EXHIBIT 10.5
EXECUTION COPY
$200,000,000
Chemed Corporation
1.875% Convertible Senior Notes due May 15, 2014
REGISTRATION RIGHTS AGREEMENT
May 14, 2007
J.P. Morgan Securities Inc.
277 Park Avenue
9th Floor
New York, New York 10172
Citigroup Global Markets Inc.
390 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
This Registration Rights Agreement (the "AGREEMENT") is made and
entered into as of May 14, 2007, by and among Chemed Corporation, a Delaware
corporation (the "COMPANY"), the Guarantors (as defined below) and J.P. Morgan
Securities Inc. and Citigroup Global Markets Inc. (the "REPRESENTATIVES"), as
the Representatives of the initial purchasers (the "INITIAL PURCHASERS") listed
on Schedule 1 to the purchase agreement dated as of May 8, 2007 among the
Company, the Guarantors and the Initial Purchasers (the "PURCHASE AGREEMENT").
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Company agrees with the Initial Purchasers, for the
benefit of the holders (including the Initial Purchasers) of the Notes and the
Shares (as defined below) (collectively, the "HOLDERS"), as follows:
1. CERTAIN DEFINITIONS.
For purposes of this Registration Rights Agreement, the following terms
shall have the following meanings:
(a) "Additional Interest" has the meaning assigned thereto in Section 2(d).
(b) "Additional Interest Payment Date" has the meaning assigned thereto in
Section 2(d).
(c) "Agreement" means this Registration Rights Agreement, as the same may
be amended from time to time pursuant to the terms hereof.
(d) "Closing Date" means the date on which any Notes are initially issued.
(e) "Commission" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
(f) "Company" has the meaning specified in the first paragraph of this
Agreement.
(g) "Deferral Notice" has the meaning assigned thereto in Section 3(b).
(h) "Deferral Period" has the meaning assigned thereto in Section 3(b).
(i) "Effective Period" has the meaning assigned thereto in Section 2(a).
(j) "Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
(k) "Guarantors" means all of the domestic subsidiaries of the Company that
are signatories hereto and all of the direct and indirect future domestic
subsidiaries of the Company who execute a supplemental indenture in order to
become Guarantors in accordance with the terms of the Indenture.
(l) "Guarantees" means the full and unconditional unsecured unsubordinated
guarantees by the Guarantors of the Notes in accordance with the terms of the
Indenture.
(m) "Holder" means each holder, from time to time, of Registrable
Securities (including the Initial Purchasers).
(n) "Indenture" means the Indenture dated as of May 14, 2007 among the
Company, the Guarantors and LaSalle Bank National Association, as Trustee,
pursuant to which the Notes are being issued.
(o) "Initial Purchasers" has the meaning specified in the first paragraph
of this Agreement.
(p) "Material Event" has the meaning assigned thereto in Section 3(a)(iv).
(q) "Majority Holders" shall mean, on any date, holders of the majority of
the Shares constituting Registrable Securities; for the purposes of this
definition, Holders of Notes constituting Registrable Securities shall be deemed
to be the Holders of the number of Shares into which such Notes are or would be
convertible as of such date.
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(r) "NASD" shall mean the National Association of Securities Dealers, Inc.
(s) "NASD Rules" shall mean the Conduct Rules and the By-Laws of the NASD.
(t) "Notes" mean the 1.875% Convertible Senior Notes due May 15, 2014, to
be issued under the Indenture and sold by the Company to the Initial Purchasers.
(u) "Notice and Questionnaire" means a written notice delivered to the
Company containing substantially the information called for by the Form of
Selling Securityholder Notice and Questionnaire attached as Annex A to the
Offering Memorandum.
(v) "Notice Holder" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
(w) "Offering Memorandum" means the Offering Memorandum dated May 8, 2007
relating to the offer and sale of the Securities.
(x) "Person" means a corporation, association, partnership, organization,
business, individual, government or political subdivision thereof or
governmental agency.
(y) "Prospectus" means the prospectus included in any Shelf Registration
Statement, as amended or supplemented by any amendment or prospectus supplement,
including post-effective amendments, and all materials incorporated by reference
or explicitly deemed to be incorporated by reference in such Prospectus.
(z) "Purchase Agreement" has the meaning specified in the first paragraph
of this Agreement.
(aa) "Registrable Securities" means
(a) the Notes, including the Guarantees, until the earliest of
(i) their effective registration under the Securities Act
and the resale of all such Notes in accordance with the
Shelf Registration Statement, (ii) the expiration of the
holding period applicable to Notes held by persons who are
not affiliates of the Company under Rule 144(k) or any
successor provision or similar provisions then in effect,
(iii) the date on which all such Notes are freely
transferable by persons who are not affiliates of the
Company without registration under the Securities Act or
(iv) the date on which all such Notes have been converted or
otherwise cease to be outstanding;
(b) the Shares, if any, issuable upon conversion of the Notes,
until the earliest of (i) their effective registration under
the Securities Act and the resale of all such Shares in
accordance with the Shelf Registration Statement, (ii) the
expiration of the holding period applicable to Shares held
by persons who are not affiliates of the Company under Rule
144(k), (iii) the date on which all such Shares are freely
transferable by persons who are not affiliates of the
Company without registration under the Securities Act or
(iv) the date on which all such Shares cease to be
outstanding.
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(bb) "Registration Default" has the meaning assigned thereto in Section
2(d).
(cc) "Registration Expenses" has the meaning assigned thereto in Section 5.
(dd) "Rule 144," "Rule 405" and "Rule 415" mean, in each case, such rule as
promulgated under the Securities Act.
(ee) "Securities" means, collectively, the Notes, the Guarantees and the
Shares.
(ff) "Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
(gg) "Shares" means the shares of capital stock of the Company, par value
$1.00 per share, into which the Notes are convertible or that have
been issued upon any conversion from Notes into capital stock of the
Company.
(hh) "Shelf Registration Statement" means the shelf registration statement
referred to in Section 2(a), as amended or supplemented by any
amendment or supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be
incorporated by reference in such Shelf Registration Statement.
(ii) "Special Counsel" shall have the meaning assigned thereto in
Section 5.
(jj) "Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, or any successor thereto, and the rules, regulations and
forms promulgated thereunder, all as the same shall be amended
from time to time.
(kk) "Trustee" shall have the meaning assigned such term in the
Indenture.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) The Company and the Guarantors agree to file under the
Securities Act, or otherwise designate an existing registration
statement previously filed with the Commission, within 120 days after
the Closing Date a shelf registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the
Holders of, all of the Registrable Securities, and, if necessary by
the Company of all of the Shares, pursuant to Rule 415 or any similar
rule that may be adopted by the Commission. The Company and the
Guarantors agree to use their commercially reasonable efforts to cause
the Shelf Registration Statement to become or be declared effective
within 180 days after the Closing Date (unless such Shelf Registration
Statement is a previously filed registration statement that is
effective at the time it is so designated) and to keep such Shelf
Registration Statement continuously effective until each of the
Registrable Securities covered by the Shelf Registration Statement
ceases to be a Registrable Security (the "Effective Period"). None of
the Company's or any Guarantor's securityholders (other than Holders
of Registrable Securities) shall have the right to include any of the
Company's securities in the Shelf Registration Statement.
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(b) The Company and each Guarantor further agrees that they shall
cause the Shelf Registration Statement and the related Prospectus and
any amendment or supplement thereto, as of the effective date of the
Shelf Registration Statement or such amendment or supplement, (i) to
comply in all material respects with the applicable requirements of
the Securities Act; and (ii) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein (in the
case of the Prospectus, in the light of the circumstances under which
they were made) not misleading, and the Company agrees to furnish to
the Holders of the Registrable Securities copies of any supplement or
amendment prior to its being used or promptly following its filing
with the Commission; PROVIDED, HOWEVER, that the Company shall have no
obligation to deliver to Holders of Registrable Securities copies of
any amendment consisting exclusively of an Exchange Act report or
other Exchange Act filing otherwise publicly available on the
Company's website. If the Shelf Registration Statement, as amended or
supplemented from time to time, ceases to be effective for any reason
at any time during the Effective Period (other than because all
Registrable Securities registered thereunder shall have been sold
pursuant thereto or shall have otherwise ceased to be Registrable
Securities), the Company and each Guarantor shall use their
commercially reasonable efforts to obtain the prompt withdrawal of any
order suspending the effectiveness (or designation) thereof.
(c) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to the Shelf
Registration Statement and related Prospectus, it will do so only in
accordance with this Section 2(c) and Section 3(b). From and after the
date the Shelf Registration Statement is declared effective (or
designated if such Shelf Registration Statement is effective at the
time it is so designated), the Company and each Guarantor shall, as
promptly as is practicable after the date a Notice and Questionnaire
is delivered, and in any event within five (5) Business Days after
such date,
(i) if required by applicable law, file with the Commission
a post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to
the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other
required document so that the Holder delivering such Notice and
Questionnaire is named as a selling security holder in the Shelf
Registration Statement and the related Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to
purchasers of the Registrable Securities in accordance with
applicable law and, if the Company and each Guarantor shall file
a post-effective amendment to the Shelf Registration Statement,
use their commercially reasonable efforts to cause such
post-effective amendment to be declared effective under the
Securities Act as promptly as is practicable;
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(ii) provide such Holder copies of any documents filed
pursuant to Section 2(c)(i); and
(iii) notify such Holder as promptly as practicable after
the effectiveness (or designation) under the Securities Act of
any post-effective amendment filed pursuant to Section 2(c)(i);
PROVIDED, that if such Notice and Questionnaire is delivered during a
Deferral Period, the Company shall so inform the Holder delivering such
Notice and Questionnaire and shall take the actions set forth in
clauses (i), (ii) and (iii) above within 5 days after expiration of the
Deferral Period in accordance with Section 3(b). Notwithstanding the
foregoing, the Company will not be required to file more than one
post-effective amendment or supplement to the related prospectus during
any 30-day period. Notwithstanding anything contained herein to the
contrary, the Company shall be under no obligation to name any Holder
that is not a Notice Holder as a selling securityholder in any Shelf
Registration Statement or related Prospectus; PROVIDED, HOWEVER, that
any Holder that becomes a Notice Holder pursuant to the provisions of
this Section 2(c) (whether or not such Holder was a Notice Holder at
the time the Shelf Registration Statement was declared effective) shall
be named as a selling securityholder in the Shelf Registration
Statement or related Prospectus in accordance with the requirements of
this Section 2(c).
(d) If any of the following events (any such event a
"Registration Default") shall occur, then additional interest (the
"Additional Interest") shall become payable by the Company and each
Guarantor to Holders in respect of the Notes as follows:
(i) if the Shelf Registration Statement is not filed with
the Commission or an existing Shelf Registration Statement is not
designated within 120 days following the Closing Date, then
commencing on the 121st day after the Closing Date, Additional
Interest shall accrue on the principal amount of the outstanding
Notes that are Registrable Securities at a rate of 0.25% per
annum for the first 90 days following such 121st day and at a
rate of 0.5% per annum thereafter; or
(ii) if the Shelf Registration Statement is not declared
effective by the Commission or an existing effective Shelf
Registration Statement is not designated within 180 days
following the Closing Date, then commencing on the 181st day
after the Closing Date, Additional Interest shall accrue on the
principal amount of the outstanding Notes that are Registrable
Securities at a rate of 0.25% per annum for the first 90 days
following such 181st day and at a rate of 0.5% per annum
thereafter; or
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(iii) if the Shelf Registration Statement has been declared
effective but such Shelf Registration Statement ceases to be
effective at any time during the Effective Period (other than
pursuant to Section 3(b) hereof), then commencing on the day such
Shelf Registration Statement ceases to be effective, Additional
Interest shall accrue on the principal amount of the outstanding
Notes that are Registrable Securities at a rate of 0.25% per
annum for the first 90 days following such date on which the
Shelf Registration Statement ceases to be effective and at a rate
of 0.5% per annum thereafter; or
(iv) if the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted in respect of such
period pursuant to Section 3(b) hereof, then commencing on the
day the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period
(and again on the first day of any subsequent Deferral Period
during such period), Additional Interest shall accrue on the
principal amount of the outstanding Notes that are Registrable
Securities at a rate of 0.25% per annum for the first 90 days and
at a rate of 0.5% per annum thereafter;
PROVIDED, HOWEVER, that the Additional Interest rate on the Notes shall not
exceed in the aggregate 0.5% per annum and shall not be payable under more than
one clause above for any given period of time, except that if Additional
Interest would be payable under more than one clause above, but at a rate of
0.25% per annum under one clause and at a rate of 0.5% per annum under the
other, then the Additional Interest rate shall be the higher rate of 0.5% per
annum; PROVIDED FURTHER, however, that (1) upon the filing or designation of the
Shelf Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness (or designation) of the Shelf Registration Statement (in the case
of clause (ii) above), (3) upon the effectiveness (or designation) of the Shelf
Registration Statement which had ceased to remain effective (in the case of
clause (iii) above), (4) upon the termination of the Deferral Period that caused
the limit on the aggregate duration of Deferral Periods in a period set forth in
Section 3(b) to be exceeded (in the case of clause (iv) above), (5) upon the
termination of certain transfer restrictions on the Notes as a result of the
application of Rule 144(k) or any successor provision, (6) for any period after
the second anniversary from the Closing Date, or (7) at the time the Notes cease
to be Registrable Securities, Additional Interest on the Notes as a result of
such clause, as the case may be, shall cease to accrue.
Notwithstanding the foregoing, no Additional Interest or other amounts will
be payable in respect of Shares in the event of a Registration Default, even if
such Shares are Registrable Securities.
Additional Interest on the Notes, if any, will be payable in cash on May 15
and November 15 of each year (the "Additional Interest Payment Date") to holders
of record of outstanding Notes that are Registrable Securities at the close of
business on May 1 or November 1, as the case may be, immediately preceding the
relevant interest payment date, PROVIDED that any Additional Interest accrued
with respect to any Notes or portion thereof called for redemption on a
redemption date or converted into Shares on a conversion date prior to an
Additional Interest Payment Date shall, in any such event, be paid instead to
the Holder who submitted such Notes or portion thereof for redemption or
conversion on the applicable redemption date or conversion date, as the case may
be, on such date (or promptly following the conversion date, in the case of
conversion). Following the cure of all Registration Defaults requiring the
payment of Additional Interest to the Holders of Notes that are Registrable
Securities pursuant to this Section, the accrual of Additional Interest will
cease (without in any way limiting the effect of any subsequent Registration
Default requiring the payment of Additional Interest).
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The Company shall notify the Trustee immediately upon the happening of each
and every Registration Default. The Trustee shall be entitled, on behalf of
Holders of Securities, to seek any available remedy for the enforcement of this
Agreement, including for the payment of any Additional Interest. Notwithstanding
the foregoing, the parties agree that the sole monetary damages payable for a
violation of the terms of this Agreement with respect to which additional
monetary amounts are expressly provided shall be as set forth in this Section
2(d). Nothing shall preclude a Notice Holder or Holder of Registrable Securities
from pursuing specific performance or other equitable relief with respect to
this Agreement.
(e) Although the Company is required by this Agreement to register the
Registrable Securities, including Shares issued upon conversion of the
Notes, for resale, the Company will not be required to issue registered
shares upon conversion of the Notes.
3. REGISTRATION PROCEDURES.
The following provisions shall apply to the Shelf Registration Statement
filed pursuant to Section 2:
(a) The Company and each Guarantor shall:
(i) prepare and file with the Commission a registration statement with
respect to the shelf registration on any form which may be utilized by the
Company or designate an existing effective registration statement and
which, in each case, shall permit the disposition of the Registrable
Securities in accordance with the intended method or methods thereof, as
specified in writing by the Holders of the Registrable Securities, and use
commercially reasonable efforts to cause such registration statement to
become effective in accordance with Section 2(a) above;
(ii) before filing or designating any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto with the Commission,
furnish to each Initial Purchaser copies of all such documents proposed to
be filed and use commercially reasonable efforts to reflect in each such
document when so filed with the Commission such comments as such Initial
Purchaser reasonably shall propose within three (3) Business Days of the
delivery of such copies to such Initial Purchaser;
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(iii) use its commercially reasonable efforts to prepare and file with
the Commission such amendments and post-effective amendments to the Shelf
Registration Statement and file with the Commission any other required
document as may be necessary to keep such Shelf Registration Statement
continuously effective until the expiration of the Effective Period; cause
the related Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply with
the provisions of the Securities Act applicable to it with respect to the
disposition of all Securities covered by such Shelf Registration Statement
during the Effective Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented;
(iv) promptly notify the Notice Holders of Registrable Securities (A)
when such Shelf Registration Statement or the Prospectus included therein
or any amendment or supplement to the Prospectus or post-effective
amendment has been filed with the Commission or designated, and, with
respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any request,
following the effectiveness (or designation) of the Shelf Registration
Statement, by the Commission or any other Federal or state governmental
authority for amendments or supplements to the Shelf Registration Statement
or related Prospectus or for additional information, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or written threat of any
proceedings for that purpose, (D) of the receipt by the Company or any
Guarantor of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or written threat of any proceeding for such purpose, (E) of
the occurrence of (but not the nature of or details concerning) 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 (PROVIDED, HOWEVER, that no notice by the Company
shall be required pursuant to this clause (E) in the event that the Company
either promptly files a prospectus supplement to update the Prospectus or a
Form 8-K or other appropriate Exchange Act report that is incorporated by
reference into the Shelf Registration Statement, which, in either case,
contains the requisite information with respect to such Material Event that
results in such Shelf Registration Statement no longer containing any
untrue statement of material fact or omitting to state a material fact
necessary to make the statements contained therein not misleading), (F) of
the determination by the Company that a post-effective amendment to the
Shelf Registration Statement will be filed with the Commission, which
notice may, at the discretion of the Company (or as required pursuant to
Section 3(b)), state that it constitutes a Deferral Notice, in which event
the provisions of Section 3(b) shall apply or (G) at any time when a
Prospectus is required to be delivered under the Securities Act, that the
Shelf Registration Statement, Prospectus, Prospectus amendment or
supplement or post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder;
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(v) prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, use its commercially
reasonable efforts to register or qualify, or cooperate with the Notice
Holders of Securities included therein and their respective counsel in
connection with the registration or qualification of, such Securities for
offer and sale under the securities or blue sky laws of such jurisdictions
within the United States as any such Notice Holders 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 covered
by the Shelf Registration Statement; prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration Statement, use
its commercially reasonable efforts to keep each such registration or
qualification (or exemption therefrom) effective during the Effective
Period in connection with such Notice Holder's offer and sale of
Registrable Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the Shelf Registration
Statement and the related Prospectus; PROVIDED that the Company 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;
(vi) use its commercially reasonable efforts to prevent the issuance
of, and if issued, to obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement or any post-effective
amendment thereto, and to lift any suspension of the qualification of any
of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in each case at the earliest practicable
date;
(vii) upon reasonable notice, for a reasonable period prior to the
filing or designation of the Shelf Registration Statement, and throughout
the Effective Period, (i) make reasonably available for inspection by a
representative of, and Special Counsel acting for, Majority Holders of the
Securities being sold and any underwriter (and its counsel) participating
in any disposition of Securities pursuant to such Shelf Registration
Statement, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries and (ii) use
commercially reasonable 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 in connection with such Shelf Registration Statement;
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(viii) in connection with an underwritten offering pursuant to the
Shelf Registration Statement with an aggregate public offering price of at
least $20 million, if requested by Majority Holders of the Securities being
sold in such underwriting, its Special Counsel or the managing
underwriters, use its commercially reasonable efforts to cause (i) its
counsel to deliver an opinion relating to the Shelf Registration Statement
and the Securities in customary form, (ii) its officers to execute and
deliver all customary documents and certificates reasonably requested by
the Majority Holders of the 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; PROVIDED, that
such underwritten offering is subject to the consent of the Company, such
consent not to be unreasonably withheld;
(ix) if reasonably requested by any Initial Purchaser or any Notice
Holder, promptly incorporate in a prospectus supplement or post-effective
amendment to the Shelf Registration Statement such information as such
Initial Purchaser or such Notice Holder shall, on the basis of a written
opinion of nationally-recognized counsel experienced in such matters,
determine to be required to be included therein by applicable law and make
any required filings of such prospectus supplement or such post-effective
amendment; PROVIDED, that the Company shall not be required to take any
actions under this Section 3(a)(ix) that are not, in the reasonable opinion
of counsel for the Company, in compliance with applicable law;
(x) promptly furnish to each Notice Holder and each Initial Purchaser,
upon their request and without charge, at least one (1) conformed copy of
the Shelf Registration Statement and any amendments thereto, including
financial statements but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits; PROVIDED,
HOWEVER, that the Company shall have no obligation to deliver to Notice
Holders or the Initial Purchasers a copy of any amendment publicly
available on the Company's website;
(xi) during the Effective Period, deliver to each Notice Holder in
connection with any sale of Registrable Securities pursuant to the Shelf
Registration Statement, without charge, as many copies of the Prospectus
relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such Notice Holder
may reasonably request; and the Company hereby consents (except during such
periods that a Deferral Notice is outstanding and has not been revoked) to
the use of such Prospectus or each amendment or supplement thereto by each
Notice Holder in connection with any offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement
thereto in the manner set forth therein; and
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(xii) cooperate with the Notice Holders of Securities to facilitate
the timely preparation and delivery of certificates representing Securities
to be sold pursuant to the Shelf 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 two business days
prior to sales of Securities pursuant to such Shelf Registration Statement.
(b) 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 Material Event as a result of which the 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, or (C) the occurrence or existence
of any corporate development that, in the discretion of the Company, makes it
appropriate to suspend the availability of the Shelf Registration Statement and
the related Prospectus, the Company will (i) in the case of clause (B) above,
subject to the third sentence of this provision, 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 the Shelf Registration Statement, subject to the third sentence of this
provision, use commercially reasonable efforts to cause it to be declared
effective as promptly as is practicable, and (ii) give notice to the Notice
Holders that the availability of the Shelf Registration Statement is suspended
(a "Deferral Notice"). Upon receipt of any Deferral Notice, each Notice Holder
agrees not to sell any Registrable Securities pursuant to the Shelf Registration
Statement until such Notice Holder's receipt of copies of the supplemented or
amended Prospectus provided for in clause (i) above, or until it 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 and each Guarantor
will use its commercially reasonable efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as promptly as
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 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; PROVIDED that the period during which
the availability of the Shelf Registration Statement and any Prospectus is
suspended (the "Deferral Period"), without the Company incurring any obligation
to pay Additional Interest pursuant to Section 2(d), shall not exceed thirty
(30) days in the aggregate in any fiscal quarter or ninety (90) days in the
aggregate in any twelve (12) month period.
12
(c) Each Holder of Registrable Securities agrees that upon receipt of any
Deferral Notice from the Company, such Holder shall forthwith discontinue (and
cause any placement or sales agent or underwriters acting on their behalf to
discontinue) the disposition of Registrable Securities pursuant to the
registration statement applicable to such Registrable Securities until such
Holder (i) shall have received copies of such amended or supplemented Prospectus
and, if so directed by the Company, such Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such Holder's possession of the Prospectus covering such Registrable Securities
at the time of receipt of such notice or (ii) shall have received notice from
the Company that the disposition of Registrable Securities pursuant to the Shelf
Registration may continue.
(d) The Company may require each Holder of Registrable Securities as to
which any registration pursuant to Section 2(a) is being effected to furnish to
the Company such information regarding such Holder and such Holder's intended
method of distribution of such Registrable Securities as the Company may from
time to time reasonably request in writing, but only to the extent that such
information is required in order to comply with the Securities Act. Each such
Holder agrees to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such Holder to the Company or
of the occurrence of any event in either case as a result of which any
Prospectus relating to such registration contains or would contain an untrue
statement of a material fact regarding such Holder or such Holder's intended
method of disposition of such Registrable Securities or omits to state any
material fact regarding such Holder or such Holder's intended method of
disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading, and promptly to furnish
to the Company any additional information required to correct and update any
previously furnished information or required so that such Prospectus shall not
contain, with respect to such Holder or the disposition of such Registrable
Securities, 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.
(e) The Company and each Guarantor shall comply with all applicable rules
and regulations of the Commission and make generally available to its
securityholders earning statements (which need not be audited) satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 40 days
after the end of any 12-month period (or 75 days after the end of any 12-month
period if such period is a fiscal year) commencing on the first day of the first
fiscal quarter of the Company commencing after the effective date of the Shelf
Registration Statement, which statements shall cover said 12-month periods.
13
(f) The Company shall provide a CUSIP number for all Registrable Securities
covered by the Shelf Registration Statement not later than the effective date of
such Shelf Registration Statement and provide the Trustee for the Notes and the
transfer agent for the Shares with printed certificates for the Registrable
Securities that are in a form eligible for deposit with The Depository Trust
Company.
(g) The Company and each Guarantor shall use its commercially reasonable
efforts to provide such information as is required for any filings required to
be made with the National Association of Securities Dealers, Inc.
(h) Until the expiration of the Effectiveness Period, the Company will not,
and will not permit any of its controlled "affiliates" (as defined in Rule 144)
to, resell any of the Securities that have been reacquired by any of them except
pursuant to an effective registration statement under the Securities Act.
(i) The Company and each of the Guarantors shall cause the Indenture to be
qualified under the Trust Indenture Act in a timely manner.
4. HOLDER'S OBLIGATIONS.
Each Holder agrees, by acquisition of the Registrable Securities, that
no Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to the Shelf Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section 2(c)
hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as may be
required to be disclosed in the Shelf Registration Statement under applicable
law or pursuant to Commission comments. Each Holder further agrees not to sell
any Registrable Securities pursuant to the Shelf Registration Statement without
delivering, or causing to be delivered, a Prospectus to the purchaser thereof
and, following termination of the Effective Period, to notify the Company,
within 10 Business Days of a request by the Company, of the amount of
Registrable Securities sold pursuant to the Shelf Registration Statement and, in
the absence of a response, the Company may assume that all of the Holder's
Registrable Securities were so sold.
5. REGISTRATION EXPENSES.
The Company and each Guarantor agrees to bear and to pay or cause to be
paid promptly upon request being made therefor all expenses incident to the
Company's performance of or compliance with this Agreement, including, but not
limited to, (a) all Commission and any NASD registration and filing fees and
expenses, (b) all fees and expenses in connection with the qualification of the
Securities for offering and sale under the State securities and Blue Sky laws
referred to in Section 3(a)(v) hereof, including reasonable fees and
disbursements of one counsel for the placement agent or underwriters, if any, in
connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of the Shelf Registration
Statement, the related Prospectus, each amendment or supplement to each of the
foregoing, the certificates representing the Securities and all other documents
relating hereto, (d) fees and expenses of the Trustee under the Indenture, any
escrow agent or custodian, and of the registrar and transfer agent for the
Shares, (e) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
reports required by the Securities Act or the rules and regulations thereunder
to be included or incorporated by reference in the Shelf Registration Statement
or "cold comfort" letters required by or incident to such performance and
compliance) and (f) reasonable fees, disbursements and expenses of one counsel
for the Holders of Registrable Securities retained in connection with the Shelf
Registration Statement, as selected by the Company (unless reasonably objected
to by the Majority Holders of the Registrable Securities being registered, in
which case the Majority Holders shall select such counsel for the
Holders)("Special Counsel"), and fees, expenses and disbursements of any other
Persons, including special experts, retained by the Company in connection with
such registration (collectively, the "Registration Expenses"). To the extent
that any Registration Expenses are incurred, assumed or paid by any Holder of
Registrable Securities or any underwriter or placement agent therefor, the
Company shall reimburse such Person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a documented
request therefor. Notwithstanding the foregoing, the Holders of the Registrable
Securities being registered shall pay all underwriting discounts and commissions
and placement agent fees and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such Holders (severally or jointly), other than
the counsel and experts specifically referred to above.
14
6. INDEMNIFICATION.
(a) The Company and each Guarantor agrees to indemnify and hold
harmless each Holder (including, without limitation, each Initial
Purchaser), the directors, officers, employees and affiliates of each
Initial Purchaser and each person who controls such Holder within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any such Registration Statement
or any prospectus forming part thereof or in any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that neither the
Company nor any Guarantor will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission from any such document, in reliance upon and in conformity
with written information provided by a Holder in its most recent Notice and
Questionnaire; PROVIDED FURTHER, that with respect to any untrue statement
or omission of material fact from any related preliminary prospectus, the
indemnity agreement 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 or liability purchased the securities concerned, to the extent that
any such loss, claim, damage or liability of such Holder occurs under the
circumstance that (y) the untrue statement or omission of a material fact
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 Company with Section 3 and
(z) there was not sent or given to such Person, at or prior to the written
confirmation of the sale of such securities to such Person, a copy of the
final prospectus. This indemnity agreement will be in addition to any
liability that the Company or any Guarantor may otherwise have.
15
(b) Each Holder agrees to indemnify and hold harmless the Company,
each Guarantor, each of its directors, each of its officers, and each
person, if any, who controls the Company or any Guarantor within the
meaning of either the Act or the Exchange Act, against any and all losses,
claims, damages or liabilities, joint or several, to which the Company or
any Guarantor may become subject under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any such
Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not 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 information furnished to the Company by such Holder in
its most recent Notice and Questionnaire, and agrees to reimburse the
Company, as incurred, for any legal or other expenses reasonably incurred
by it in connection with investigating or defending any such loss, claim,
damage, liability or action 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 pursuant to
such Shelf Registration Statement. This indemnity agreement will be in
addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
16
unless and to the extent it has been materially prejudiced through the
forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b). If any action shall be brought
against an indemnified party and it shall have notified the indemnifying
party thereof, the indemnifying party shall be entitled to appoint counsel
(including local counsel) of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel, other than local counsel if not appointed by the
indemnifying party, retained by the indemnified party or parties except as
set forth below); PROVIDED, HOWEVER, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel (including local counsel) to represent
the indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties that are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf of
such indemnified party.
(d) The provisions of this Section 6 and Section 7 shall remain in
full force and effect, regardless of any investigation made by or on behalf
of any Holder, the Company, or any of the indemnified Persons referred to
in this Section 6 and Section 7, and shall survive the sale by a Holder of
securities covered by the Shelf Registration Statement.
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
17
received by the Company from the offering and sale of the Notes, on the one
hand, and a Holder with respect to the sale by such Holder of 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 Company and the Guarantors 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 Company and the
Guarantors 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 such offering (excluding discounts and commissions, but before
deducting expenses) received by or on behalf of the Company and the Guarantors,
on the one hand, and the total net proceeds (excluding discounts and
commissions, but before deducting expenses) received by such Holder, on the
other, bear to the total gross proceeds from the sale all Securities pursuant to
the Shelf Registration Statement in the offering of the Securities from which
the contribution claim arises. 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 Company and the Guarantors or information supplied by the Company
and the Guarantors on the one hand or to any information contained in the
relevant Notice and Questionnaire 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 shall not
be required to contribute any amount in excess of the amount by which the total
price at which the 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. RULE 144A AND RULE 144.
So long as any Registrable Securities remain outstanding, the Company
and each of the Guarantors shall use its commercially reasonable efforts to file
the reports required to be filed by it under Rule 144A(d)(4) under the Exchange
Act in a timely manner and, if at any time the Company and each of the
Guarantors is not required to file such reports, it will, upon the written
request of any Holder of 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 Company and each of the Guarantors covenants
that it will take such further action as any Holder of Restricted Securities may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act within the 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 Registrable Securities, the Company shall
deliver to such Holder a written statement as to whether it and each of the
Guarantors has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 8 shall be deemed to require the Company or any of the
Guarantors to register any of its securities pursuant to the Exchange Act.
18
9. 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 Company has
obtained the written consent of the Majority Holders. 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 are being sold pursuant to the Shelf Registration Statement and
that does not directly or indirectly affect the rights of other Holders may
be given by Holders of a majority in aggregate amount of the Securities
being sold by such Holders pursuant to the Shelf 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 the Company, initially at the address set forth in the
Purchase Agreement;
(2) If to the Representatives, initially at the address set
forth in the Purchase Agreement; and
(3) If to a Holder, to the address of such Holder set forth in
the security register, the Notice and Questionnaire or other
records of the Company.
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
Company, each Guarantor and each of 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 all of which taken together shall
constitute one and the same agreement.
19
(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, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) 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 Company or by any Holder of
any of their respective obligations under this Agreement, each Holder or the
Company, 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 Company of its obligations under Section 3 hereof
for which Additional Interest have been paid pursuant to Section 2 hereof), will
be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement (other than the recovery of damages for a breach by
the Company of its obligations under Section 3 hereof for which Additional
Interest have been paid pursuant to Section 2 hereof), and hereby further agree
that, in the event of any action for specific performance in respect of such
breach, it shall waive the defense that a remedy at law would be adequate.
(i) NO INCONSISTENT AGREEMENTS. The Company and each of the Guarantors
represents, warrants and agrees that (i) it has not entered into, 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) it has not previously
entered into any agreement which remains in effect granting any registration
rights with respect to any of its debt securities to any person and (iii)
without limiting the generality of the foregoing, without the written consent of
the Majority Holders, it shall not grant to any Person the right to request the
Company to register any securities of the Company under the Securities Act
unless the rights so granted are not in conflict or inconsistent with the
provisions of this Agreement.
(j) NO PIGGYBACK ON REGISTRATIONS. Neither the Company nor any of its
security holders (other than the Holders of Restricted Securities in such
capacity) shall have the right to include any securities of the Company in any
Shelf Registration Statement other than Registrable 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 commercially reasonable 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.
20
(l) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any Holder of
Registrable Securities, any director, officer or partner of such Holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such Holder.
(m) SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or approval
of Holders of a specified percentage of Securities is required hereunder,
Securities held by the Company or its affiliates (other than subsequent Holders
of Securities if such subsequent Holders are deemed to be affiliates solely by
reason of their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
21
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Guarantors and
the Initial Purchasers in accordance with its terms.
Very truly yours,
CHEMED CORPORATION
By /s/ David P. Williams
- -----------------------------------------
Name: David P. Williams
Title: Vice President and CFO
THE GUARANTORS
COMFORT CARE HOLDINGS, CO.
JET RESOURCE, INC.
ROTO-ROOTER CORPORATION
ROTO-ROOTER SERVICES COMPANY
NUROTOCO OF MASSACHUSETTS, INC.
CONSOLIDATED HVAC, INC.
ROTO-ROOTER GROUP, INC.
R.R. UK, INC.
ROTO-ROOTER DEVELOPMENT COMPANY
VITAS HEALTHCARE CORPORATION
VITAS HEALTHCARE CORPORATION OF CALIFORNIA
VITAS HEALTHCARE CORPORATION OF CENTRAL FLORIDA
VITAS HEALTHCARE CORPORATION OF FLORIDA
VITAS HEALTHCARE CORPORATION OF ILLINOIS
VITAS HEALTHCARE CORPORATION OF OHIO
VITAS HEALTHCARE CORPORATION ATLANTIC
VITAS HEALTHCARE CORPORATION MIDWEST
VITAS HME SOLUTIONS, INC.
VITAS HOLDINGS CORPORATION
HOSPICE CARE INCORPORATED
VITAS HOSPICE SERVICES, L.L.C.
VITAS HEALTHCARE OF TEXAS, L.P.
VITAS HEALTHCARE CORPORATION OF GEORGIA
VITAS HEALTHCARE CORPORATION OF ARIZONA
VITAS CARE SOLUTIONS, INC.
By /s/ David P. Williams
- -------------------------------------------
Name: David P. Williams
Title: Vice President
Accepted: May 14, 2007
For itself and on behalf of the several Initial Purchasers listed on Schedule 1
to the Purchase Agreement.
J.P. MORGAN SECURITIES INC.
By /s/ Sudheer Tegulapalle
- --------------------------------------
Name: Sudheer Tegulapalle
Authorized Signatory
CITIGROUP GLOBAL MARKETS INC.
By /s/ Dung Nguyen
- --------------------------------------
Name: Dung Nguyen
Authorized Signatory