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EXHIBIT 10.112
FORM OF
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
(this "Agreement"), dated as of January 31, 1994, is entered into by and among
Regency Health Services, Inc., a Delaware corporation (the "Company"), Care
Enterprises, Inc., a Delaware corporation ("Care"), and the parties signatory
to this Agreement (each, a "Holder" and collectively, the "Holders").
WHEREAS, the Company and Care entered into an Agreement and
Plan of Merger, dated as of December 20, 1993, as amended by an Amendment to
Agreement and Plan of Merger, dated as of January 31, 1994 (the "Merger
Agreement"), pursuant to which Care Merger Sub, Inc., a Delaware corporation
and a wholly owned subsidiary of Regency, will be merged with and into Care
(the "Merger").
WHEREAS, pursuant to the Merger Agreement, at the effective
time of the Merger (the "Effective Time"), each share of common stock of Care
outstanding prior to the Effective Time will be converted into 0.71 of a share
(the "Merger Common Stock") of the Company's common stock, par value $.01 per
share (the "Common Stock").
WHEREAS, pursuant to Section 7.12 of the Merger Agreement, the
Company has agreed to use its best efforts to enter into a Registration Rights
Agreement with each person who will be an Affiliate (as defined in the Merger
Agreement) of the Company after the Effective Time and each person who
presently has registration rights with respect to shares of Common Stock.
WHEREAS, pursuant to the Amended and Restated Registration
Rights Agreement (the "Company Registration Rights Agreement"), dated as of
January 21, 1992, by and among the Company and the stockholders named therein
(collectively, the "Regency Holders"), the Company granted certain registration
rights to the Regency Holders.
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WHEREAS, pursuant to the Stock Purchase Agreement (the "Stock
Purchase Agreement"), dated as of December 15, 1992, by and among Care and
Foothill Group Inc., Foothill Partners and Energy Management Corporation
(collectively, the "Stock Purchase Holders"), Care granted certain registration
rights to the Stock Purchase Holders.
WHEREAS, pursuant to the Note Purchase, Loan and Guaranty
Agreement (the "Note Purchase Agreement"), first closing date December 31, 1990
and second closing date January 18, 1991, by and among Care and Care
Enterprises West and Solvation Inc., d/b/a Smith Management Company,
participated in by Foothill Capital Corporation (collectively, the "Note
Purchase Holders"), Care granted certain registration rights to the Note
Purchase Holders.
WHEREAS, each person listed on the signature pages hereto
under the heading "Affiliates" (collectively, the "Affiliates") will be an
Affiliate of the Company after the Effective Time.
WHEREAS, the parties hereto desire to amend and restate each
of the Company Registration Rights Agreement and the provisions relating to
registration rights in the Stock Purchase Agreement and the Note Purchase
Agreement.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. As used in this Agreement:
(a) "Shares" shall mean and include any of the
following securities:
(i) as to the Regency Holders, (A) shares of Common Stock
issued to the Regency Holders pursuant to a Purchase Agreement dated
as of December 31, 1986, as amended by a First Amendment to Purchase
Agreement, (B) shares of Common Stock issued upon conversion of Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock
and Series D Preferred Stock (the "Series D Stock") previously issued
to certain of the Regency Holders (including shares of Series D Stock
issued upon conversion of Series D Convertible Secured Subordinated
Promissory Notes), (C) shares of Common Stock issuable to Regency
Holders upon
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exercise of the Series C Common Stock Purchase Warrants and
Series D Warrants issued to certain of the Regency Holders, and (D)
shares of Common Stock issued or issuable in connection with the
merger of a wholly owned subsidiary of the Company with and into
Hallmark Health Services, Inc., provided that such shares have not
been sold to the public pursuant to a registered public offering or
pursuant to Rule 144 ("Rule 144") under the Securities Act of 1993, as
amended (the "Securities Act") ,
(ii) as to the Stock Purchase Holders and the Affiliates, all
Merger Common Stock issued to the Stock Purchase Holders and the
Affiliates in exchange for shares of Care common stock held by the
Stock Purchase Holders and the Affiliates,
(iii) as to the Note Purchase Holders, (A) Common Stock issued
to the Note Purchase Holders in exchange for (x) any and all Secured
Convertible Exchangeable Notes of Care issued pursuant to the Note
Purchase Agreement (the "Convertible Notes") and (y) shares of Series
A Convertible Preferred Stock of Care issued in exchange for
Convertible Notes (the "Preferred Shares"), and (B) all Merger Common
Stock issued to the Note Purchase Holders in exchange for shares of
Care common stock held by the Note Purchase Holders, and
(iv) any additional securities issued to Holders with respect
to the foregoing upon any stock split, stock dividend,
recapitalization, dilution adjustment or similar event,
provided, however, that any shares of Common Stock or Merger Common Stock sold
to the public pursuant to a registered public offering or pursuant to Rule 144
under the Securities Act shall cease to be Shares.
(b) The terms "register," "registered," and
"registration" refer to a registration effected by filing with the Securities
and Exchange Commission (the "SEC") a registration statement ("Registration
Statement") in compliance with the Securities Act and the declaration or
ordering by the SEC of the effectiveness of such Registration Statement.
2. [Intentionally omitted]
3. Piggyback Registration Rights.
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(a) If (but without any obligation to do so) at any
time or from time to time, the Company shall determine to register (including
for this purpose a registration effected by the Company for stockholders other
than the Holders) any of its securities, either for its own account or the
account of a security holder or holders, other than a registration relating
solely to employee stock option or purchase plans, a registration relating
solely to a transaction pursuant to Rule 145 promulgated under the Securities
Act, a registration on Form S-4 or any successor form or a registration on any
other form (other than Form S-1, S-2, S-3, or S-8 or any successor form) that
does not include substantially the same information as would be required to be
included in a Registration Statement covering the sale of the Shares, the
Company will:
(i) promptly give to each Holder written
notice thereof (which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the applicable blue
sky or other state securities laws); and
(ii) include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Shares specified in a written request or
requests, made within 30 days after receipt of such written notice from the
Company, by any Holder or Holders, except as set forth in Section 3(b) or
Section 4(c) hereof.
(b) If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to subparagraph (a)(i) of this Section 3. In such event, the right of
any Holder to registration pursuant to this Section 3 shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Shares in the underwriting to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall,
together with the Company and the other parties distributing their securities
through such underwriting, enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 3, if the
underwriter determines that marketing factors require a limitation of the
number of shares of Common Stock to be underwritten and the underwriter has
eliminated all securities being sold by other selling stockholders, the
underwriter may limit the number of Shares to be included in the registration
and underwriting, or may exclude Shares entirely from such registration and
underwriting. Shares shall have priority over all other Common Stock in any
such
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underwriting other than the Common Stock offered by the Company. The Company
shall so advise all Holders of Shares that would otherwise be registered and
underwritten pursuant hereto, and the number of Shares that may be included in
the registration and underwriting shall be allocated among the Holders thereof
in proportion, as nearly as practicable, to the respective amounts of Shares
otherwise entitled to inclusion in such registration held by each such Holder
at the time of filing the Registration Statement. No Shares excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If any Holder disapproves of the terms of the
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the underwriter. The Shares so withdrawn shall also be withdrawn
from registration and, if the total number of Shares to be underwritten has
been limited, there shall be a reallocation of the amounts of participation of
the other Holders.
4. Demand Registration Rights.
(a) If at any time the Company shall receive from
the Stock Purchase Holders, the Note Purchase Holders and the Affiliates
(together, the "Demand Holders") holding not less than 66 2/3% of the aggregate
outstanding Shares held by the Demand Holders (the "Demand Shares") a written
demand that the Company file a Registration Statement (including a "shelf"
registration pursuant to Rule 415 promulgated under the Securities Act (a
"Shelf Registration")) under the Securities Act of all or part of the Shares (a
"Demand Registration"), the Company will:
(i) promptly give written notice of the
proposed registration to all other Demand Holders; and
(ii) use its diligent best efforts to
effect such registration as soon as practicable (including, without limitation,
the execution of an undertaking to file post-effective amendments, appropriate
qualification under the applicable blue sky or other state securities laws, and
appropriate compliance with exemptive regulations issued under the Securities
Act and any other government requirements or regulations) as may be so demanded
and as will permit or facilitate the sale and distribution of all or such
portion of such Shares as are specified in such demand, together with all or
such portion of the Shares of any Holder or Holders joining in such demand as
are specified in a written demand received by the Company within 30 days after
such written notice is given, provided that the Company shall not be obligated
to effect a registration, qualification, or compliance under this Section 4 if
the Company shall have registered
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Common Stock pursuant to a demand made hereunder within six months preceding
the receipt of the demand (or, if the Company is not then entitled to use Form
S-2 or S-3, within 11 months preceding the receipt of the demand); and
(iii) Subject to the foregoing, the Company
shall file a Registration Statement covering the Shares so demanded to be
registered as soon as practicable, but in any event within 90 days after
receipt of the demand or demands of the Holders; provided, however, that if the
Company shall furnish to such Holders a certificate signed by the Chief
Executive Officer of the Company stating that in the good faith judgment of the
board of directors of the Company it would be seriously detrimental to the
Company and its stockholders for such Registration Statement to be filed at the
date filing would be required, the Company shall have an additional period of
not more than 90 days within which to file such Registration Statement.
(b) If the Demand Holders intend to distribute the
Shares covered by their demand by means of an underwriting, they shall so
advise the Company as part of their demand made pursuant to this Section 4,
and, subject to the Company's contractual obligations, a majority in interest
of the Holders making the demand may designate an underwriter reasonably
acceptable to the Company; and the Company shall include such information in
the written notice referred to in this Section 4. In such event, the right of
any Holder to registration pursuant to this Section shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Shares in the underwriting (unless otherwise mutually agreed by a
majority in interest of the Holders making the demand and such Holder) to the
extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall, together with the Company, enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected by such Holders, subject to the reasonable approval of the Company.
Notwithstanding any other provision of this Section 4, if the underwriter
determines that marketing factors require a limitation of the number of shares
of Common Stock to be underwritten, then the Company shall so advise all
Holders of Shares that would otherwise be registered and underwritten pursuant
hereto, and the number of Shares that may be included in the registration and
underwriting shall be allocated among the Holders thereof pro rata in
proportion, as nearly as practicable, to the respective amounts of Shares held
by such Holders at the time of filing the Registration Statement. No Shares
excluded from the underwriting by reason of the underwriter's marketing
limitation shall be included in such registration. If any Holder disapproves
of the terms of the underwriting, he may elect to withdraw therefrom by written
notice
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to the Company, the underwriter and the Holders making the demand. The Shares
so withdrawn shall also be withdrawn from registration and, if the total number
of Shares to be underwritten has been limited, there shall be a reallocation of
the amounts of participation of the other Holders.
(c) Shares shall have priority over any other
securities of the Company in determining which securities may be included in a
registration effected pursuant to this Section 4, including securities offered
for the Company's own account. The Holders or their representatives shall have
the right, if in their reasonable opinion market factors so require, to limit
the amount of such other securities that may be included in any such
registration.
(d) Notwithstanding anything to the contrary in this
Section 4, at any time after a request for registration is made under this
Section 4, any Holder who has requested registration of its Shares or has
notified the Company of its desire to include its Shares in such registration
may withdraw from such registration by giving written notice to the Company.
5. Expenses of Registration. All expenses incurred in
connection with any registration, qualification, or compliance pursuant to this
Agreement, including without limitation all registration, filing, and
qualification fees, printing expenses, escrow fees, fees and disbursements of
counsel for the Company and of one counsel for the participating Holders, and
expenses of any special audits incidental to or required by such registration,
shall be borne by the Company; provided, however, that the Company shall not be
required to pay for (i) stock transfer taxes or underwriters' fees, discounts,
commissions or expenses relating to the Shares or the distribution of the
Shares, (ii) any expenses relating to more than one registration pursuant to
Section 4 and (iii) any expenses of any registration proceeding if the
registration request is subsequently withdrawn at any time at the request of
the Holders of a majority of the Shares to be registered (in which case all
participating Holders shall bear such expenses pro rata).
6. Registration Procedures. In the case of each
registration, qualification or compliance effected by the Company pursuant to
this Agreement, the Company will keep each Holder participating therein advised
in writing as to the initiation of such registration, qualification and
compliance and as to the completion thereof.
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The Company will also:
(a) Prepare and file with the SEC a registration
statement with respect to such Shares on Form S-1 or such other general form as
to permit registration of the Shares (including Form S-2 or S-3 if the Company
then qualifies for the use of such form), and use its best efforts to cause
such registration to become effective.
(b) Upon the request of the Holders of a majority of
the Shares registered thereunder, (i) in the case of a registration pursuant
to Section 4 other than a Shelf Registration, keep such Registration Statement
effective for up to nine months or until the Holders thereof have informed the
Company in writing that the distribution of their Shares has been completed,
whichever shall occur first, and (ii) in the case of a Shelf Registration
pursuant to Section 4, keep such Shelf Registration effective for up to 18
months or until the Holders thereof have informed the Company in writing that
the distributions of their Shares have been completed, whichever shall occur
first.
(c) Prepare and file with the SEC such amendments
and supplements to such Registration Statement, and use its best efforts to
cause each such Registration Statement to become effective, as may be necessary
to comply with the provisions of the Securities Act.
(d) Furnish such number of prospectuses and other
documents incident thereto as a Holder from time to time may reasonably
request.
(e) Upon the request of Holders holding at least 5%
of the Shares, but no more frequently than once per quarter, prepare such
supplemental or amended prospectuses as may be required to disclose the
intended method of distribution with respect to a proposed sale by Holders
participating therein of any Shares.
(f) Use its best efforts to register and qualify the
Shares covered by such Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection
therewith or as a condition thereto to (i) qualify to do business or (ii)
register to transact business as a "broker/dealer" (except in jurisdictions
where such registration would not subject the Company to liability as a
"broker/dealer" generally, or in jurisdictions where no significant expense is
involved in the registration and maintenance of
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the Company as a "broker/dealer," such as, by way of example only, the State of
New York).
(g) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also enter into
and perform it obligations under such an agreement, including furnishing any
opinion of counsel or entering into a lock-up agreement reasonably requested by
the managing underwriter.
(h) Notify each Holder of securities covered by such
Registration Statement, at any time when a prospectus relating thereto covered
by such Registration Statement is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statement therein not misleading in the light
of the circumstances then existing and promptly file such amendments and
supplements which may be required pursuant to subparagraph (c) of this Section
6 on account of such event and use its best efforts to cause each such
amendment and supplement to become effective.
(i) With respect to registrations pursuant to
Section 4 only, furnish, at the request of any Holder requesting registration
of securities pursuant to such Section 4, on the date that such securities are
delivered to the underwriters for sale in connection with a registration
pursuant to such Section 4, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters on
the date that the registration statement with respect to such securities
becomes effective, (i) an opinion, dated such date, of the counsel representing
the Company for the purposes of such registration, in form and substance as is
customarily given by company counsel to the underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of securities and (ii) a letter dated such date, from
the independent certified public accountant of the Company, in form and
substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of securities.
It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement that each seller of
Shares as to
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which any registration is being effected furnish to the Company such
information regarding such Holder and the distribution of such Shares as may be
required to be disclosed in the Registration Statement in question by the rules
and regulations under the Securities Act or under any other applicable
securities or blue sky laws.
Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event as a result of which the prospectus
included in the Registration Statement contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, such Holder will
forthwith discontinue disposition of Shares pursuant to the Registration
Statement covering such Shares until such Holder's receipt of a supplemented or
amended prospectus so that such prospectus will not contain an 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, if so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Shares current at the time
of receipt of such notice. In any such event, the Company will promptly
prepare and file and use best efforts to cause to be declared effective a
supplement or amendment to such prospectus such that the prospectus will not
contain an 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.
7. Indemnification.
(a) To the extent permitted by law, the Company will
indemnify each Holder, each of such Holder's officers, directors and agents,
and each person controlling such Holder, with respect to any registration,
qualification, or compliance effected pursuant to this Agreement and each
underwriter, if any, and each person who controls any underwriter, of the
Shares held by or issuable to such Holder, against all claims, losses, damages,
and liabilities (or actions in respect thereto) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular, or other document (including any related
Registration Statement, notification, or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation of
the Company of any rule or regulation promulgated under the Securities
Exchange Act of 1934, as amended (the
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"Exchange Act"), any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification, or compliance,
and will reimburse each such Holder, each such underwriter, and each such
director, officer, agent and controlling person, for any legal (provided that
the Company shall reimburse the legal fees and expenses of no more than one law
firm for all such Holders) and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this Section 7 shall not apply to amounts paid in settlement of any such
claim, loss, damage, liability or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case to the extent that any such
claim, loss, damage or liability arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company
by an instrument duly executed by such Holder or underwriter specifically for
use therein.
(b) To the extent permitted by law, each Holder
will, if Shares held by or issuable to such Holder are included in the
securities as to which such registration, qualification or compliance is being
effected, indemnify the Company, each of its directors and officers who sign a
Registration Statement in connection therewith, and each person controlling the
Company, each underwriter, if any, and each person who controls any
underwriter, of the Company's securities covered by such a Registration
Statement, and each other Holder, each of such other Holder's officers,
directors and agents and each person controlling such other Holder, against all
claims, losses, damages, and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue statement)
of a material fact contained in a written document furnished by or on behalf of
such Holder specifically for use in and actually contained in any such
Registration Statement, prospectus, offering circular, or other document filed
by the Company and relating to the registration or qualification of such
Holder's Shares, and will reimburse the Company, each such underwriter, each
such other Holder, and each such director, officer and controlling person, for
any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
provided, however, that the liability of any Holder hereunder shall be limited
to the amount of proceeds received by such Holder in the offering giving rise
to the loss, claim, damage, liability or action; provided, further, that the
indemnity agreement contained in this Section 7 shall not apply to amounts paid
in settlement of any
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such claim, loss, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld). Each Holder agrees to notify the Company as promptly as practicable
of any inaccuracy or change in information previously furnished by such Holder
to the Company or of the occurrence of any event in either case as a result of
which any prospectus relating to such registration contains or would contain an
untrue statement of a material fact regarding such Holder or such Holder's
intended method of distribution of such Shares or omits to state any material
fact regarding such Holder or such Holder's intended method of distribution of
such Shares required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and
promptly to furnish to the Company any additional information required to
correct and update any previously furnished information or required so that
such prospectus shall not contain, with respect to such Holder or the
distribution of such Shares, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
The Company may require, as a condition to entering into any
sales or placement agency agreement or underwriting agreement with respect to
any Shares, that the Company shall have received an undertaking in customary
form and substance reasonably satisfactory to it from any agent named in any
such sales or placement agency agreement and from each underwriter named in any
such underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company, each of its officers and directors, and all other
Holders, and each of their officers and directors, against any losses, claims,
damages or liabilities to which the Company or such other persons may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such agent or
underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the 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 each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by such agent or underwriter expressly for use therein, and (ii)
reimburse the Company for any
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legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim.
(c) Each party entitled to indemnification under
this Agreement (the "Indemnified Party") shall give notice to the party
required to provide such indemnification (the "Indemnifying Party") of any
claim as to which indemnification may be sought promptly after such Indemnified
Party has actual knowledge thereof, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be subject to approval by the Indemnified
Party (whose approval shall not be unreasonably withheld), and the Indemnified
Party any participate in such defense at such party's own expense, and provided
further that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Agreement. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff therein,
to such Indemnified Party, of a release from all liability in respect to such
claim or litigation.
(d) The obligations under this Section 7 shall
survive the completion of any offering of Shares in a Registration Statement.
8. [Intentionally omitted]
9. Transfer of Registration Rights. The rights granted to
the Holders to cause the Company to register the Shares pursuant to Sections 3
and 4 above may be assigned by the Holder to a transferee or assignee of any
Shares; provided that the Company is given written notice by the Holder at the
time of or within a reasonable time after said transfer, stating the name and
address of said transferee or assignee and identifying the Shares with respect
to which such registration rights are being assigned.
10. Limitations on Subsequent Registration Rights. The
Company shall not, without the prior written consent of the Holders of not less
than fifty-one percent (51%) of the Shares, enter into any agreement with any
holder or prospective holder of any securities of the Company which would allow
such holder or prospective holders to include any securities in any
registration filed under (i) under Section 3 hereof, unless, under the terms of
such agreement, such
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holder or prospective holder may include such securities in any such
registration statement only on a basis no more favorable than that of Holders,
or (ii) Section 4 hereof, unless, under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his securities will not
diminish the amount of Shares which are included in such registration.
11. Reports Under the Exchange Act. With a view to making
available to the Holders the benefits of Rule 144 the Company agrees to use its
best efforts: (i) to file with the SEC in a timely manner all reports and
other documents required to be filed by an issuer of securities registered
under the Securities Act or Exchange Act, and (ii) so long as any Holder owns
any of the Shares, to furnish in writing upon such Holder's request the
following information:
(A) the Company's name, address and telephone number;
(B) the Company's Internal Revenue Service identification
number;
(C) the Company's SEC file number;
(D) the number of shares of Common Stock issued and
outstanding as shown by the most recent report or statement published by the
Company; and
(E) whether the Company has filed all reports required to
be filed pursuant to sections 13 or 15(d) of the Exchange Act during the
preceding 12 months. With respect to a rule or regulation of the SEC (other
than Rule 144) which may at any time permit a Holder to sell Shares to the
public without registration, the Company agrees to take such action as is
reasonable to enable utilization of such rule.
12. Termination of Registration Rights. The registration
rights granted pursuant to this Agreement shall terminate as to each Holder and
any subsequent transferee (i) in the case of registration rights provided
pursuant to Section 3 hereof, upon the expiration of five years from the
Effective Time of the Merger, and (ii) in the case of registration rights
provided pursuant to Section 4 hereof, upon the expiration of three years from
the Effective Time of the Merger.
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13. [Intentionally omitted]
14. Modification and Waiver. The parties may amend, modify
or supplement this Agreement in such manner as may be agreed upon in writing at
any time by the Company and Holders of not less than 66 2/3% of the Shares.
Any party may by an instrument in writing extend the time for or waive the
performance of any of the obligations of the other or waive compliance by the
other with any of the provisions contained herein. The failure of any party at
any time or times to require performance of any provision hereof shall in no
manner affect such party's right at a later date to enforce the same. No
waiver by any party of a breach of this Agreement, whether by conduct or
otherwise, in any one or more instances shall be deemed to be construed as a
further or continuing waiver of such breach of a waiver of any condition or of
any other breach of this Agreement.
15. Notices. Any notices or other communications required or
permitted hereunder shall be deemed to have been duly given when delivered
personally or sent by registered or certified mail, postage prepaid (return
receipt requested), to the party to whom such notice or communication is
addressed at the following addresses (or at such other address for a party as
shall be specified by like notice):
To Holders: At addresses shown on the signature pages hereto
To the Company: (prior to the Effective Time)
Regency Health Services, Inc.
3636 Birch Street, Suite 195
Newport Beach, California 92660
Attention: Mr. Cecil Mays
(after the Effective Time)
Regency Health Services, Inc.
2742 Dow Avenue
Tustin, California 92680-7245
Attention: Mr. Cecil Mays
16. Gender and Number, Etc. All words or terms used in this
Agreement, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
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require. "Hereof," "herein," and "hereunder" and words of similar import shall
be construed to refer to this Agreement as a whole, and not to any particular
paragraph or provisions, unless expressly so stated.
17. Non-Assignment. Except as otherwise provided in Section
9 herein, this Agreement shall not be assignable by any party without the
written consent of all other parties hereto. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the respective
successors, assigns, heirs and personal representatives of the parties hereto.
18. Counterparts. This Agreement may be executed in any
number of counterparts with the same effect as if the signatures to each
counterpart were upon the same instrument.
19. Entire Agreement/Captions. This Agreement sets forth the
entire understanding of the parties hereto and supersedes all prior agreements,
arrangements and communications, whether oral or written between or among the
parties with respect to the subject matter hereof. Captions appearing in this
Agreement are for convenience of reference only and shall not be deemed to
explain, limit or amplify the provisions hereof.
20. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to principles of conflicts of law.
21. Severability. If any provisions contained in this
Agreement shall for any reason be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not invalidate
the entire Agreement. Such provision shall be deemed to be modified to the
extent necessary to render it valid and enforceable and if no such modification
shall render it valid and enforceable then the Agreement shall be construed as
if not containing such provision.
22. No Third Party Beneficiaries. Nothing herein expressed
or implied is intended to confer upon any person, other than the parties hereto
or their respective permitted assigns, successors, heirs and legal
representatives, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
23. No Partnership or Joint Venture. Notwithstanding
anything to the contrary contained herein, nothing contained herein shall be
construed as
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creating a partnership or joint venture relationship between the parties
hereto, and the parties hereto shall be deemed to have made any election
necessary under applicable law, rule or regulation to prevent their being
considered or deemed to be a partnership or joint venture.
24. No Impairment. The Company will not take any action, or
fail to take any action, avoid or seem to avoid the observance or performance
of any of the terms to be performed by Company hereunder and Company will at
all times act in good faith to assist Holders in the carrying out of the
provisions of this Agreement as may be necessary to preserve and protect the
registration rights of Holders under this Agreement.
25. Effective Date. Notwithstanding any other provision of
this Agreement, as to the Demand Holders this Agreement shall only become
effective upon the Effective Time, and the Demand Holders shall have no rights
hereunder unless and until the occurrence of the Effective Time. This
Agreement shall be effective as of the date first written above as to the
Regency Holders regardless of the occurrence of the Effective Time.
26. Effect on Agreements.
(a) Regency Holders agree that the Company
Registration Rights Agreement is hereby amended and restated in its entirety as
set forth herein.
(b) Stock Purchase Holders agree that the provisions
relating to registration rights in the Stock Purchase Agreement, including
without limitation the provisions of Section 6 thereof, are hereby amended and
restated in their entirety as set forth herein, and that in the event of any
conflict between the provisions of the agreements as they relate to
registration rights (e.g., notice, waiver, amendment), the provisions of this
Agreement shall prevail.
(c) Note Purchase Holders agree that the provisions
relating to registration rights in the Note Purchase Agreement, including
without limitation the provisions of Section 11 thereof, are hereby amended and
restated in their entirety as set forth herein, and that in the event of any
conflict between the provisions of the agreements as they relate to
registration rights (e.g., notice, waiver, amendment), the provisions of this
Agreement shall prevail.
18746
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
COMPANY: REGENCY HEALTH SERVICES, INC.
By: /s/
-------------------------------
Name: Cecil Mays
Title: President
CARE: CARE ENTERPRISES, INC.
By: /s/
-------------------------------
Name: Richard M. Matros
Title: President
REGENCY HOLDERS: EL DORADO INVESTMENT COMPANY
By: /s/
-------------------------------
Name: Gregory S. Anderson
Title: Managing Director
Address: 400 E. Van Buren
Suite 650
Phoenix, Arizona 85004
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SUNDANCE CAPITAL CORPORATION
By:
---------------------------------
Name: Gregory S. Anderson
Title: Vice President
Address: 400 E. Van Buren
Suite 650
Phoenix, Arizona 81004
------------------------------------
Peter Madigan
Address:
---------------------------
---------------------------
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--------------------------------------
Cecil Mays
Address: c/o Regency Health
Services, Inc.
3636 Birch Street, Suite 195
Newport Beach, California
92660
ENTERPRISE PARTNERS
By:
--------------------------------------
Name:
Title:
Address:
-----------------------------
-----------------------------
MBW VENTURE PARTNERS LIMITED PARTNERSHIP
By: MBW Management, Inc., its Authorized
Agent
By:
--------------------------------------
Name:
Title:
Address:
-----------------------------
-----------------------------
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MICHIGAN INVESTMENT FUND, L.P.
By: MBW Management, Inc., its Authorized
Agent
By:
-----------------------------------------
Name:
Title:
Address:
--------------------------------
--------------------------------
---------------------------------------------
James R. Weersing, Trustee for the Weersing
Family Trust u/d/t April 24, 1991
Address:
------------------------------------
------------------------------------
---------------------------------------------
Robert J. Harrington
Address:
------------------------------------
------------------------------------
---------------------------------------------
Lawrence A. Brown, Jr.
Address:
------------------------------------
------------------------------------
---------------------------------------------
Ned M. Weinshenker, Trustee for Ned M.
Weinshenker Profit Sharing Plan
Address:
------------------------------------
------------------------------------
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-------------------------------------------
Philip E. McCarthy for Philip E. McCarthy
Pension Plan
Address:
----------------------------------
----------------------------------
STOCK PURCHASE ENERGY MANAGEMENT
HOLDERS: CORPORATION
By:
---------------------------------------
Name: Jeffrey A. Smith
Title: President
Address: 767 Third Avenue
New York, New York 10017
THE FOOTHILL PARTNERS, L.P.,
a Delaware limited partnership
By:
---------------------------------------
Name: Jeff Nakora
Title: Vice President
Address: 11111 Santa Monica Boulevard
Los Angeles, California 90025
THE FOOTHILL GROUP, INC.
By:
---------------------------------------
Name: Jeff Nakora
Title: Vice President
Address: 11111 Santa Monica Boulevard
Los Angeles, California 90025
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NOTE PURCHASE SOLVATION INC.
HOLDERS: d/b/a SMITH MANAGEMENT COMPANY
By:
----------------------------------------
Name: John W. Adams
Title: President
Address: 767 Third Avenue
New York, New York 10017
FOOTHILL CAPITAL CORPORATION
By:
----------------------------------------
Name: Jeff Nakora
Title: Vice President
Address: 11111 Santa Monica Boulevard
Los Angeles, California 90025
AFFILIATES: WOODSTEAD ASSOCIATES, L.P.,
a Texas limited partnership
By:
----------------------------------------
Name: Randall D. Smith
Title: General Partner
Address: 767 Third Avenue
New York, New York 10017
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-------------------------------------------
Randall D. Smith
Address: 767 Third Avenue
New York, New York 10017
THE DURIAN TRUST
By:
---------------------------------------
Jeffrey A. Smith, Trustee
Address: 767 Third Avenue
New York, New York 10017
SEGA ASSOCIATES, L.P.
By:
---------------------------------------
John W. Adams
Address: 767 Third Avenue
New York, New York 10017
THE FOOTHILL MANAGERS LIMITED II,
a California limited partnership
By:
---------------------------------------
Name: Jeff Nakora
Title: Vice President
Address: 11111 Santa Monica Boulevard
Los Angeles, California 90025
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----------------------------------------
John F. Nickoll
Address: 11111 Santa Monica Boulevard
Los Angeles, California 90025
----------------------------------------
Robert G. Coo
Address: 710 Zwissig Way
Union City, California 94587
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THE FOOTHILL FUND,
a California limited partnership
By:
---------------------------------------
Name: Jeff Nakora
Title: Vice President
Address: 11111 Santa Monica Boulevard
Los Angeles, California 90025
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