Exhibit 10.25
GENESIS HEALTH VENTURES, INC.
REGISTRATION RIGHTS AGREEMENT
Dated October 2, 2001
1. Introduction...................................................................................1
2. Registration under Securities Act, etc.........................................................1
2.1 Shelf Registration Statement..........................................................1
2.2 Registration Procedures...............................................................4
2.3 Preparation; Reasonable Investigation.................................................6
2.4 Indemnification.......................................................................6
3. Definitions...................................................................................10
4. Rules 144.....................................................................................12
5. Amendments and Waivers........................................................................12
6. Nominees for Beneficial Owners................................................................12
7. Notices.......................................................................................13
8. Assignment....................................................................................14
9. Descriptive Headings..........................................................................14
10. GOVERNING LAW.................................................................................14
11. Counterparts..................................................................................14
12. Entire Agreement..............................................................................14
13. SUBMISSION TO JURISDICTION....................................................................15
14. Severability..................................................................................15
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
October 2, 2001, between Genesis Health Ventures, Inc., a Pennsylvania
corporation (the "Company"), and Goldman Sachs & Co., a Delaware corporation,
and Highland Capital Management L.P. (each an "Investor" and together, the
"Investors").
1. Introduction. Pursuant to the Joint Plan of Reorganization
of Genesis Health Ventures, Inc. and its affiliated Debtors and Debtors in
Possession (the "Plan"), dated July 6, 2001, the Company has agreed, among other
things, to issue new senior notes in the aggregate principle amount of $
242,605,000 of the Company (the "New Senior Notes"). This Agreement shall become
effective upon the issuance of such securities pursuant to the Plan. Certain
capitalized terms used in this Agreement are defined in Section 3 hereof;
references to sections shall be to sections of this Agreement.
WHEREAS, the Company has agreed to grant to Investors the
registration rights set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
2. Registration under Securities Act, etc.
2.1 Shelf Registration Statement
(a) Request. An Investor holding New Senior Notes
of at least $24,260,500 in aggregate principle amount which constitute
Registrable Securities, or Investors holding New Senior Notes of at least
$48,521,000 in aggregate principle amount which constitute Registrable
Securities, may request, in writing, registration under the Securities Act, of
all or part of their Registrable Securities. Within 10 days after receipt of
such request, the Company will give notice of such request to the other
Investors. Any Investor that sells or disposes of securities covered by a
registration statement affected by the Company pursuant to this Agreement is
referred to herein as a "Participating Investor." The Company will include in
such registration, all Registrable Securities held by any Participating Investor
with respect to which the Company has received a written request for inclusion
therein within 15 days after the receipt of the Company's notice.
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(b) Filing. The Company agrees to prepare and, not
later than 90 days following the date in which it would receive a written
request pursuant to Section 2.1(a) hereof, to file with the Commission, one
registration statement for an offering to be made on a continuous basis pursuant
to Rule 415 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adapted by the Commission,
covering all of the Registrable Securities held by the Participating Investors
(the "Shelf Registration Statement"). The Shelf Registration Statement shall be
on Form S-3 under the Securities Act or another appropriate form selected by the
Company permitting registration of such Registrable Securities for resale by the
Participating Investors in the manner or manners reasonably designated by them
(not including underwritten offerings). The Company shall use all reasonable
efforts to cause the Shelf Registration Statement to be declared effective
pursuant to the Securities Act within 165 days after the date a request for
registration is made, and to keep the Shelf Registration Statement continuously
effective under the Securities Act until the earlier of (i) the date on which
all the New Senior Notes covered by such registration statement have been
disposed of or otherwise cease to be Registrable Securities and (ii) such date
on which such registration statement has been effective for a period of twenty
four (24) months, (the "Effectiveness Period").
(c) Limitation on Shelf Registration Statement. In
no event shall the Company be required to effect more than one registration
statement pursuant to this Agreement.
(d) Selling Securityholder Information. The
Company may require each Participating Investor to furnish to the Company such
information regarding the Participating Investor and the distribution of the
Registrable Securities as the Company may from time to time reasonably require
for inclusion in the Shelf Registration Statement, and the Company may exclude
from such registration the Registrable Securities of any Participating Investor
that fails to furnish such information within a reasonable time after receiving
such request. Each Investor agrees to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Investor not misleading.
(e) Expenses. The Company will pay all
Registration Expenses in connection with the Shelf Registration Statement.
(f) Exceptions to Registration. Notwithstanding
anything in this Agreement to the contrary, the Company shall not be obligated
to take any action to effect a registration statement pursuant to this
Agreement:
(i) During the period starting with the date
forty-five (45) days prior to the Company's estimated date of filing of, and
ending on the ninetieth (90th) day immediately following the effective date of,
any registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective;
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(ii) If the Company determines in good faith
that the registration and distribution of Registrable Securities (or the use of
the Shelf Registration Statement or related prospectus) would (i) materially and
adversely interfere with any previously announced business combination
transaction involving the Company or (ii) result in the premature disclosure of
any pending financing, acquisition, corporate reorganization or any other
corporate development involving the Company or any of its subsidiaries, and, in
either such event, the Company shall promptly give Participating Investors
written notice of such determination, then the Company shall be entitled to (x)
postpone the filing of the Shelf Registration Statement, or (y) postpone the
effectiveness of the Shelf Registration Statement, or (z) elect that the
effective Shelf Registration Statement not be used, in either case for a
reasonable period of time, but not to exceed ninety (90) days after the date of
such written notice (a "Blackout Period"); provided that the Company may not
exercise this deferral right more than once per twelve (12) month period. Any
such written notice shall contain a general statement of the reasons for such
postponement or restriction on use and an estimate of the anticipated delay. The
Company shall promptly notify each Participating Investor of the expiration or
earlier termination of such Blackout Period.
(g) Objection by Participating Investor. The
Company will not file any registration statement covering the Registrable
Securities or amendment thereto or any prospectus or any supplement thereto
(including such documents incorporated by reference and proposed to be filed
after the initial filing of the registration statement) to which Participating
Investor shall reasonably object, provided that the Company may file such
document in a form required by law or upon the advice of its counsel.
(h) Upon (A) the issuance by the Commission of a
stop order suspending the effectiveness of the Shelf Registration Statement or
the initiation of proceedings with respect to the Shelf Registration Statement
under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any
event or the existence of any fact (a "Material Event") as a result of which any
Shelf Registration Statement shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or any prospectus shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading
(including, in any such case, as a result of the non-availability of financial
statements), or (C) the occurrence or existence of any pending corporate
development that, in the judgment of the Company, makes it appropriate to
suspend the availability of the Shelf Registration Statement and the related
prospectus, (i) in the case of clause (B) above, subject to the next sentence,
as promptly as practicable prepare and file a post-effective amendment to such
Shelf Registration Statement or a supplement to the related prospectus or any
document incorporated therein by reference or file any other required document
that would be incorporated by reference into such Shelf Registration Statement
and prospectus so that such Shelf Registration Statement does not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and such prospectus does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, subject to the next
sentence, use all reasonable efforts to cause it to be declared effective as
promptly as is reasonably practicable, and (ii) give notice to the Participating
Investors that the availability of the Shelf Registration Statement is suspended
(a "Deferral Notice") and, upon receipt of any Deferral Notice, no Participating
Investor shall be permitted to sell any Registrable Securities pursuant to the
Shelf Registration Statement until such Participating Investor's receipt of
copies of the supplemented or amended prospectus provided for in clause (i)
above, or until such Participating Investor is advised in writing by the Company
that the prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such prospectus. The Company will use reasonable efforts to ensure that the
use of the prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the sole judgment of the Company, public disclosure of such Material Event would
not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as reasonably
practicable thereafter and (z) in the case of clause (C) above, as soon as, in
the discretion of the Company, such suspension is no longer appropriate.
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(i) Discontinued Use of Prospectus. The Investors
agree by acquisition of the Registrable Securities that, upon receipt of any
notice from the Company of the occurrence of any event of the kind described in
Section 2.1(h) hereof, the Participating Investors will forthwith discontinue
their respective dispositions of Registrable Securities pursuant to the Shelf
Registration Statement until each such Participating Investor's receipt of the
copies of the supplemented or amended prospectus contemplated by Section 2.1(h)
hereof and, if so directed by the Company, will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Investor's possession of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
(j) Information Regarding Participating Investors.
If the Shelf Registration Statement refers to any Participating Investor by name
or otherwise as the holder of any securities of the Company, then such Investor
shall have the right to require (i) the insertion therein of language, in form
and substance satisfactory to such Investor, to the effect that the holding by
such Investor of such securities is not to be construed as a recommendation by
such Investor of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Investor will assist in
meeting any future financial requirements of the Company, or (ii) in the event
that such reference to such Investor by name or otherwise is not required by the
Securities Act or any similar federal statute then in force, the deletion of the
reference to such Investor.
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2.2 Registration Procedures. If and whenever the Company is
required to effect a Shelf Registration Statement as provided in Sections 2.1,
the Company shall, as expeditiously as possible:
(i) furnish before filing such registration
statement or any amendments thereto, copies of all such documents proposed to be
filed to the counsel selected by the Participating Investors, which documents
will be subject to the review of such counsel;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act with
respect to the disposition of the securities covered by such registration
statement until the end of the Effectiveness Period.
(iii) furnish to each Participating Investor such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as such
Participating Investor, may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Securities;
(iv) use its best efforts to register or qualify
all Registrable Securities covered by such registration statement under such
other securities laws or blue sky laws of such jurisdictions as any seller
thereof shall reasonably request, to keep such registrations or qualifications
in effect for so long as such registration statement remains in effect, and take
any other action which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the securities
owned by such seller, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subdivision
(iv) be obligated to be so qualified or to consent to general service of process
in any such jurisdiction;
(v) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
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(vi) furnish to each Participating Investor a
signed counterpart, addressed to such Participating Investor, of (x) an opinion
of counsel for the Company, dated the effective date of such registration
statement, reasonably satisfactory in form and substance to such Participating
Investor, and (y) a "comfort" letter (or, in the case of any such Person which
does not satisfy the conditions for receipt of a "comfort" letter specified in
Statement on Auditing Standards No. 72, an "agreed upon procedures" letter),
dated the effective date of such registration statement, signed by the
independent public accountants who have certified the Company's financial
statements included in such registration statement, covering substantially the
same matters with respect to such registration statement (and the prospectus
included therein) and, in the case of the accountants' letter, with respect to
events subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten public offerings of securities (with, in the
case of an "agreed upon procedures" letter, such modifications or deletions as
may be required under Statement on Auditing Standards No. 35) and, in the case
of the accountants' letter, such other financial matters, and, in the case of
the legal opinion, such other legal matters, as the Participating Investors may
reasonably request;
(vii) notify each Participating Investor, promptly
and confirm such advice in writing promptly thereafter (v) when such
registration statement, the prospectus or any prospectus supplement related
thereto or post-effective amendment to such registration statement has been
filed, and, with respect to such registration statement or any post-effective
amendment thereto, when the same has become effective; (w) of any request by the
Commission for amendments or supplements to such registration statement or the
prospectus or for additional information; (x) of the issuance by the Commission
of any stop order suspending the effectiveness of such registration statement or
the initiation of any proceedings by any Person for that purpose; and (y) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the securities or
blue sky laws of any jurisdiction or the initiation or threat of any proceeding
for such purpose;
(viii) notify each Participating Investor, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon 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 any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made, and at the request of any Participating Investor promptly prepare and
furnish to such Participating Investor, a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include 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 the light of the circumstances under which they were made;
(ix) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of such registration
statement at the earliest possible moment;
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(x) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than eighteen
months, beginning with the first day of the Company's first full calendar
quarter after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder, and will furnish to each Participating Investor at
least five business days prior to the filing thereof a copy of any amendment or
supplement to such registration statement or prospectus related thereto and
shall not file any thereof to which such Participating Investor shall have
reasonably objected on the grounds that such amendment or supplement does not
comply in all material respects with the requirements of the Securities Act or
of the rules or regulations thereunder;
(xi) make available for inspection by a
representative or representatives of each Participating Investor and any
attorney or accountant retained by any Participating Investor (each, an
"Inspector"), all financial and other records, pertinent corporate documents and
properties of the Company (the "Records"), and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such Inspector in connection with such registration in order to permit a
reasonable investigation within the meaning of Section 11 of the Securities Act;
(xii) provide and cause to be maintained a
transfer agent and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the effective date
of such registration statement; and
(xiii) use its best efforts to provide a CUSIP
number for the Registrable Securities, not later than the effective date of such
registration statement.
2.3 Preparation; Reasonable Investigation. In connection with
the preparation and filing of the Shelf Registration Statement pursuant to this
Agreement, the Company will give any Participating Investor, their counsel and
accountants, the opportunity to participate in the preparation of such
registration statement, each related prospectus included therein or filed with
the Commission, and each amendment thereof or supplement thereto, and will give
each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such Investors' respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
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2.4 Indemnification.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless a Participating Investor, its directors and
officers, and each other Person, if any, who controls such Participating
Investor within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which such Participating Investor
or any such director or officer or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Shelf Registration
Statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or 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, and the Company will
reimburse each such Participating Investor and each such director, officer, and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding, provided that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by a Participating Investor specifically stating that
it is for use in the preparation thereof. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of a
Participating Investor or any such director, officer, or controlling person and
shall survive the transfer of such securities by any Participating Investor.
(b) Indemnification by Investor. The Company may require,
as a condition to including any Registrable Securities in the Shelf Registration
Statement, that the Company shall have received an undertaking satisfactory to
it from each Participating Investor, severally and not jointly, will indemnify
and hold harmless the Company (in the same manner and to the same extent as set
forth in subdivision (a) of this Section 2.4) each director of the Company, each
officer of the Company and each other person, if any, who controls the Company
within the meaning of the Securities Act, with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company through an
instrument duly executed by such Participating Investor specifically stating
that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; and, subject to the limitation set forth immediately preceding this
clause, shall reimburse the Company for any legal or other expenses reasonably
incurred by the Company or any such controlling person in connection with
investigating or defending any loss, claim, damage, liability or action in
respect thereof. Any such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling person and shall survive the transfer of such
securities by Investor.
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(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 2.4,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 2.4, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to the
extent that the indemnifying party may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability, or a covenant not to sue, in respect to such claim or litigation.
No indemnified party shall consent to entry of any judgment or enter into any
settlement of any such action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 2.4 (with appropriate
modifications) shall be given by the Company and any Participating Investor with
respect to any required registration or other qualification of securities under
any Federal or state law or regulation of any governmental authority, other than
the Securities Act.
(e) Indemnification Payments. The indemnification required
by this Section 2.4 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
(f) Contribution. If the indemnification provided for in
the preceding subdivisions of this Section 2.4 is unavailable to an indemnified
party in respect of any expense, loss, claim, damage or liability referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such expense, loss, claim, damage or liability. In determining
the amount of contribution to which the indemnified party is entitled, there
shall be considered with respect to any Persons involved the relative knowledge
and access to information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any statement or omission,
and other equitable considerations appropriate under the circumstances. It is
hereby agreed that it would not necessarily be equitable if the amount of such
contribution were determined by pro rata or per capita allocation, provided that
the foregoing contribution agreement shall not inure to the benefit of any
indemnified party if indemnification would be unavailable to such indemnified
party by reason of the provisions contained in the first sentence of subdivision
(a) of this Section 2.4, and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (f) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a) or
(b) of this Section 2.4 had been available under the circumstances.
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The Company and the Investors agree that it would not be just
and equitable if contribution pursuant to this subdivision (f) were determined
by pro rata allocation (even if a Participating Investor were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth in
the preceding sentence and subdivision (c) of this Section 2.4, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (f), no
Participating Investor shall be required to contribute any amount in excess of
the amount by which in the case of a Participating Investor, the net proceeds
received from the sale of Registrable Securities has otherwise been required to
pay by reason of such untrue or alleged untrue statement or 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.
3. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
Agreement. As defined in the introductory paragraph
of this Agreement.
Blackout Period. As defined in Section 2.1(f).
Commission: The Securities and Exchange Commission
or any other Federal agency at the time administering the
Securities Act.
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Company: As defined in the introductory paragraph of
this Agreement.
Deferral Notice: As defined in Section 2.1(h).
Effectiveness Period: As defined in Section 2.1(b).
Exchange Act: The Securities Exchange Act of 1934, or
any similar Federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect
at the time. Reference to a particular section of the
Securities Exchange Act of 1934 shall include a reference to
the comparable section, if any, of any such similar Federal
statute.
Inspector. As defined in Section 2.2.
Investor: As defined in the introductory paragraph of
this Agreement.
Material Event: As defined in Section 2.1(h).
New Senior Notes: As defined in Section 1.
Participating Investor: As defined in Section
2.1(a).
Person: A corporation, an association, a partnership,
an organization, business, an individual, a governmental or
political subdivision thereof or a governmental agency.
Plan: As defined in Section 1.
Records. As defined in Section 2.2.
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Registrable Securities: Any New Senior Notes issued
to any Investor pursuant to the Plan. As to any particular
Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (a) a registration
statement with respect to the sale of such securities shall
have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such
registration statement, (b) they shall have been distributed
to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (c) they shall have been
otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered
by the Company and subsequent disposition of them shall not
require registration or qualification of them under the
Securities Act or any similar state law then in force, (d)
they shall be sold by the applicable Investor to the public
pursuant to Section 1145 of title 11 of the United States
Code, as amended, or (e) they shall have ceased to be
outstanding. Notwithstanding anything herein to the contrary,
the registration rights granted hereunder shall terminate as
to each Investor and with respect to such New Senior Notes
upon the date that such notes are no longer Registrable
Securities.
Registration Expenses: All expenses incident to the
Company's performance of or compliance with Section 2,
including, without limitation, all registration, filing and
NASD fees, all stock exchange listing fees, all fees and
expenses of complying with securities or blue sky laws, all
word processing, duplicating and printing expenses, messenger
and delivery expenses, the fees and disbursements of counsel
for the Company and of its independent public accountants,
including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and
compliance, the reasonable fees and disbursements of one (1)
counsel representing all Investors and accountants retained by
Investors, premiums and other costs of policies of insurance
against liabilities arising out of the public offering of the
Registrable Securities being registered provided that, in any
case where Registration Expenses are not to be borne by the
Company, such expenses shall not include salaries of Company
personnel or general overhead expenses of the Company,
auditing fees, premiums or other expenses relating to
liability insurance required by the Company or other expenses
for the preparation of financial statements or other data
normally prepared by the Company in the ordinary course of its
business or which the Company would have incurred in any
event.
Securities Act: The Securities Act of 1933, or any
similar Federal statute, and the rules and regulations of the
Commission thereunder, all as of the same shall be in effect
at the time. References to a particular section of the
Securities Act of 1933 shall include a reference to the
comparable section, if any, of any such similar Federal
statute.
Shelf Registration Statement: As defined in Section
2.1(b).
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4. Rules 144. The Company shall use its best efforts to file
in a timely manner the reports required to be filed by it under the Securities
Act and the Exchange Act (including but not limited to the reports under
sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c) of
Rule 144 adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, will, upon the request of any Investor, make
publicly available other information) and will take such further action as such
Investor may reasonably request, all to the extent required from time to time to
enable such Investor to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the Commission. Upon the
request of any Investor, the Company will deliver to such Investor a written
statement as to whether it has complied with the requirements of this Section 4.
5. Amendments and Waivers. This Agreement may be amended and
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of each
Investor. Investors shall be bound by any consent authorized by this Section 5,
whether or not such Registrable Securities shall have been marked to indicate
such consent.
6. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the holder of
such Registrable Securities for purposes of any request or other action by any
holder or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
7. Notices. Except as otherwise provided in this Agreement,
all notices, requests and other communications to any Person provided for
hereunder shall be in writing and shall be given to such Person (a) in the case
of the Company, addressed in the manner set forth below, or (b) in the case of
any other Person, at the address that such Person shall have furnished to the
Company in writing.
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If to the Company:
Genesis Health Ventures, Inc.
101 East State Street
Kennett Square
Pennsylvania
Facsimile:
Attn: James J. Wankmiller, Esq.
If to the Investors:
At the address provided to the Company:
[Address]
Facsimile:
Attn:
Each such notice, request or other communication shall be effective (i) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (ii) if given by any other
means (including, without limitation, by air courier), when delivered at the
address specified above, provided that any such notice, request or communication
to Investor shall not be effective until receipt is acknowledged in a writing
reasonably satisfactory to both parties.
8. Assignment. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. This Agreement shall not be assigned by any Investor,
provided that an Investor shall have the right, upon prior written notice to the
Company, to assign its rights and obligations under the Agreement to a purchaser
of Registrable Securities from such Investor that purchases either (1) the
entire amount of such Investor's initial issuance of New Senior Notes under the
Plan or (2) New Senior Notes of aggregate principle amount equal to at least
three and a half percent (3.5%) of the aggregate principle amount of the then
outstanding New Senior Notes.
9. Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE PRINCIPLES OF
CONFLICTS OF LAWS. THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY TRIAL WITH
RESPECT TO DISPUTES HEREUNDER.
11. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
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12. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the Company and Investor relating to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
13. SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. THE
COMPANY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF TO THE COMPANY BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN
RECEIPT REQUESTED, TO THE COMPANY AT ITS ADDRESS SPECIFIED IN SECTION 7. THE
COMPANY HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
14. Severability. If any provision of this Agreement, or the
application of such provisions to any Person or circumstance, shall be held
invalid, illegal or unenforceable the remainder of this Agreement, or the
application of such provision to Persons or circumstances other than those to
which it is held invalid, illegal or unenforceable, shall not be affected
thereby.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
GENESIS HEALTH VENTURES, INC.
By /s/ James V. McKeon
------------------------------------------
Name: James V. McKeon
Title: Senior Vice President and Corporate
Controller
GOLDMAN SACHS & CO..
By /s/ John Urban
------------------------------------------
Name: John Urban
Title: Managing Director
HIGHLAND CAPITAL MANAGEMENT L.P.
By /s/ Mark K. Okade
------------------------------------------
Name: Mark K. Okade CFA
Title: Executive Vice President
Highland Capital Management L.P.
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