EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of the ____ day of December 1997, between the person
whose name and address appears on the signature page hereto (individually, a
"Holder" or, collectively with the holders of the Units issued in the Offering,
each as defined below, the "Holders") and Amedisys, Inc., a Delaware
corporation having its principal executive office at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company").
WHEREAS, simultaneously or in connection with the execution and delivery of
this Agreement, the Holders are purchasing from the Company in a private
offering (the "Offering") pursuant to a Confidential Private Term Sheet (the
"Term Sheet") an aggregate of up to eighty (80) units (the "Units") each Unit
consisting of ten thousand (10,000) shares (the "Preferred Shares") of
convertible preferred stock, par value $.001 per share, of the Company;
WHEREAS, each of the Preferred Shares is convertible into a number of
shares of common stock, par value $.001 per share, of the Company (the
"Conversion Shares") equal to the face value of the Preferred Shares ($10.00)
divided by 88% (the "Conversion Factor") of the average closing sale price of
the Common Stock for the 15 trading days immediately prior to an initial closing
of the Offering.
WHEREAS, the Company desires to grant to the Holder the registration rights
set forth herein with respect to the Conversion Shares;
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. REGISTRABLE SECURITIES. As used herein the term "Registrable Security"
means each of the shares of Common Stock, Conversion Shares; provided, however,
that with respect to any particular Registrable Security, such security shall
cease to be a Registrable Security when, as of the date of determination, (i) it
has been effectively registered under the Securities Act of 1933, as amended
(the "Securities Act"), and disposed of pursuant thereto, (ii) registration
under the Securities Act is no longer required for the immediate public
distribution of such security, or (iii) it has ceased to be outstanding. In the
event of any merger, reorganization, consolidation, recapitalization or other
change in corporate structure affecting the Common Stock, such adjustment shall
be made in the definition of "Registrable Security" as is appropriate in order
to prevent any dilution or enlargement of the rights granted pursuant to this
Article 1.
2. AUTOMATIC REGISTRATION.
(a) The Company shall prepare and file with the Commission, within 30 days
following the final closing of the Offering (the "Final Closing"), at the sole
expense of the Company, in respect of all holders of Registrable Securities, a
Registration Statement so as to permit a public offering and sale of the
Registrable Securities. The Company
shall use its best efforts to cause the Registration Statement to become
effective within four months following the Final Closing.
(b) If the Registration Statement is not declared effective by the
Commission within four months following the Final Closing, then, commencing on
the first day of the fifth month following the Final Closing, the Conversion
Factor (as defined in the Term Sheet) shall decrease by .5% on the first day of
each month that any of the Registrable Securities continue not to be publicly
tradeable pursuant to an effective Registration Statement under the Act (e.g.,
the Conversion Factor will decrease to 87.5% and 87% on the first day of the
fifth and sixth month, respectively, following the Final Closing) and the
Company will continue to use its best efforts to cause the Commission to declare
the effectiveness of the Registration Statement as to permit the public trading
of the Registrable Securities pursuant thereto.
(c) Once effective, the Company will be required to maintain the
effectiveness of the Registration Statement until the earlier of (i) the date
that all of the Registrable Securities have been sold or (ii) the date that all
holders of Registrable Securities receive an opinion of counsel to the Company
that all of the Registrable Securities may be freely traded without registration
under the Securities Act, under Rule 144(k) promulgated under the Securities Act
or otherwise.
3. COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION. The Company
covenants and agrees as follows:
(a) If any stop order shall be issued by the Commission in connection with
the Registration Statement or, following its effectiveness, the Company will use
its best efforts to obtain the removal of such order. Following the effective
date of a Registration Statement, the Company shall, upon the request of the
Holder, forthwith supply such reasonable number of copies of the Registration
Statement, preliminary prospectus and prospectus meeting the requirements of the
Act, and other documents necessary or incidental to the public offering of the
Registrable Securities, as shall be reasonably requested by the Holder to permit
the Holder to make a public distribution of the Holder's Registrable Securities.
The obligations of the Company hereunder with respect to the Holder's
Registrable Securities are expressly conditioned on the Holder's furnishing to
the Company such appropriate information concerning the Holder, the Holder's
Registrable Securities and the terms of the Holder's offering of such
Registrable Securities as the Company may reasonably request.
(b) The Company shall pay all costs, fees and expenses in connection with
all Registration Statements filed pursuant to Article 2 hereof including,
without limitation, the Company's legal and accounting fees, printing expenses,
and blue sky fees and expenses; provided, however, that the Holder shall be
solely responsible for the fees of any counsel retained by the Holder in
connection with such registration and any transfer taxes or underwriting
discounts, commissions or fees applicable to the Registrable Securities sold by
the Holder pursuant thereto.
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(c) The Company will use reasonable efforts to qualify or register the
Registrable Securities included in a Registration Statement for offering and
sale under the securities or blue sky laws of such states as are requested by
the holders of such securities, provided that the Company shall not be obligated
to execute or file any general consent to service of process or to qualify as a
foreign corporation to do business under the laws of any such jurisdiction.
(d) Nothing contained in this Agreement shall be construed as requiring
any Holder to convert its Preferred Shares prior to the initial filing of any
Registration Statement or the effectiveness thereof.
4. ADDITIONAL TERMS.
(a) The Company shall indemnify and hold harmless the Holder and each
underwriter, within the meaning of the Securities Act, who may purchase from or
sell for the Holder, any Registrable Securities, from and against any and all
losses, claims, damages and liabilities caused by any untrue statement of a
material fact contained in the Registration Statement, any other registration
statement filed by the Company under the Securities Act, any post-effective
amendment to such registration statements, or any prospectus included therein or
caused by any omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission based upon information furnished or required to be
furnished in writing to the Company by any Holder or underwriter expressly for
use therein, which indemnification shall include each person, if any, who
controls either the Holder or underwriter within the meaning of the Securities
Act and each officer, director, employee and agent of the Holder and
underwriter; provided, however, that the indemnification in this Section 5(a)
with respect to any prospectus shall not inure to the benefit of the Holder or
underwriter (or to the benefit of any person controlling the Holder or
underwriter) on account of any such loss, claim, damage or liability arising
from the sale of Registrable Securities by the Holder or underwriter, if a copy
of a subsequent prospectus correcting the untrue statement or omission in such
earlier prospectus was provided to the Holder or underwriter by the Company
prior to the subject sale and the subsequent Prospectus was not delivered or
sent by the Holder or underwriter to the purchaser prior to such sale.
(b) If for any reason the indemnification provided for in the preceding
section is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, damage, liability or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect not only the relative benefits
received by the indemnified party and the indemnifying party, but also the
relative fault of the indemnified party and the indemnifying party, as well as
any other relevant equitable considerations.
(c) Neither the filing of a Registration Statement by the Company pursuant
to this Agreement nor the making of any request for prospectuses by the Holder
shall
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impose upon the Holder any obligation to sell the Holder's Registrable
Securities, except as may be required in accordance with Section 2 hereof.
(d) The Holder, upon receipt of notice from the Company that an event has
occurred which requires a post-effective amendment to the Registration Statement
or a supplement to the prospectus included therein, shall promptly discontinue
the sale of Registrable Securities until the Holder receives a copy of a
supplemented or amended prospectus from the Company, which the Company shall
provide as soon as practicable after such notice.
(e) If the Company fails to keep the Registration Statement referred to in
Article 2 above continuously effective during the requisite period, then the
Company shall use its best efforts to promptly update the Registration Statement
or file a new registration statement covering the Registrable Securities
remaining unsold, subject to the terms and provisions hereof.
5. PROHIBITION ON SALES. The Holders agree that they will not sell,
transfer, pledge, hypothecate or otherwise dispose of the Preferred Shares or
Conversion Shares pursuant to the Registration Statement or otherwise until 120
days following the Final Closing. The Company agrees to provide to each Holder
written notice of the date of the Final Closing within 60 days following the
Final Closing.
6. GOVERNING LAW.
(a) The Registrable Securities will be, if and when issued, delivered in
New York. This Agreement shall be deemed to have been made and delivered in the
State of New York and shall be governed as to validity, interpretation,
construction, effect and in all other respects by the internal substantive laws
of the State of New York, without giving effect to the choice of law rules
thereof.
(b) The Company and the Holder each (a) agrees that any legal suit, action
or proceeding arising out of or relating to this Agreement shall be instituted
exclusively in New York State Supreme Court, County of New York, or in the
United States District Court for the Southern District of New York, (b) waives
any objection which the Company or such Holder may have now or hereafter to the
venue of any such suit, action or proceeding, and (c) irrevocably consents to
the jurisdiction of the New York State Supreme Court, County of New York and the
United States District Court for the Southern District of New York in any such
suit, action or proceeding. The Company and the Holder each further agrees to
accept and acknowledge service of any and all process which may be served in any
such suit, action or proceeding in the New York State Supreme Court, County of
New York or in the United States District Court for the Southern District of New
York and agrees that service of process upon the Company or the Holder mailed by
certified mail to their respective addresses shall be deemed in every respect
effective service of process upon the Company or the Holder, as the case may be,
in any suit, action or proceeding. Each of the Company and the Holder waived
trial by jury in any action to enforce the Holder's rights hereunder.
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7. AMENDMENT. This Agreement may only be amended by a written instrument
executed by the Company and the Holder.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings of the parties, oral and written, with
respect to the subject matter hereof.
9. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
10. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly given when delivered by
hand or mailed by registered or certified mail, postage prepaid, return receipt
requested, as follows:
If to the Holder, to his or her address set forth on the signature page of
this Agreement.
If to the Company, to the address set forth on the first page of this
Agreement.
11. BINDING EFFECT; BENEFITS. The Holder may not assign his or her rights
hereunder. This Agreement shall inure to the benefit of, and be binding upon,
the parties hereto and their respective heirs, legal representatives and
successors. Nothing herein contained, express or implied, is intended to confer
upon any person other than the parties hereto and their respective heirs, legal
representatives and successors, any rights or remedies under or by reason of
this Agreement.
12. HEADINGS. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
13. SEVERABILITY. Any provision of this Agreement which is held by a court
of competent jurisdiction to be prohibited or unenforceable in any
jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first above written.
AMEDISYS, INC.
By:
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Name:
Title:
HOLDER:
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