statement
covering it, (ii) it is saleable by the holder thereof pursuant to Rule 144(k)
without any volume limitation applicable thereto, or (iii) it is distributed to
the public pursuant to Rule 144.
(j) Registration Expenses: As defined in Section 7 hereof.
(k) Registration Statement: Any registration statement of the Company under
the Securities Act that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the related Prospectus, all 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.
(l) 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.
(m) SEC: The Securities and Exchange Commission.
(n) Securities Act: The Securities Act of 1933, as amended.
(o) Series C Investment Agreement: The Investment Agreement, dated as of
May 11, 2000, by and between the Company and Stockholder relating to the
purchase and sale of Series C Preferred.
(p) Series C Preferred: Shares of Series C Preferred Stock, par value $1.00
per share, of the Company.
(q) Series D Investment Agreement: The Investment Agreement, dated as of
October 29, 2001, by and between the Company and Stockholder relating to the
purchase and sale of Series D Preferred.
(r) Series D Preferred: Shares of Series D Preferred Stock, par value $1.00
per share, of the Company.
(s) Underwritten registration or underwritten offering: A distribution,
registered pursuant to the Securities Act in which securities of the Company are
sold to an underwriter for reoffering to the public.
2. Holders of Registrable Securities. Whenever a number or percentage of
Registrable Securities is to be determined hereunder, each then-outstanding
other equity security that is exercisable to purchase, convertible into, or
exchangeable for shares of Common Stock of the Company will be deemed to be
equal to the number of shares of Common Stock for which such other equity
security (or the security into which such other equity security is then
convertible) is then so purchasable, convertible, exchangeable or exercisable.
3. Demand Registration. (a) Requests for Registration. At any time and from
time to time after the Effective Date, the holder(s) of Registrable Securities
constituting at least 15% of the total number of Registrable Securities then
outstanding will have the right by written notice delivered to the Company (a
"Demand Notice"), to require the Company to register (a "Demand Registration")
under and in accordance with the provisions of the Securities Act a number of
Registrable Securities that would reasonably be expected to result in aggregate
gross proceeds from such offering of not less than $7.5 million ($1 million in
the case of any Demand Registration that is requested to be effected as a
"shelf" registration); provided, however, that no Demand Notice may be given
prior to six months after the effective date of the immediately preceding Demand
Registration or any Piggyback Registration of which the Company has notified the
Holder in accordance with Section 4(a) and for which the number of Registrable
Securities requested to be registered by the Holder has not been reduced
pursuant to Section 4(b).
(b) Filing and Effectiveness. The Company will file a Registration
Statement relating to any Demand Registration within 30 calendar days, and will
use its reasonable efforts to cause the same to be declared effective by the SEC
as soon as practicable thereafter, and in any event, within 45 calendar days, of
the date on which the Registration Statement is first filed with the SEC.
All requests made pursuant to this Section 3 will specify the number of
Registrable Securities to be registered and will also specify the intended
methods of disposition thereof; provided, that if the holder demanding such
registration specifies one particular type of underwritten offering, such method
of disposition shall be such type of underwritten offering or a series of such
underwritten offerings (as such demanding holders of Registrable Securities may
elect) during the period during which the Registration Statement is effective.
The Company will keep the Registration Statement filed in respect of a
Demand Registration effective for a period of up to 90 calendar days from the
date on which the SEC declares such Registration Statement effective (subject to
extensions pursuant to Section 6 hereof) or such shorter period that will
terminate when all Registrable Securities deemed by such Registration Statement
have been sold pursuant to such Registration Statement. If any Demand
Registration is requested to be effected as a "shelf" registration by the
holders of Registrable Securities demanding such Demand Registration, the
Company will keep the Registration Statement filed in respect thereof effective
for a period of up to 12 months from the date on which the SEC declares such
Registration Statement effective (subject to extension pursuant to Section 6
hereof) or such shorter period that will terminate when all Registrable
Securities covered by such Registration Statement have been sold pursuant to
such Registration Statement.
Within ten calendar days after receipt of such Demand Notice, the Company
will serve written notice thereof (the "Notice") to all other holders of
Registrable Securities and will, subject to the provisions of Section 3(c)
hereof, include in such registration all Registrable Securities with respect to
which the Company receives written requests for inclusion therein within 20
calendar days after the receipt of the Notice by the applicable holder.
The holders of Registrable Securities will be permitted to withdraw
Registrable Securities from a Registration at any time prior to the effective
date of such registration.
(c) Priority on Demand Registration. If any of the Registrable Securities
registered pursuant to a Demand Registration are to be sold in one or more firm
commitment underwritten offerings, the Company may also provide written notice
to holders of its equity securities (other than Registrable Securities), if any,
who have piggyback registration rights with respect thereto and will permit all
such holders who request to be included in the Demand Registration to include
any or all equity securities held by such holders in such Demand Registration on
the same terms and conditions as the Registrable Securities. Notwithstanding the
foregoing, if the managing underwriter or underwriters of the offering to which
such Demand Registration relates advises the holders of Registrable Securities
that the total amount of Registrable Securities and securities that such equity
security holders intend to include in such Demand Registration is in the
aggregate such as to materially and adversely affect the success of such
offering, then (i) first, the amount of securities to be offered for the account
of the holders of such other equity securities will be reduced, to zero if
necessary (pro rata among such holders on the basis of the amount of such other
securities to be included therein by each such holder), and (ii) second, the
number of Registrable Securities included in such Demand Registration will, if
necessary, be reduced and there will be included in such firm commitment
underwritten offering only the number of Registrable Securities that, in the
opinion of such managing underwriter or underwriters, can be sold without
materially and adversely affecting the success of such offering, allocated pro
rata among the holders of Registrable Securities on the basis of the number of
Registrable Securities held by each such holder.
(d) Postponement of Demand Registration. The Company will be entitled to
postpone the filing period (or suspend the effectiveness) of any Demand
Registration for a reasonable period of time not in excess of 60 calendar days,
if the Board of Directors of the Company determines, in the good faith exercise
of its reasonable business judgment, that such registration and offering would
materially interfere with bona fide financing plans of the Company or would
require disclosure of information, the premature disclosure of which could
materially and adversely affect the Company; provided, however, that the Company
may not exercise such right more than twice or for an aggregate of more than 90
calendar days during any twelve month period. If the Company postpones the
filing of a Registration Statement, it will promptly notify the holders of
Registrable Securities in writing when the events or circumstances permitting
such postponement have ended.
4. Piggyback Registration. (a) Right to Piggyback. If at any time the
Company proposes to file a registration statement under the Securities Act with
respect to an offering of any class of equity securities (other than a
registration statement (i) on Form S-4, S-8 or any successor form thereto or
(ii) filed solely in connection with an offering made solely to employees or
securityholders of the Company), whether or not for its own account, then the
Company will give written notice of such proposed filing to the holders of
Registrable Securities at least 20 calendar days before the anticipated filing
date. Such notice will offer such holders the opportunity to register such
amount of Registrable Securities as each such holder may request (a "Piggyback
Registration"). Subject to Section 4(b) hereof, the Company will include in each
such Piggyback Registration all Registrable Securities with respect to which the
Company has received written requests for inclusion therein. The holders of
Registrable Securities will be permitted to withdraw all or part of the
Registrable Securities from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration.
(b) Priority on Piggyback Registrations. The Company will cause the
managing underwriter or underwriters of a proposed underwritten offering to
permit holders of Registrable Securities requested to be included in the
registration for such offering to include therein all such Registrable
Securities requested to be so included on the same terms and conditions as any
similar securities, if any, of the Company included therein. Notwithstanding the
foregoing, if the managing underwriter or underwriters of such offering advises
the holders of Registrable Securities to the effect that the total amount of
securities which such holders, the Company and any other persons having rights
to participate in such registration propose to include in such offering is such
as to materially and adversely affect the success of such offering, then:
(i) if such registration is a primary registration on behalf of the
Company, the amount of securities to be included therein for the account of all
other holders of securities of the Company (other than holders of Registrable
Securities) will be reduced (to zero if necessary) pro rata in proportion to the
number of shares held by each such person, and thereafter, if such reduction is
not sufficient so as, in the opinion of such managing underwriters or
underwriters, to permit the inclusion of Registrable Securities without
adversely affecting the success of the offering, the amount of Registrable
Securities so included in the Registration Statement for the account of the
holders of Registrable Securities will be reduced (to zero if necessary) pro
rata in proportion to the number of shares held by such persons to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such managing underwriter or underwriters;
and
(ii) if such registration is an underwritten secondary registration on
behalf of holders of securities of the Company other than Registrable
Securities, the Company will include therein: (x) first, up to the full number
of securities of such persons exercising "demand" registration rights that in
the opinion of such managing underwriter or underwriters can be sold or
allocated among such holders as they may otherwise so determine, (y) second, up
to the full amount of Registrable Securities that, in the opinion of such
managing underwriter or underwriters, can be sold (allocated pro rata among the
holders of such Registrable Securities in proportion to the number of
Registrable Securities held by such persons), and (z) third, all other
securities proposed to be sold by any other persons that in the opinion of such
managing underwriter or underwriters can be sold or allocated among such holders
as they may otherwise so determine.
(c) Registration of Securities other than Registrable Securities. Without
the written consent of the holders of a majority of the then-outstanding
Registrable Securities, the Company will not grant to any person the right to
request the Company to register any securities of the Company under the
Securities Act unless the rights so granted are subject to the prior rights of
the holders of Registrable Securities set forth herein, and, if exercised, would
not otherwise conflict or be inconsistent with the provisions of, this
Agreement.
5. Restrictions on Sale by Holders of Registrable Securities. Each holder
of Registrable Securities whose Registrable Securities are covered by a
Registration Statement filed pursuant to Section 3 or Section 4 hereof, agrees
and will confirm such agreement in writing, if such holder is so requested
(pursuant to a timely written notice) by the managing underwriter or
underwriters in an underwritten offering, not to effect any public sale or
distribution of any of the Company's equity securities (except as part of such
underwritten offering), including a sale pursuant to Rule 144, during the
10-calendar day period prior to, and during such period of time, not to exceed
90 days as any managing underwriter or underwriters may reasonably request in
connection with any underwritten public offering beginning on, the closing date
of each underwritten offering made pursuant to such Registration Statement or
such other shorter period to which the executive officers of the Company may
agree.
6. Registration Procedures. In connection with the Company's registration
obligations pursuant to Sections 3 and 4 hereof, the Company will effect such
registrations to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or Registration
Statements on any appropriate form under the Securities Act available for the
sale of the Registrable Securities by the holders thereof in accordance with
holders' notice to the Company as to the intended method or methods of
distribution thereof (including, without limitation, distributions in connection
with transactions with broker-dealers or others for the purpose of hedging
Registrable Securities, involving possible sales, short sales, options, pledges
or other transactions which may require delivery and sale to broker-dealers or
others of Registrable Securities), and cause each such Registration Statement to
become effective and remain effective as provided herein; provided, however,
that before filing a Registration Statement or Prospectus or any amendments or
supplements thereto (including documents that would be incorporated or deemed to
be incorporated therein by reference) the Company will furnish to the holders of
the Registrable Securities covered by such Registration Statement, the Special
Counsel and the managing underwriters, if any, copies of all such documents
proposed to be filed, which documents will be subject to the review of such
holders, the Special Counsel and such underwriters. Notwithstanding Section
3(b), the Company will not file any such Registration Statement or amendment
thereto or any Prospectus or any supplement thereto (including such documents
which, upon filing, would or would be incorporated or deemed to be incorporated
by reference therein) to which the holders of a majority of the Registrable
Securities covered by such Registration Statement, the Special Counsel or the
managing underwriter, if any, shall reasonably object on a timely basis.
(b) 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 3; 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 in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or to such
Prospectus as so supplemented.
(c) Notify the selling holders of Registrable Securities, 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 or any
Prospectus supplement or post-effective amendment has been filed, 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 of any proceedings for that purpose, (iv) if at any time the
representations and warranties of the Company contained in any agreement
contemplated by Section 6(m) hereof (including any underwriting agreement) cease
to be true and correct, (v) 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 proceeding for such purpose, (vi) of the
occurrence of any event which makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or which
requires the making of any changes in a Registration Statement, Prospectus or
documents so 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, 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 or which is necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (vii) of the
Company's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use every reasonable effort 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.
(e) If requested by the managing underwriters, if any, or the holders of a
majority of the Registrable Securities being registered, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and such holders agree should
be included therein as may be required by applicable law 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 to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Company will not be required to take any
actions under this Section 6(e) that are not, in the opinion of counsel for the
Company, in compliance with applicable law.
(f) Furnish to each selling holder of Registrable Securities, the Special
Counsel and each managing underwriter, if any, without charge, at least one
conformed copy of the Registration Statement and any post-effective amendment
thereto, including financial statements (but excluding schedules, all documents
incorporated or deemed incorporated therein by reference and all exhibits,
unless requested in writing by such holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, the Special
Counsel and the underwriters, if any, 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 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 the offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to register or
qualify or cooperate with the selling holders of Registrable Securities, the
underwriters, if any, and their respective 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 seller or underwriter reasonably requests in writing to the extent such
registration or qualification would be required taking into account federal
securities laws; 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 jurisdiction of the Registrable
Securities covered by the applicable Registration Statement; provided, however
that the Company will not be required to (i) qualify generally to do business in
any jurisdiction in which it is not then so qualified or (ii) take any action
that would subject it to general service of process in any such jurisdiction in
which it is not then so subject.
(i) Cooperate with the selling holders of Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates will not bear any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters, if any, shall request at least two business days prior to
any sale of Registrable securities to the underwriters.
(j) Use reasonable efforts to cause the Registrable Securities covered by
the applicable Registration Statement to be registered with or approved by such
other governmental agencies or authorities within the United States except as
may be required solely as a consequence of the nature of such selling holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals as may be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities.
(k) Upon the occurrence of any event contemplated by Section 6(c)(vi) or
6(c)(vii) hereof, prepare a supplement or 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 so that,
as thereafter delivered to Stockholder of the Registrable Securities being sold
thereunder, such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(l) Use its best efforts to cause all Registrable Securities covered by
such Registration Statement to be listed on each securities exchange, if any, on
which similar securities issued by the Company are then listed or, if no similar
securities issued by the Company are then so listed, on the New York Stock
Exchange or another national securities exchange if the securities qualify to be
so listed or, if the securities do not qualify for such listing, authorized to
be quoted on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") or the National Market System of NASDAQ if the securities
qualify to be so quoted; in each case, if requested by the holders of a majority
of the Registrable Securities covered by such Registration statement or the
managing underwriters, if any.
(m) In the event of an underwritten offering, enter into such agreements
(including an underwriting agreement in form, scope and substance as is
customary in underwritten offerings) and take all such other actions in
connection therewith (including those reasonably requested by the holders of a
majority of the Registrable Securities being sold or those reasonably requested
by the managing underwriters) in order to expedite or facilitate the disposition
of such Registrable Securities and in such connection, (i) make such
representations and warranties to the underwriters, if any, 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) 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, and the holders
of a majority of the Registrable Securities being sold) addressed to such
selling holder of Registrable Securities and each of the underwriters, if any,
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such holders
and underwriters, including without limitation the matters referred to in
Section 6(m)(i) hereof; (iii) use its best efforts to obtain "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 of any business acquired by the Company for which
financial statements and financial data is, or is required to be, included in
the Registration Statement), addressed to each selling holder of Registrable
Securities and each of the underwriters, if any, such letters to be in customary
form and covering matters of the type customarily covered in "comfort" letters
in connection with underwritten offerings; and (iv) deliver such documents and
certificates as may be 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 similar agreement entered into by the Company. The foregoing
actions will be taken in connection with each closing under such underwriting or
similar agreement as and to the extent required thereunder.
(n) Make available for inspection by a representative of the holders of
Registrable Securities being sold, any underwriter participating in any
disposition of Registrable Securities, and any attorney or accountant retained
by such selling holders or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the officers, directors and employees of the Company and
its subsidiaries to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with such
Registration Statement; provided, however, that any records, information or
documents that are designated by the Company in writing as confidential at the
time of delivery of such records, information or documents will be kept
confidential by such persons unless (i) such records, information or documents
are in the public domain or otherwise publicly available, (ii) disclosure of
such records, information or documents is required by court or administrative
order or is necessary to respond to inquires of regulatory authorities, or (iii)
disclosure of such records, information or documents, in the opinion of counsel
to such person, is otherwise required by law (including, without limitation,
pursuant to the requirements of the Securities Act).
(o) Comply with all applicable rules and regulations of the SEC and make
generally available to its security holders earning statements 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 calendar
days after the end of any 12-month period (or 90 calendar 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 the Company, after the effective date of a Registration
Statement, which statements shall cover said 12-month period.
(p) Cooperate with any reasonable request by holders of a majority of the
Registrable Securities offered for sale, including by ensuring participation by
the executive management of the Company in road shows, so long as such
participation does not materially interfere with the operation of the Company's
business.
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish to the Company such information
regarding the distribution of such Registrable Securities as the Company may,
from time to time, reasonably request in writing and the Company may exclude
from such registration the Registrable Securities of any seller who unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
Each holder of Registrable Securities will be deemed to have agreed by
virtue of its acquisition of such Registrable Securities that, upon receipt of
any notice from the Company of the occurrence of any event of the kind described
in Section 6(c)(ii), 6(c)(iii), 6(c)(v), 6(c)(vi) or 6(c)(vii) hereof, such
holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus (a "Black-Out") until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(k) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such Prospectus,
provided, however, that in no event shall the aggregate number of days during
which a Black-Out is effective during any period of twelve consecutive months
exceed 90 calendar days. In the event the Company shall give any such notice,
the time period prescribed in Section 3(b) hereof will be extended by the number
of days during the time period from and including the date of the giving of such
notice to and including the date when each seller of Registrable Securities
covered by such Registration Statement shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 6(k) hereof or (y)
the Advice.
7. Registration Expenses. All Registration Expenses will be borne by the
Company whether or not any of the Registration Statements become effective.
"Registration Expenses" will mean all fees and expenses incident to the
performance of or compliance with this Agreement by the Company, including,
without limitation, (i) all registration and filing fees (including without
limitation fees and expenses (x) with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and (y) of compliance
with securities or "blue sky" laws (including without limitation fees and
disbursements of counsel for the underwriters or selling holders in connection
with "blue sky" qualifications of the Registrable Securities and determination
of the eligibility of the Registrable Securities for investment under the laws
of such jurisdictions as the managing underwriters, if any, or holders of a
majority of the Registrable Securities being sold may designate)), (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 holders of a majority of the Registrable Securities included in
any Registration Statement), (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 6(m)(iii) hereof (including the expenses of any special audit and
"comfort" letters required by or incident to such performance), (vi) fees and
expenses of any "qualified independent underwriter" or other independent
appraiser participating in an offering pursuant to Section 3 of Schedule E to
the By-laws of the National Association of Securities Dealers, Inc., (vii)
Securities Act liability insurance if the Company so desires such insurance,
(viii) all fees and expenses in listing the Registrable Securities pursuant to
Section 6(e), and (ix) fees and expenses of all other persons retained by the
Company, provided, however, that Registration Expenses will not include fees and
expenses of counsel for the holders of Registrable Securities and any local
counsel nor shall it include underwriting discounts and commissions relating to
the offer and sale of Registrable Securities, all of which shall be borne by the
holders of Registrable Securities included in such registration pro rata in
proportion to the number of Registrable Securities of such holder included in
such registration. In addition, the Company will pay its internal expenses
(including without limitation all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange 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.
8. Indemnification. (a) Indemnification by the Company. The Company will,
without limitation as to time, indemnify and hold harmless, to the fullest
extent permitted by law, each holder of Registrable Securities registered
pursuant to this Agreement, the officers, directors and agents and employees of
each of them, each person who controls such holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents and employees of any such controlling person, from
and against all losses, claims, damages, liabilities, costs (including without
limitation the costs of investigation and attorneys' fees) and expenses
(collectively, "Losses"), as incurred, arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or form of Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, 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,
except insofar as the same are based solely upon information furnished in
writing to the Company by such holder or any underwriter expressly for use
therein; provided, however, that the Company will not be liable to any holder of
Registrable Securities to the extent that any such Losses arise out of or are
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if either (A) (i) such
holder failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale by such holder of a Registrable
Security to the person asserting the claim from which such Losses arise and (ii)
the Prospectus would have corrected in all material respects such untrue
statement or alleged untrue statement or such omission or alleged omission; or
(B) such untrue statement or alleged untrue statement, omission or alleged
omission is corrected in all material respects in an amendment or supplement to
the Prospectus previously furnished by or on behalf of the Company with copies
of the Prospectus as so amended or supplemented, and such holder thereafter
fails to deliver such Prospectus as so amended or supplemented prior to or
concurrently with the sale of a Registrable Security to the person asserting the
claim from which such Losses arise.
The rights of any holder of Registrable Securities hereunder will not be
exclusive of the rights of any holder of Registrable Securities under any other
agreement or instrument of any holder of Registrable Securities to which the
Company is a party. Nothing in such other agreement or instrument will be
interpreted as limiting or otherwise adversely affecting a holder of Registrable
Securities hereunder and nothing in this Agreement will be interpreted as
limiting or otherwise adversely affecting the holder of Registrable Securities'
rights under any such other agreement or instrument, provided, however, that no
Indemnified Party will be entitled hereunder to recover more than its
indemnified Losses.
(b) Indemnification by Holders of Registrable Securities. In connection
with any Registration Statement in which a holder of Registrable Securities is
participating, such holder of Registrable Securities will furnish to the Company
in writing such information as the Company reasonably requests for use in
connection with any Registration Statement or Prospectus and will severally
indemnify, to the fullest extent permitted by law, the Company, its directors
and officers, agents and employees, each person who controls the Company (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), and the directors, officers, agents or employees of such controlling
persons, from and against all Losses arising out of or based upon (i) any
disposition of Registrable Securities after receiving notice of a Black-Out and
prior to receiving Advice under Section 6 that use of the Prospectus may be
resumed or (ii) any untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary 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, to the extent, but only
to the extent, that such untrue statement or omission is finally judicially
determined by a court to have been contained in any information so furnished in
writing by such holder to the Company expressly for use in such Registration
Statement or Prospectus and was relied upon by the Company in the preparation of
such Registration Statement, Prospectus or preliminary prospectus. In no event
will the liability of any selling holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds (net of payment of all
expenses and underwriter's discounts and commissions) received by such holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. If any person shall become
entitled to indemnity hereunder (an "Indemnified Party"), such Indemnified Party
shall give prompt notice to the party from which such indemnity is sought (the
"Indemnifying Party") of any claim or of the commencement of any action or
proceeding with respect to which such Indemnified Party seeks indemnification or
contribution pursuant hereto; provided, however, that the failure to so notify
the Indemnifying Party will not relieve the Indemnifying Party from any
obligation or liability except to the extent that the Indemnifying Party has
been prejudiced materially by such failure. All fees and expenses (including any
fees and expenses incurred in connection with investigating or preparing to
defend such action or proceeding) will be paid to the Indemnified Party, as
incurred, within five calendar days of written notice thereof to the
Indemnifying Party upon receipt of an undertaking to repay such amount if it is
ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder). The Indemnifying Party will not consent to entry of
any judgment or enter into any settlement or otherwise seek to terminate any
action or proceeding in which any Indemnified Party is or could be a party and
as to which indemnification or contribution could be sought by such Indemnified
Party under this Section 8, unless such judgment, settlement or other
termination includes as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party of a release, in form and substance
reasonably satisfactory to the Indemnified Party, from all liability in respect
of such claim or litigation for which such Indemnified Party would be entitled
to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this Section 8 is
unavailable to an Indemnified Party under Section 8(a) or 8(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, will, jointly and severally, contribute to the amount paid or payable by
such Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party or
Indemnifying Parties, on the one hand, and such Indemnified Party, on the other
hand, in connection with the actions, statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations. The relative
fault of such Indemnifying Party or Indemnifying Parties, on the one hand, and
such Indemnified Party, on the other hand, will be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or related to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses will be deemed to include any legal or other fees or expenses
incurred by such party in connection with any action or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provision of this Section 8(d), an Indemnifying Party that
is a selling holder of Registrable Securities will 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 (net of any related expenses) 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) will 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 will be in addition to any liability the Company may otherwise
have hereunder, under the Series C Investment Agreement, the Series D Investment
Agreement or otherwise. The provisions of this Section 8 will survive any
termination of this Agreement.
9. Rules 144 and 144A. The Company will file the reports required to be
filed by it under the Securities Act and the Exchange Act in a timely manner,
and will cooperate with any holder of Registrable Securities (including without
limitation by making such representations as any such holder may reasonably
request), all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act within
the limitations of the exemptions provided by Rules 144 and 144A (including,
without limitation, the requirements of Rule 144A(d)(4)). Upon the request of
any holder of Registrable Securities, the Company will deliver to such holder a
written statement as to whether it has complied with such filing requirements.
10. Underwritten Registrations. If any of the Registrable Securities
covered by any Demand Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the holder of Registrable Securities
that gave the Demand Notice with respect to such offering; provided that such
investment banker or manager shall be reasonably satisfactory to the Company. If
any Piggyback Registration is an underwritten offering, the Company will have
the right to select the investment banker or investment bankers and managers to
administer the offering.
11. 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 will waive
the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not, as of the date hereof,
and will not, on or after the date hereof, enter into any agreement with respect
to its securities which conflicts with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. This Agreement will be deemed to be an independent agreement
and no limitation or restriction contained in this Agreement will be deemed to
conflict with, limit or restrict the rights of the Stockholder under this
Agreement.
(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 then-outstanding 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 51% of the
Registrable Securities being sold by such holders; provided, however, 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 will be deemed given (i) when made, if
made by hand delivery, (ii) upon confirmation, if made by fax, or (iii) one
business day after being deposited with a reputable next-day courier, postage
prepaid, to the parties as follows:
(x) if to the Company, at 9690 Deereco Road, Suite 100 Timonium,
Maryland 21093, Attn: Chief Financial Officer; Fax No.: (734) 887-0388, or
at such other address, notice of which is given to the holders of
Registrable Securities in accordance with the provisions of this Section
11(d);
(y) if to the Stockholder, at 4200 Texas Commerce Tower West, 2200
Ross Avenue, Dallas, Texas 75201, Attention: William T. Cavanaugh; Fax No.:
(214) 220-4949, or at such other address, notice of which is given in
accordance with the provisions of Section 11(d); and
(z) if to any other holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with the
provisions of this Section 11(d).
(e) Owner of Registrable Securities. The Company will maintain, or will
cause its registrar and transfer agent to maintain, a stock book with respect to
the Series C Preferred, the Series D Preferred and the Common Stock, 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 the stock book of the Company as the
owner thereof for all purposes, including without limitation the giving of
notices under this Agreement.
(f) Successors and Assigns. This Agreement will inure to the benefit of and
be binding upon the successors and permitted assigns of each of the parties and
will inure to the benefit of each holder of any Registrable Securities. The
Company may not assign its rights or obligations hereunder without the prior
written consent of each holder of any Registrable Securities. The holders of the
Registrable Securities may assign the rights and obligations under this
Agreement to any subsequent holder of such Registrable Securities.
Notwithstanding the foregoing, no transferee will have any of the rights granted
under this Agreement (i) until such transferee shall have acknowledged its
rights and obligations hereunder by a signed written statement of such
transferee's acceptance of such rights and obligations or (ii) if the transferor
notifies the Company in writing on or prior to such transfer that the transferee
shall not have such rights.
(g) 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 will be deemed to be an original and all of which taken
together will constitute one and the same instrument.
(h) Headings. The headings in this Agreement are for convenience of
reference only and will not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
(j) Jurisdiction; Consent to Service of Process.
(A) Each party hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of any state or
federal court located in the State of Delaware (as applicable, a "Delaware
Court"), and any appellate court from any such court, in any suit, action
or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment resulting from any such suit,
action or proceeding, and each party hereby irrevocably and unconditionally
agrees that all claims in respect of any such suit, action or proceeding
may be heard and determined in the Delaware Court.
(B) It will be a condition precedent to each party's right to bring
any such suit, action or proceeding that such suit, action or proceeding,
in the first instance, be brought in the Delaware Court (unless such suit,
action or proceeding is brought solely to obtain discovery or to enforce a
judgment), and if each such court refuses to accept jurisdiction with
respect thereto, such suit, action or proceeding may be brought in any
other court with jurisdiction; provided that the foregoing will not apply
to any suit, action or proceeding by a party seeking indemnification or
contribution pursuant to this Agreement or otherwise in respect of a suit,
action or proceeding against such party by a thirty party if such suit,
action or proceeding by such party seeking indemnification or contribution
is brought in the same court as the suit, action or proceeding against such
party.
(C) No party may move to (i) transfer any such suit, action or
proceeding from the Delaware Court to another jurisdiction, (ii)
consolidate any such suit, action or proceeding brought in the Delaware
Court with a suit, action or proceeding in another jurisdiction, or (iii)
dismiss any such suit, action or proceeding brought in the Delaware Court
for the purpose of bringing the same in another jurisdiction.
(D) Each party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, (i) any objection
which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in the
Delaware Court, (ii) the defense of an inconvenient forum to the
maintenance of such suit, action or proceeding in any such court, and (iii)
the right to object, with respect to such suit, action or proceeding, that
such court does not have jurisdiction over such party. Each party
irrevocably consents to service of process in any manner permitted by law.
Notwithstanding the foregoing, this Section 11(j) will not apply to any
suit, action or proceeding to enforce a judgment of a Delaware Court.
(k) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein will remain in full force and effect and will in
no way be affected, impaired or invalidated, and the parties hereto will 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, 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 registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and understandings
among the parties with respect to such registration rights.
(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, will be entitled
to recover reasonable attorneys' fees in addition to any other available remedy.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
EXPLORER HOLDINGS, L.P.
By: Explorer Holdings GenPar, LLC,
its General Partner
By: /s/ WILLIAM T. CAVANAUGH, JR.
--------------------------------------
William T. Cavanaugh, Jr.
Vice President
OMEGA HEALTHCARE INVESTORS, INC.
By: /s/ C. TAYLOR PICKETT
--------------------------------------
C. Taylor Pickett
Chief Executive Officer