EXHIBIT 1.3
EXECUTION COPY
HH ACQUISITION CORP.
40,000 Shares of 13 1/2% Exchangeable Preferred Stock
REGISTRATION RIGHTS AGREEMENT
-----------------------------
July 31, 1998
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
BT ALEX. BROWN INCORPORATED
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
HH Acquisition Corp., a Delaware corporation (the "Issuer"), proposes
------
to issue and sell to Morgan Stanley & Co. Incorporated, Chase Securities Inc.
and BT Alex. Brown Incorporated (collectively, the "Placement Agents"), upon the
----------------
terms and subject to the conditions set forth in a placement agreement dated
July 29, 1998 between the Issuer and the Placement Agents (the "Placement
---------
Agreement"), an aggregate of 40,000 shares of its 13 1/2% Exchangeable Preferred
- ---------
Stock (the "Securities"). The Securities will be issued pursuant to a
----------
Certificate of Designation to be dated the Closing Date (as the same may be
amended from time to time in accordance with the terms thereof, the
"Certificate") executed by the Issuer. United States Trust Company of New York
-----------
is the transfer agent (the "Transfer Agent") for the Securities. The Securities
--------------
will be exchangeable, at the option of the Company, into 13 1/2% Subordinated
Exchange Debentures due 2010 to be issued
pursuant to the provisions of an indenture, if applicable, to be dated the date
of such exchange. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Placement Agreement.
The Issuer has entered into an Agreement and Plan of Merger dated as
of April 15, 1998 (the "Merger Agreement") with Harborside Healthcare
----------------
Corporation, a Delaware corporation (the "Company"), pursuant to which the
-------
Issuer will merge with and into the Company (the "Merger"), and the Company will
------
be the surviving corporation.
As an inducement to the Placement Agents to enter into the Placement
Agreement and in satisfaction of a condition to the obligations of the Placement
Agents thereunder, the Issuer and each subsidiary of the Company which may
hereafter execute a counterpart signature page hereto (collectively, the
"Guarantors"), agree with the Placement Agents, for the benefit of the holders
- -----------
(including the Placement Agents) of the Securities and of the Exchange
Securities (as defined herein) (collectively, the "Holders"), as follows:
-------
1. Registered Exchange Offer. Unless the Registered Exchange Offer
-------------------------
(as defined below) is not permitted by applicable law or Securities and Exchange
Commission ("Commission") policy, or each Holder of Transfer Restricted
Securities (as defined below) notifies the Issuer that it is a Restricted Holder
(as defined below), the Issuer shall (i) prepare and, not later than 90 days
following the date on which the Issuer is merged with and into the Company (the
"Closing Date"), file with the Commission a registration statement (the
------------
"Exchange Offer Registration Statement") on an appropriate form under the
- --------------------------------------
Securities Act of 1933, as amended (the "Securities Act"), with respect to a
--------------
proposed offer to the Holders (the "Registered Exchange Offer") to issue and
-------------------------
deliver to such Holders, in exchange for Securities, a like aggregate
liquidation preference of securities of the Issuer (the "Exchange Securities")
-------------------
and that are identical in all material respects to the Securities, except for
the transfer restrictions relating to the Securities and the absence of
registration rights, (ii) use its reasonable best efforts to cause the Exchange
Offer Registration Statement to become effective under the Securities Act on or
prior to 180 days after the Closing Date, and (iii) commence the Registered
Exchange Offer and use its reasonable best efforts to issue on or prior to 30
business days after the date on which the Exchange Offer Registration Statement
is declared effective by the Commission, Exchange Securities in exchange for all
Securities tendered prior thereto in the Registered Exchange Offer (such period
being called the "Exchange Offer Registration Period"). The Exchange Securities
----------------------------------
will be issued under the Certificate or a certificate of designation (the
"Exchange Securities Certificate") executed by the Issuer, such Exchange
- --------------------------------
Securities Certificate to be identical in all material respects to the
Certificate, except for the transfer restrictions relating to the Securities.
The transfer agent for the Exchange Securities, which shall be reasonably
satisfactory to the Placement Agents, is hereinafter referred to as the
"Exchange Securities Transfer Agent."
- -----------------------------------
Upon the effectiveness of the Exchange Offer Registration Statement,
the Issuer shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Securities for Exchange Securities (assuming that such Holder (a) is
not an affiliate of the Issuer or an Exchanging Dealer (as defined
2
herein) not complying with the requirements of the next sentence, (b) is not a
Placement Agent holding Securities that have, or that are reasonably likely to
have, the status of an unsold allotment in an initial distribution, (c) acquires
the Exchange Securities in the ordinary course of such Holder's business and (d)
has no arrangements or understandings with any person to participate in the
distribution of the Securities or the Exchange Securities) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions under
the securities laws of the several states of the United States. The Issuer, the
Guarantors and the Placement Agents and each Exchanging Dealer acknowledge that,
pursuant to current interpretations by the Commission's staff of Section 5 of
the Securities Act, (i) each Holder that is a broker-dealer electing to exchange
Securities, acquired for its own account as a result of market making activities
or other trading activities, for Exchange Securities (an "Exchanging Dealer"),
-----------------
is required to deliver a prospectus containing substantially the information set
forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and in Annex
C hereto in the "Plan of Distribution" section of such prospectus in connection
with a sale of any such Exchange Securities received by such Exchanging Dealer
pursuant to the Registered Exchange Offer and (ii) if any Placement Agent elects
to sell Exchange Securities acquired in exchange for Securities constituting any
portion of an unsold allotment, it is required to deliver a prospectus,
containing the information required by Items 507 and/or 508 or Regulation S-K
under the Securities Act, as applicable, in connection with such a sale.
In connection with the Registered Exchange Offer, the Issuer and the
Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depository for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York City time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable
to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer, the Issuer and the Guarantors shall:
3
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(b) deliver, or cause to be delivered, to the Transfer Agent for
cancellation all Securities so accepted for exchange; and
(c) issue, and cause the Transfer Agent or the Exchange Securities
Transfer Agent, as the case may be, promptly to issue, countersign and
deliver to each Holder, Exchange Securities in denominations equal to those
of the Securities of such Holder so accepted for exchange.
Subject to the provisions of Section 4(b) hereof, the Issuer and the
Guarantors shall use their reasonable best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the prospectus
contained therein in order to permit such prospectus to be used by all persons
subject to the prospectus delivery requirements of the Securities Act for such
period of time as such persons must comply with such requirements in order to
resell the Exchange Securities; provided that (i) in the case where such
--------
prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 90 days and the date on
which all Exchanging Dealers have sold all Exchange Securities held by them and
(ii) the Issuer and the Guarantors shall make such prospectus and any amendment
or supplement thereto available to any broker-dealer for use in connection with
any resale of any Exchange Securities for a period not to exceed 90 days after
the consummation of the Registered Exchange Offer.
The Certificate or the Exchange Securities Certificate, as the case
may be, shall provide that the Securities and the Exchange Securities shall vote
and consent together on all matters as one class and that none of the Securities
or the Exchange Securities will have the right to vote or consent as a separate
class on any matter.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuer that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understandings with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act and (iii) such Holder is not an "affiliate," as defined in
Rule 405 under the Securities Act, of the Issuer or, if it is such an affiliate,
such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable.
Notwithstanding any other provisions hereof, the Issuer and each
Guarantor will ensure that, except with respect to the Holders' Information (as
defined in Section 2(c)), (i) any Exchange Offer Registration Statement and any
amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a
4
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and any supplement to
such prospectus, does not, as of the consummation of the Registered Exchange
Offer, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
2. Shelf Registration. If (i) the Issuer and the Guarantors are not
------------------
required to file the Exchange Offer Registration Statement or permitted to
consummate the Registered Exchange Offer, (ii) any Securities validly tendered
pursuant to the Registered Exchange Offer are not exchanged for Exchange
Securities within 30 days after the Effectiveness Target Date (as defined in
Section 3) of the Exchange Offer Registration Statement or (iii) any Holder (a
"Restricted Holder") of Transfer Restricted Securities notifies the Issuer prior
to the 20th day following consummation of the Registered Exchange Offer that (A)
it is prohibited by law or Commission policy from participating in the
Registered Exchange Offer, (B) it may not resell the Exchange Securities
acquired by it in the Registered Exchange Offer to the public without delivering
a prospectus and the prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales, (C) it is a
Placement Agent and that such Securities are not eligible to be exchanged for
Exchange Securities or (D) it is a broker-dealer and owns Securities acquired
directly from the Issuer or an affiliate of the Issuer, the Issuer will file
with the Commission a shelf registration statement on an appropriate form under
the Securities Act relating to the offer and sale of the Transfer Restricted
Securities by the Holders thereof from time to time in accordance with the
methods of distribution set forth in such registration statement (hereafter, a
"Shelf Registration Statement" and together with any Exchange Offer Registration
- -----------------------------
Statement, a "Registration Statement"). If the Issuer is required to file a
----------------------
Shelf Registration Statement the following provisions shall apply:
(a) The Issuer and the Guarantors will use their reasonable best
efforts to file the Shelf Registration Statement with the Commission on or
prior to the date that is 90 days after such filing obligation arises and
to cause the Shelf Registration Statement to be declared effective by the
Commission on or prior to the date that is 135 days after such obligation
arises.
(b) Subject to the provisions of Section 4(b) hereof, the Issuer and
the Guarantors shall use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be used by Holders of Transfer
Restricted Securities for a period of two years after its effective date or
such shorter period that will terminate when all the Transfer Restricted
Securities covered thereby (i) have been sold pursuant thereto or (ii) are
distributed to the public pursuant to Rule 144 under the Securities Act or
are saleable pursuant to Rule 144(k) under the Securities Act (in any such
case, such period being called the "Shelf Registration Period"). Subject to
-------------------------
the provisions of Section 4(b) hereof, the Issuer and the Guarantors shall
be deemed not to have used their reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite
5
period if any of them voluntarily takes any action that would result in
Holders of Transferred Restricted Securities covered thereby not being able
to offer and sell such Transfer Restricted Securities during that period,
unless (i) such action is required by applicable law, or (ii) such action
is taken by the Issuer in good faith and for valid business reasons (not
including avoidance of the Issuer's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Issuer promptly
thereafter complies with the requirements of Section 4(j) hereof, if
applicable.
(c) Notwithstanding any other provisions hereof, the Issuer and the
Guarantors will ensure that (i) any Shelf Registration Statement and any
amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities
Act and the rules and regulations of the Commission thereunder, (ii) any
Shelf Registration Statement and any amendment thereto (in either case,
other than with respect to information included therein in reliance upon or
in conformity with written information furnished to the Issuer by or on
behalf of any Holder specifically for use therein (the "Holders'
-------
Information")) does not contain an untrue statement of a material fact or
-----------
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming
part of any Shelf Registration Statement, and any supplement to such
prospectus (in either case, other than with respect to Holders'
Information), does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
3. Liquidated Damages.
------------------
(a) The parties hereto agree that the Holders of Transfer Restricted
Securities will suffer damages if the Issuer or any Guarantor fails to
fulfill its obligations under Section 1 or Section 2, as applicable, and
that it would not be feasible to ascertain the extent of such damages.
Accordingly, if (i) the Issuer fails to file any of the Registration
Statements required by this Registration Rights Agreement on or before the
date specified for such filing, (ii) any of such Registration Statements is
not declared effective by the Commission on or prior to the date specified
for such effectiveness in Section 1 or Section 2(a), as applicable (the
"Effectiveness Target Date"), (iii) unless the Registered Exchange Offer
-------------------------
would not be permitted by applicable law or Commission policy or the Issuer
is otherwise not required to do so, the Issuer fails to consummate the
Registered Exchange Offer within 30 business days of the Effectiveness
Target Date with respect to the Exchange Offer Registration Statement, or
(iv) the Shelf Registration Statement or the Exchange Offer Registration
Statement is declared effective but thereafter ceases to be effective or
usable in connection with resales or exchanges of Transfer Restricted
Securities during the periods specified in Section 1 or Section 2, as
applicable, other than a Blackout Period (as defined herein) (each such
event referred to in clauses (i) through (iv) above, a "Registration
------------
Default"), then the Issuer and the Guarantors agree to pay liquidated
-------
damages (the "Liquidated Damages") to each Holder of Transfer Restricted
Securities, with respect to the first 90-day period immediately following
6
the occurrence of the first Registration Default in an amount equal to $.05
per week per $1,000 liquidation preference of Transfer Restricted
Securities held by such Holder. The amount of the Liquidated Damages will
increase by an additional $.05 per week per $1,000 liquidation preference
of Transfer Restricted Securities with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum
amount of Liquidated Damages of $.20 per week per $1,000 liquidation
preference of Transfer Restricted Securities. All accrued Liquidated
Damages will be paid by the Issuer and the Guarantors on each Dividend
Payment Date specified in the Certificate, in the same manner as dividend
payments on the Securities. Following the cure of all Registration
Defaults, the accrual of Liquidated Damages will cease. As used herein, the
term "Transfer Restricted Securities" means (i) each Security until the
------------------------------
date on which such Security has been exchanged for a freely transferable
Exchange Security in the Registered Exchange Offer, (ii) each Exchange
Security following the exchange by a broker-dealer in the Registered
Exchange Offer of a Security for an Exchange Security, until the date on
which such Exchange Security is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) each Security
until the date on which it has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iv) each Security until the date on which it has been
distributed to the public pursuant to Rule 144 under the Securities Act.
Notwithstanding anything to the contrary in this Section 3(a), the Issuer
and the Guarantors shall not be required to pay Liquidated Damages to a
Holder of Transfer Restricted Securities if such Holder failed to comply
with its obligations to make the representations set forth in the second to
last paragraph of Section 1 or failed to provide the information required
to be provided by it, if any, pursuant to Section 4(n).
(b) The Issuer shall notify the Transfer Agent and the paying agent
under the Certificate immediately upon the happening of each and every
Registration Default. The Issuer and the Guarantors shall pay the
Liquidated Damages due on the Transfer Restricted Securities by depositing
with the paying agent (which may not be the Issuer for these purposes), in
trust, for the benefit of the Holders thereof, prior to 10:00 a.m., New
York City time, on the next Dividend Payment Date specified by the
Certificate, sums sufficient to pay the Liquidated Damages then due, or by
making payment in such other manner as may be specified for the payment of
dividends in the Certificate or the Exchange Securities Certificate. The
Liquidated Damages due shall be payable on each Dividend Payment Date
specified by the Certificate to the record holder on such date. Each
obligation to pay Liquidated Damages shall be deemed to accrue from and
including the date of the applicable Registration Default.
(c) The parties hereto agree that the Liquidated Damages provided for
in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Securities by reason of the occurrence of any of the events
described in Section 3(a)(i) through 3(a)(iv) hereof.
7
4. Registration Procedures. In connection with any Registration
-----------------------
Statement, the following provisions shall apply:
(a) The Issuer shall (i) furnish to each Placement Agent, prior
to the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and shall use its reasonable best efforts to
reflect in each such document, when so filed with the Commission, such
comments as any Placement Agent may reasonably propose; (ii) include the
information set forth in Annex A hereto on the cover, in Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of the Exchange
Offer" section and in Annex C hereto in the "Plan of Distribution" section
of the prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in the
Letter of Transmittal delivered pursuant to the Registered Exchange Offer;
and (iii) if reasonably requested by any Placement Agent, include the
information required by Items 507 or 508 of Regulation S-K, as applicable,
in the prospectus forming a part of the Exchange Offer Registration
Statement.
(b) The Issuer shall advise each Placement Agent, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such
person, confirm such advice in writing (which advice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the use
of the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto
has been filed with the Commission and when such Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Issuer or any Guarantor of any
notification with respect to the suspension of the qualification of
the Securities or the Exchange Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
and
(v) of the happening of any event that requires the making
of any changes in any Registration Statement or the prospectus
included therein in order that the statements therein are not
misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
8
Upon complying with the procedures described above in this Section
4(b) following the occurrence of an event of the type described in clause
(v) of this Section 4(b), the Issuer may suspend the use of any prospectus
included in any Registration Statement for a period (the "Blackout Period")
---------------
not to exceed an aggregate of 60 days in any 12 month period if (i) the
Board of Directors of the Issuer determines that the disclosure of such
event at such time would have a material adverse effect on the business,
operations or prospects of the Issuer or (ii) the disclosure otherwise
relates to a material business transaction which has not yet been publicly
disclosed and the Board of Directors determines that any such disclosure
would jeopardize the success of such transaction; provided that, upon the
termination of such Blackout Period, the Issuer promptly shall advise the
Placement Agents, each Exchanging Dealer and the Holders (if applicable)
and, if requested by any such person, confirm such advice in writing that
such Blackout Period has been terminated.
(c) The Issuer and the Guarantors will make every reasonable effort
to obtain the withdrawal at the earliest possible time of any order
suspending the effectiveness of any Registration Statement.
(d) The Issuer will furnish to each Holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one conformed copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules and, if any such Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).
(e) The Issuer will, during the Shelf Registration Period, deliver to
each Holder of Transfer Restricted Securities included within the coverage
of any Shelf Registration Statement, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and the Issuer and the Guarantors consent to
the use (in accordance with applicable law) of such prospectus or any
amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Securities in connection with the offer and sale of the Transfer
Restricted Securities covered by such prospectus or any amendment or
supplement thereto.
(f) The Issuer will furnish to each Placement Agent and each
Exchanging Dealer, and to any other Holder who so requests, without charge,
at least one conformed copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial statements
and schedules and, if any Placement Agent or Exchanging Dealer or any such
Holder so requests in writing, all exhibits thereto (including those, if
any, incorporated by reference).
(g) The Issuer will, during the Exchange Offer Registration Period or
the Shelf Registration Period, as applicable, promptly deliver to each
Placement Agent, each Exchanging Dealer and such other persons that are
required to deliver a prospectus following
9
the Registered Exchange Offer, without charge, as many copies of the final
prospectus included in the Exchange Offer Registration Statement or the
Shelf Registration Statement and any amendment or supplement thereto as
such Placement Agent, Exchanging Dealer or other persons may reasonably
request; and the Issuer and the Guarantors consent to the use (in
accordance with applicable law) of such prospectus or any amendment or
supplement thereto by any such Placement Agent, Exchanging Dealer or other
persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Issuer and the Guarantors will use their reasonable best efforts to
register or qualify, or cooperate with the Holders of Securities or
Exchange Securities included therein and their respective counsel in
connection with the registration or qualification of, such Securities or
Exchange Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as any such Holder reasonably requests in
writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities or
Exchange Securities covered by such Registration Statement; provided that
--------
the Issuer and the Guarantors will not be required to qualify generally to
do business in any jurisdiction where it is not then so qualified or to
take any action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject.
(i) The Issuer and the Guarantors will cooperate with the Holders of
Securities or Exchange Securities to facilitate the timely preparation and
delivery of certificates representing Securities or Exchange Securities to
be sold pursuant to any Registration Statement free of any restrictive
legends and in such denominations and registered in such names as the
Holders thereof may request in writing at least three business days prior
to sales of Securities or Exchange Securities pursuant to such Registration
Statement.
(j) Subject to the provisions of the last paragraph of Section 4(b)
hereof, if any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Issuer is required to maintain an effective
Registration Statement, the Issuer will promptly prepare and file with the
Commission a post-effective amendment to the Registration Statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Securities or Exchange
Securities from a Holder or an Exchanging Dealer, the prospectus will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Issuer will provide a CUSIP number for the Securities and
Exchange Securities, as the case may be, and provide the applicable trustee
with printed certificates for the Securities or the Exchange Securities, as
the case may be, in a form eligible for deposit with The Depository Trust
Company.
10
(l) The Issuer and the Guarantors will comply with all applicable
rules and regulations of the Commission and the Issuer will make generally
available to its security holders as soon as practicable after the
effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act.
(m) INTENTIONALLY OMITTED.
(n) The Issuer may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Issuer such information (including supplements thereto)
concerning the Holder and the distribution of such Transfer Restricted
Securities as the Issuer may from time to time reasonably require for
inclusion in such Shelf Registration Statement, and the Issuer may exclude
from such registration the Transfer Restricted Securities of any Holder
that fails to furnish such information (including supplements thereto)
within 5 business days after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of
any notice from the Issuer pursuant to Section 4(b)(ii) through (v) hereof,
such Holder will discontinue disposition of such Transfer Restricted
Securities until such Holder's receipt of copies of the supplemental or
amended prospectus contemplated by Section 4(j) hereof or until advised in
writing (the "Advice") by the Issuer that the use of the applicable
------
prospectus may be resumed. If the Issuer shall give any notice under
Section 4(b)(ii) through (v) during the period that the Issuer is required
to maintain an effective Registration Statement (the "Effectiveness
-------------
Period"), such Effectiveness Period shall be extended by the number of days
------
during such period from and including the date of the giving of such notice
to and including the date when each seller of Transfer Restricted
Securities covered by such Registration Statement shall have received (x)
the copies of the supplemental or amended prospectus contemplated by
Section 4(j) (if an amended or supplemental prospectus is required) or (y)
the Advice (if no amended or supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Issuer shall
enter into such customary agreements (including, if requested, an
underwriting agreement to be negotiated between the parties in good faith)
and take all such other action, if any, as Holders of a majority of the
Securities and Exchange Securities being sold or the managing underwriters
(if any) shall reasonably request in order to facilitate any disposition of
Securities or Exchange Securities pursuant to such Shelf Registration
Statement.
(q) In the case of a Shelf Registration Statement, the Issuer and the
Guarantors shall (i) make reasonably available for inspection by a
representative of, and Special Counsel (as defined below) acting for,
Holders of a majority of the Securities and Exchange Securities being sold
and any underwriter participating in any disposition of Securities or
Exchange
11
Securities pursuant to such Shelf Registration Statement, and (ii) use
their reasonable best efforts to have their officers, directors, employees,
accountants and counsel supply, all relevant information reasonably
requested by such representative, Special Counsel or any such underwriter
(an "Inspector") in connection with such Shelf Registration Statement,
---------
subject to executing a confidentiality undertaking in customary form and
with respect to confidential and/or proprietary information of the Issuer
and the Guarantors.
(r) In the case of a Shelf Registration Statement, the Issuer shall,
if requested by Holders of a majority of the Securities and Exchange
Securities being sold, its Special Counsel or the managing underwriters (if
any) in connection with such Shelf Registration Statement, use its
reasonable best efforts to cause (i) its counsel to deliver an opinion
relating to the Shelf Registration Statement and the Securities or Exchange
Securities, as applicable, in customary form, (ii) its officers to execute
and deliver all customary documents and certificates reasonably requested
by Holders of a majority of the Securities and Exchange Securities being
sold, their Special Counsel or the managing underwriters (if any) and (iii)
its independent public accountants to provide a comfort letter or letters
in customary form, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No.
72.
5. Registration Expenses. The Issuer and the Guarantors will bear
---------------------
all expenses incurred in connection with the performance of their obligations
under Sections 1, 2, 3 and 4 and, in the case of a Shelf Registration Statement,
the Issuer and the Guarantors will reimburse the Placement Agents and the
Holders for the reasonable fees and disbursements of one firm of attorneys (in
addition to any local counsel) chosen by the Holders of a majority of the
Securities and the Exchange Securities to be sold pursuant to such Registration
Statement (the "Special Counsel") acting for the Placement Agents or Holders in
---------------
connection therewith.
6. Indemnification.
---------------
(a) The Issuer and the Guarantors, jointly and severally, agree to
indemnify and hold harmless each Placement Agent, each Holder (including,
without limitation, each Exchanging Dealer), their respective affiliates,
officers, directors, employees, representatives and agents, and each
person, if any, who controls any Placement Agent and any Holder within the
meaning of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (collectively referred to for purposes of this
------------
Section 6 and Section 7 as a "Holder") from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, without limitation, any loss, claim, damage, liability or
action relating to purchases and sales of Securities or Exchange
Securities), to which that Holder may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal
or state statutory law or regulation, at common law or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or in any amendment or
supplement thereto), including all documents
12
incorporated therein by reference, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
prospectus (as amended or supplemented), or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and shall reimburse each Holder
promptly upon demand for any legal or other expenses reasonably incurred by
that Holder in connection with investigating or defending or preparing to
defend against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Issuer and the Guarantors shall not
-------- -------
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, an untrue statement or
alleged untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with any Holders'
Information; and provided further that, with respect to any such untrue
-------- -------
statement in or omission from any related preliminary prospectus, the
indemnity contained in this Section 6(a) shall not inure to the benefit of
any Holder from whom the person asserting any such loss, claim, damage,
liability or action received Securities or Exchange Securities to the
extent that such loss, claim, damage, liability or action of or with
respect to such Holder results from the fact that both (A) a copy of the
final prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Securities or Exchange Securities
to such person and such delivery was required by the Securities Act and (B)
the untrue statement in or omission from the related preliminary prospectus
was corrected in the final prospectus unless, in either case, such failure
to deliver the final prospectus was a result of non-compliance by the
Issuer with Section 4(d), 4(e), 4(f) or 4(g).
(b) Each Holder agrees to indemnify and hold harmless the Issuer, the
Placement Agents and the other selling Holders, and each of their
respective affiliates, and their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the
Issuer or the Guarantors, any Placement Agent and any other selling Holder
within the meaning of the Securities Act or the Exchange Act, from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Issuer may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or in
any amendment or supplement thereto), including all documents incorporated
therein by reference, or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any prospectus (as
amended or supplemented), or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not
13
misleading, but in each case only to the extent that the untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with any Holders' Information furnished to
the Issuer by such Holder, and shall reimburse the Issuer and/or the
Guarantors for any legal or other expenses reasonably incurred by the
Issuer in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that no such Holder shall be liable for any indemnity
-------- -------
claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Securities or Exchange Securities pursuant to a
Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
-------- -------
party shall not relieve it from any liability which it may have under this
Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure;
and provided further that the failure to notify the indemnifying party
-------- -------
shall not relieve it from any liability which it may have to an indemnified
party otherwise than under this Section 6. If any such claim or action
shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than the reasonable costs of
investigation; provided, however, that an indemnified party shall have the
-------- -------
right to employ its own counsel in any such action, but the fees, expenses
and other charges of such counsel for the indemnified party will be at the
expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying
party, (2) the indemnified party has reasonably concluded (based upon
advice of counsel to the indemnified party) that there may be legal
defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a
conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party
that makes it impossible or inadvisable for counsel to the indemnifying
party to conduct the defense of both the indemnifying party and the
indemnified party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel
reasonably satisfactory to the indemnified party to assume the defense of
such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying
14
party or parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to
any local counsel) at any one time for all such indemnified party or
parties. In the event of any claim or action in which the Placement Agents
or persons who control the Placement Agents are indemnified parties, such
firm shall be designated in writing by Morgan Stanley & Co. Incorporated.
In the event of any claim or action in which the Holders or persons who
control the Holders are indemnified parties, and the Placement Agents are
not indemnified parties, such firm shall be designated in writing by the
Holders of a majority of the Securities to which such claim or action
relates (excluding for this purpose, affiliates of the Issuer and the
Guarantors). In all other cases, such firm shall be designated by the
Issuer. Each indemnified party, as a condition of the indemnity contained
in Sections 6(a) and 6(b), shall use all reasonable efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there
be a final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld),
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
7. Contribution. If the indemnification provided for in Section 6
------------
is unavailable or insufficient to hold harmless an indemnified party under
Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Issuer from the offering and sale
of the Securities, on the one hand, and a Holder with respect to the sale by
such Holder of Securities or Exchange Securities, on the other, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuer, on
the one hand, and such Holder, on the other, with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Issuer, on the one hand, and a Holder, on the
other, with respect to such offering and such sale shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Securities
(before deducting expenses) received by or on behalf of the Issuer, on the one
hand, bear to the total proceeds received by such Holder with respect to its
sale of Securities or Exchange Securities, on the other. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to the
15
Issuer or information supplied by the Issuer, on the one hand, or to any
Holders' Information supplied by such Holder, on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 7 were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 7 shall be deemed to include, for purposes of this Section
7, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 7, an
indemnifying party that is a Holder of Securities or Exchange Securities shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities or Exchange Securities sold by such
indemnifying party to any purchaser exceeds the amount of any damages which such
indemnifying party has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
8. Rules 144 and 144A. The Issuer shall use its reasonable best
------------------
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Issuer is not
required to file such reports, it will, upon the written request of any Holder
of Transfer Restricted Securities, make publicly available other information so
long as necessary to permit sales of such Holder's securities pursuant to Rules
144 and 144A. The Issuer and the Guarantors covenant that they will take such
further action as any Holder of Transfer Restricted Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Transfer Restricted Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rules 144 and 144A
(including, without limitation, the requirements of Rule 144A(d)(4)). Upon the
written request of any Holder of Transfer Restricted Securities, the Issuer
shall deliver to such Holder a written statement as to whether it has complied
with such requirements. Notwithstanding the foregoing, nothing in this Section
8 shall be deemed to require the Issuer to register any of its securities
pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer Restricted
--------------------------
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority of such Transfer Restricted Securities included in such offering,
subject to the consent of the Issuer (which shall not be unreasonably withheld
or delayed), and such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
16
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. Miscellaneous.
-------------
(a) Amendments and Waivers. The provisions of this Agreement may
----------------------
not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Issuer
has obtained the written consent of Holders of a majority of the Securities
and the Exchange Securities, taken as a single class. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Securities or Exchange Securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of
other Holders may be given by Holders of a majority of the Securities and
Exchange Securities being sold by such Holders pursuant to such
Registration Statement.
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Issuer in accordance with the provisions of this Section
10(b), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the
Certificate, with a copy in like manner to Morgan Stanley & Co.
Incorporated, Chase Securities Inc. and BT Alex. Brown Incorporated;
(2) if to the Placement Agents, initially at the address set
forth in the Placement Agreement; and
(3) if to the Issuer or the Guarantors, initially at the address
of the Issuer set forth in the Placement Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding upon the
----------------------
Issuer, the Guarantors and their respective successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
------------
counterparts (which may be delivered in original form or by telecopier) and
by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and
17
all of which taken together shall constitute one and the same agreement.
This Agreement shall become effective upon the execution of a counterpart
by each of the Issuer and the Placement Agents. Upon the execution after
the date hereof of a counterpart, by any Guarantor, such Guarantor shall,
without further action, become a party hereto and such Guarantor shall be
bound by the provisions hereof.
(e) Definition of Terms. For purposes of this Agreement, (a) the
-------------------
term "business day" means any day on which the New York Stock Exchange,
Inc. is open for trading and (b) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the
Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York.
(h) Remedies. In the event of a breach by the Issuer or the
--------
Guarantors or by any Holder of any of their obligations under this
Agreement, each Holder, the Issuer or the Guarantors, as the case may be,
in addition to being entitled to exercise all rights granted by law,
including recovery of damages (other than the recovery of damages for a
breach by the Issuer of its obligations under Section 1 or 2 hereof for
which Liquidated Damages have been paid pursuant to Section 3 hereof), will
be entitled to specific performance of its rights under this Agreement. The
Issuer, the Guarantors and each Holder agree that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by
them of any of the provisions of this Agreement and hereby further agree
that, in the event of any action for specific performance in respect of
such breach, they shall waive the defense that a remedy at law would be
adequate.
(i) No Inconsistent Agreements. The Issuer and the Guarantors
--------------------------
represent, warrant and agree that (i) they have not entered into and shall
not, on or after the date of this Agreement, enter into any agreement that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) they have not
previously entered into any agreement which remains in effect granting any
registration rights with respect to any of its equity securities to any
person and (iii) without limiting the generality of the foregoing, without
the written consent of the Holders of a majority of the then outstanding
Transfer Restricted Securities, they shall not grant to any person the
right to request the Issuer to register any debt securities of the Issuer
under the Securities Act unless the rights so granted are not in conflict
or inconsistent with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Issuer,
-----------------------------
the Guarantors nor any of their security holders (other than the Holders of
Transfer Restricted Securities in such
18
capacity) shall have the right to include any securities of the Issuer in
any Shelf Registration or Registered Exchange Offer other than Transfer
Restricted Securities.
(k) Severability. The remedies provided herein are cumulative and not
------------
exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable 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 that
may be hereafter declared invalid, illegal, void or unenforceable.
19
Please confirm that the foregoing correctly sets forth the agreement
among the Issuer, the Guarantors and the Placement Agents.
Very truly yours,
HH ACQUISITION CORP.
By: /s/ Christopher J. O'Brien
___________________________________
Name: Christopher J. O'Brien
Title: President
Accepted as of the date hereof:
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
BT ALEX. BROWN INCORPORATED
By: Morgan Stanley & Co. Incorporated
By: /s/ Stephanie Kaplan
____________________________
Name: Stephanie Kaplan
Title: Principal
HARBORSIDE HEALTHCARE LIMITED
PARTNERSHIP
By: KHI CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
___________________________________
Name: Stephen L. Guillard
Title: President and Chief
Executive Officer
BELMONT NURSING CENTER CORP.
By: /s/ Stephen L. Guillard
___________________________________
Name: Stephen L. Guillard
Title: President and Chief
Executive Officer
ORCHARD RIDGE NURSING CENTER CORP.
By: /s/ Stephen L. Guillard
___________________________________
Name: Stephen L. Guillard
Title: President and Chief
Executive Officer
OAKHURST MANOR NURSING CENTER
CORP.
By: /s/ Stephen L. Guillard
___________________________________
Name: Stephen L. Guillard
Title: President and Chief
Executive Officer
RIVERSIDE RETIREMENT LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
___________________________________
Name: Stephen L. Guillard
Title: President and Chief
Executive Officer
HARBORSIDE TOLEDO LIMITED
PARTNERSHIP
By: HARBORSIDE TOLEDO CORP.,
its general partner
By: /s/ Stephen L. Guillard
___________________________________
Name: Stephen L. Guillard
Title: President and Chief
Executive Officer
HARBORSIDE CONNECTICUT LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
___________________________________
Name: Stephen L. Guillard
Title: President and Chief
Executive Officer
HARBORSIDE OF FLORIDA LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
HARBORSIDE OF OHIO LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
HARBORSIDE HEALTHCARE BALTIMORE
LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
HARBORSIDE OF CLEVELAND LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE OF DAYTON LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE MASSACHUSETTS LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE RHODE ISLAND LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE NORTH TOLEDO LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE HEALTHCARE ADVISORS
LIMITED PARTNERSHIP
By: KHI CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE TOLEDO LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
KHI CORPORATION.
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE ACQUISITION LIMITED PARTNERSHIP IV
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE ACQUISITION LIMITED PARTNERSHIP V
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE ACQUISITION LIMITED PARTNERSHIP VI
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE ACQUISITION LIMITED
PARTNERSHIP VII
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE ACQUISITION LIMITED
PARTNERSHIP VIII
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE ACQUISITION LIMITED PARTNERSHIP IX
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
HARBORSIDE ACQUISITION LIMITED PARTNERSHIP X
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
SAILORS, INC.
By: /s/ Stephen L. Guillard
_____________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
NEW JERSEY HARBORSIDE CORP.
By: /s/ Stephen L. Guillard
_____________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
BRIDGEWATER ASSISTED LIVING LIMITED
PARTNERSHIP
By: NEW JERSEY HARBORSIDE
CORP., its general partner
By: /s/ Stephen L. Guillard
_____________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
MARYLAND HARBORSIDE CORP.
By: /s/ Stephen L. Guillard
_____________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
HARBORSIDE HOMECARE LIMITED PARTNERSHIP
By: KHI CORPORATION, its general partner
By: /s/ Stephen L. Guillard
_____________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
HARBORSIDE REHABILITATION LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
HARBORSIDE HEALTHCARE
NETWORK LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
HARBORSIDE HEALTH I CORPORATION
By: /s/ Stephen L. Guillard
_____________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive
Officer
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Issuer has agreed
that, for a period of 90 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. The Issuer has
agreed that, for a period of 90 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until _______________,
199_, all dealers effecting transactions in the Exchange Securities may be
required to deliver a prospectus./1/
Neither the Issuer nor any of the Guarantors will receive any proceeds
from any sale of Exchange Securities by broker-dealers. Exchange Securities
received by broker-dealers for their own account pursuant to the Registered
Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such broker-
dealer or the purchasers of any such Exchange Securities. Any broker-dealer
that resells Exchange Securities that were received by it for its own account
pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit on any
such resale of Exchange Securities and any commission or concessions received by
any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date, the Issuer will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Issuer and the Guarantors have agreed to pay
all expenses incident to the Registered Exchange Offer (including the expenses
of one counsel for the Holders of the Securities) other than commissions or
concessions of any broker-dealers and will indemnify the Holders of the
Securities (including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
_______________________
/1/ In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Registered Exchange Offer prospectus.
Consessions of any broker-dealers and will indemnify the Holders of the
Securities (including any broker-dealers) against certain liabilities under the
Securities Act.
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES
OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.