REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
January 16, 2004, among HEALTHSOUTH Corporation, a Delaware corporation (the
"Company"), and the entities listed on the signature pages hereto as Holders
(collectively, together with their permitted successors and assigns, the
"Holders") of Warrants (as defined below) and Transfer Restricted Securities (as
defined below).
WHEREAS, the Company has agreed to issue to the lenders under
that certain Credit Agreement, dated January 16, 2004, among the Company, Credit
Suisse First Boston, acting through its Cayman Islands Branch, as Administrative
Agent, Syndication Agent and Arranger, and the lenders named therein, an
aggregate of 10,000,000 Warrants (the "Warrants"), each such Warrant initially
entitling the holder thereof to purchase one (1) share of common stock, $0.01
par value, of the Company (the "Common Stock") at an exercise price of $6.50 per
share of Common Stock;
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises and agreements contained herein, the Holders and the Company
agree as follows:
Section 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144.
Black Out Notice: As defined in Section 4(b) hereof.
Black Out Period: As defined in Section 3(a) hereof.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Effective Date: The earlier of the date on which (i) the Company shall have
provided written notice to the Holders that audited financial statements of the
Company are available for the periods that would be required to be included in a
registration statement on Form S-1 (the "Audited Financial Statements") or (ii)
the Audited Financial Statements are filed with the Commission.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expiration Date: January 16, 2014.
Person: Any individual, limited liability company, corporation, partnership,
joint venture, incorporated or unincorporated association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
Prospectus: The prospectus included in a Registration Statement at the time such
Registration Statement is declared effective, as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.
Registration Statement: Any registration statement of the Company relating to
the registration for resale of Transfer Restricted Securities that is filed
pursuant to the provisions of this Agreement and including the Prospectus
included therein, all amendments and supplements thereto including post-
effective amendments) and all exhibits and material incorporated by reference
therein.
Rule 144: Rule 144 promulgated under the Act.
Transfer Restricted Securities: (a) Each Warrant and Warrant Share held by an
Affiliate of the Company and (b) each other Warrant and Warrant Share until the
earlier to occur of the date on which (i) such Warrant has been exercised
pursuant to a Registration Statement or (ii) such Warrant Share (other than any
Warrant Share issued upon exercise of a Warrant in accordance with a
Registration Statement) has been disposed of in accordance with a Registration
Statement or distributed to the public pursuant to Rule 144 under the Act.
Warrant Agent: ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as warrant
agent under the Warrant Agreement.
Warrant Agreement: Warrant Agreement, dated January 16, 2004, between the
Company and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as warrant
agent.
Warrant Shares: Shares of Common Stock, issuable upon exercise of Warrants and
any "restricted securities" (as defined in Rule 144) issuable upon the
conversion or exchange of Common Stock.
Section 2. HOLDERS
A Person is deemed to be a Holder whenever such Person is
the holder of record of Transfer Restricted Securities.
Section 3. SHELF REGISTRATION
(a) Shelf Registration. The Company shall prepare and cause
to be filed with the Commission on or before 90 days from the Effective Date
pursuant to Rule 415 under the Securities Act a Registration Statement on the
appropriate form relating to resales of Transfer Restricted Securities by the
Holders thereof and, if permitted by applicable law, the exercise of Warrants
that are Transfer Restricted Securities. The Company shall use its reasonable
best efforts to cause the Registration Statement to be declared effective by
the Commission as soon as practicable thereafter. To the extent necessary to
ensure that the Registration Statement is available to the Holders entitled to
the benefit of this Section 3(a), the Company shall use its reasonable best
efforts to keep any Registration Statement required by this Section 3(a)
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Section 4(a) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, until the
earlier of (A) the Expiration Date and (B) the date as of which there are no
Transfer Restricted Securities; provided that such obligation shall expire
before such date if the Company delivers to the Warrant Agent a written
opinion of counsel to the Company (which opinion of counsel shall be
reasonably satisfactory to the Warrant Agent) that all Holders (other than
Affiliates of the Company) of Warrants and Warrant Shares may resell the
Warrants and the Warrant Shares without registration under the Act and without
restriction as to the manner, timing or volume of any such sale; and provided,
further, that notwithstanding the foregoing, any Affiliate of the Company may,
with notice to the Company, require the Company to keep the Registration
Statement continuously effective for resales by such Affiliate for so long as
such Affiliate holds Warrants or Warrant Shares, including as a result of any
market-making activities or other trading activities of such Affiliate.
Notwithstanding the foregoing, the Company shall not be required to amend or
supplement the Registration Statement, any related prospectus or any document
incorporated therein by reference, for a period (a "Black Out Period") not to
exceed, for so long as this Agreement is in effect, 60 consecutive days and no
more than two times in any calendar year, in the event that (i) an event or
circumstance occurs and is continuing as a result of which the Registration
Statement, any related prospectus or any document incorporated therein by
reference as then amended or supplemented or proposed to be filed would, in
the good faith judgment of the Company, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (ii)(A) the Company determines in its good faith
judgment that the disclosure of such event at such time could reasonably be
expected to have a material adverse effect on the business or operations of
the Company or (B) the disclosure otherwise relates to a material business
transaction or development which has not yet been publicly disclosed; provided
that such Black Out Period shall be extended for any period, not to exceed an
aggregate of 45 days in any calendar year, during which the Commission is
reviewing any proposed amendment or supplement to the Registration Statement,
any related prospectus or any document incorporated therein by reference which
has been filed by the Company; and provided, further, that no Black Out Period
may be in effect during the three months prior to the Expiration Date.
(b) Provision by Holders of Certain Information in
Connection with the Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 20 days after receipt of a request
therefor, the information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Act for use in connection with any Registration Statement
or Prospectus or preliminary Prospectus included therein. Each selling Holder
agrees to promptly furnish additional information required to be disclosed in
order to make the information previously furnished to the Company by such
Holder not misleading.
Section 4. REGISTRATION PROCEDURES
(a) In connection with the Registration Statement and any
related Prospectus required by this Agreement, the Company shall:
(i) use its reasonable best efforts to effect such
registration in accordance with Section 3 and in accordance with the intended
method or methods of distribution thereof (as indicated in the information
furnished to the Company pursuant to Section 3(b) hereof), and pursuant
thereto the Company will prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the Act,
which form shall be available for the registration referenced in Section 3 and
in accordance with the intended method or methods of distribution thereof
within the time periods and otherwise in accordance with the provisions
hereof;
(ii) use its reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 of this Agreement.
Upon the occurrence of any event or circumstance that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain an
untrue statement of material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by this
Agreement, the Company shall, subject to Section 3(a), file promptly, subject
to Section 4(a)(vi), an appropriate amendment to such Registration Statement
or a supplement to the Prospectus, as applicable, curing such defect, and, in
the case of an amendment, use its reasonable best efforts to cause such
amendment to be declared effective as soon as practicable;
(iii) prepare and file with the Commission such amendments
and post- effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the applicable
period set forth in Section 3; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act if required, and to comply fully with Rules 424, 430A
and 462, as applicable, under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iv) advise the Holders named in any Shelf Registration
Statement promptly and, if requested by any of such Persons, confirm such
advice in writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any applicable
Registration Statement or any post-effective amendment thereto, when the same
has become effective, (B) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement under the Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any proceeding for
any of the preceding purposes, and (D) of the happening of any event or
circumstance that as a result of which the Registration Statement, any related
prospectus or any document incorporated therein by reference as then amended
or supplemented or proposed to be filed would, in the Company's good faith
judgment, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company shall use its reasonable best efforts
to obtain the withdrawal or lifting of such order at the earliest possible
time;
(v) subject to Section 4(a)(ii), if any event or
circumstance contemplated by Section 4(a)(iv)(D) hereof shall exist or have
occurred, use its reasonable best efforts to prepare a supplement or
post-effective amendment to the Registration Statement or related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(vi) furnish to counsel to the Holders named in any Shelf
Registration Statement, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such counsel for a period of at least five Business Days, and the
Company will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which such counsel
shall reasonably object within five Business Days after the receipt thereof.
Such counsel shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or fails to comply with the applicable requirements of
the Act;
(vii) promptly prior to the filing of any document (other
than any document relative to the ordinary course of the Company's business)
that is to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to counsel to the Holders named in
any Shelf Registration Statement, and make the Company's representatives
available for discussion of such document and other customary due diligence
matters;
(viii) make available, at reasonable times, for inspection
by the Holders named in any Shelf Registration Statement and any attorney or
accountant retained by such Persons, subject to appropriate confidentiality
agreements, all financial and other records and pertinent corporate documents
of the Company, and cause the Company's officers, directors and employees to
supply all information reasonably requested by the Holders and any attorney or
accountant retained by such Persons in connection with such Registration
Statement or any post- effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(ix) if requested by the Holders named in any Shelf
Registration Statement, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if necessary,
such information as such Persons may reasonably request to have included
therein, including, without limitation, information relating to the plan of
distribution (the "Plan of Distribution") of the Transfer Restricted
Securities and the use of the Registration Statement or Prospectus for
market-making activities; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(x) furnish to each Holder named in any Shelf Registration
Statement upon request, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein and all exhibits
(excluding exhibits incorporated therein by reference);
(xi) deliver to each Holder named in any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Holder
reasonably may request; the Company hereby consents to the use (in accordance
with law and subject to Section 4(b) hereof) of the Prospectus and any
amendment or supplement thereto by each selling Person in connection with the
offering and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in connection
with the registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such U.S. jurisdictions as the
selling Holders may reasonably request and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the applicable
Registration Statement; provided that the Company shall not be required to
register or qualify as a foreign corporation where it is not now so qualified
or to take any action that would subject it to the service of process in suits
or to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to register
such Transfer Restricted Securities in such denominations and such names as
the selling Holders may reasonably request at least two Business Days prior to
such sale of Transfer Restricted Securities;
(xiv) use its reasonable best efforts to cause the
disposition of the Transfer Restricted Securities covered by the Registration
Statement to be registered with or approved by such other U.S. governmental
agencies or U.S. authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Warrant Agent or
the transfer agent and registrar for the Warrant Shares, as applicable, with
printed certificates for the Transfer Restricted Securities which are in a
form eligible for deposit with The Depository Trust Company; and
(xvi) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in Rule 158(c) under the Act).
(b) Restrictions on Holders. Each Holder agrees by
acquisition of a Transfer Restricted Security that, upon receipt of the notice
from the Company of the commencement of a Black Out Period (in each case, a
"Black Out Notice"), such Person will forthwith discontinue disposition of
Transfer Restricted Securities or exercise of warrants pursuant to the
applicable Registration Statement until such Person is advised in writing by
the Company of the termination of the Black Out Period. Each Person receiving
a Black Out Notice hereby agrees that it will either (i) destroy any
Prospectuses, other than permanent file copies, then in such Person's
possession which have been replaced by the Company with more recently dated
Prospectuses or (ii) deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Person's possession of
the Prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of the Black Out Notice.
Section 5. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including, without
limitation: (i) all registration and filing fees and expenses; (ii) all fees and
expenses of compliance with federal securities and state Blue Sky or securities
laws; (iii) all expenses of printing, including printing Prospectuses (whether
for sales, market-making or otherwise), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company; (v) if
the Common Stock shall then be listed on any national securities exchange or
automated quotation system, all application and filing fees in connection with
listing the Warrant Shares thereon, and (vi) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance). The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
Section 6. INDEMNIFICATION
(a) The Company agrees to indemnify, to the fullest extent
permitted by law, each Holder, its respective Affiliates and their respective
directors, officers, employees and agents and each Person who controls (within
the meaning of the Act) such holder ("Seller Indemnitees") against any and all
actions, losses, claims, damages, liabilities and expenses (including
attorneys' fees) arising out of or based upon any untrue or alleged untrue
statement of material fact contained in any registration statement,
prospectus, any amendment or supplement thereto or preliminary prospectus
(each as amended and/or supplemented, if the Company shall have furnished any
amendments or supplements 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 (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, except, with respect
to any Seller Indemnitee, insofar as such untrue statement or omission is made
in reliance on and conformity with any information with respect to such Seller
Indemnitee furnished to the Company in writing by such Seller Indemnitee
expressly for use therein. In connection with an underwritten offering, the
Company will indemnify each underwriter thereof, the officers and directors of
such underwriter, and each Affiliate of each underwriter to the same extent as
provided above with respect to the indemnification of the holders of Transfer
Restricted Securities; provided that such underwriter agrees to indemnify the
Company to the same extent as provided below with respect to the
indemnification of the Company by the holders of Transfer Restricted
Securities.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors and officers, and each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Company, to the same extent as the foregoing indemnity from the Company set
forth in Section 6(a) hereof, but only with reference to information relating
to such Holder furnished in writing to the Company by or on behalf of such
Holder expressly for use in any Registration Statement. In no event shall any
Holder, its directors, officers or any Person who controls such Holder be
liable or responsible for any amount in excess of the amount by which the
total amount received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii)
the amount of any damages that such Holder, its directors, officers or any
Person who controls such Holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to Section 6(a) or Section 6(b), such Person
(hereinafter called an "Indemnified Party") shall promptly notify each Person
against whom such indemnity may be sought (hereinafter called an "Indemnifying
Party") in writing and the Indemnifying Party, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified Party
to represent the Indemnified Party and any others the Indemnifying Party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any Indemnified
Party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both an
Indemnifying Party and an Indemnified Party and the Indemnified Party shall
have been advised by counsel that representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such Indemnified Parties, and
that all such fees and expenses shall be reimbursed as they are incurred. The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment against the Indemnified Party, the Indemnifying
Party agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent that the indemnification provided for in
this Section 6 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred to herein, 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 losses, claims, damages, liabilities or judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Holders, on the other hand, from their sale
of Transfer Restricted Securities or (ii) if the allocation provided by clause
6(d)(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
6(d)(i) hereof but also the relative fault of the Company, on the one hand,
and of the Holder, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative fault of the Company, on the one hand, and of the Holder, on the
other hand, 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 information supplied by
the Company, on the one hand, or by or on behalf of the Holder, on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to above shall be deemed to include, subject
to the limitations set forth in Section 6(a), any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any matter, including any action that could have
given rise to such losses, claims, damages, liabilities or judgments. The
Company and each Holder agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6, no Holder, its directors,
its officers or any Person, if any, who controls such Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which
the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii)
the amount of any damages which such Holder has otherwise been required to pay
by reason of such 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 6(d) are several in
proportion to the respective principal amount of Transfer Restricted
Securities held by each Holder hereunder and not joint.
Section 7. RULE 144
The Company agrees with each Holder that, after the
Effective Date and for so long as any Transfer Restricted Securities remain
outstanding and during any period in which the Company is subject to Section
13 or 15(d) of the Exchange Act, the Company shall make all filings required
thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
Section 8. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Section 3 hereof
may result in material irreparable injury to the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, any Holder
may obtain such relief as may be required to specifically enforce the
Company's obligations under Section 3 hereof.
(b) No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless (i) in the case
of this Section 8(c)(i), the Company has obtained the written consent of
Holders of all outstanding Transfer Restricted Securities, and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding Transfer Restricted
Securities (excluding Transfer Restricted Securities held by the Company or
its Affiliates); provided that this Agreement may be amended without the
consent of any Holder in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions
in regard to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall not in any way adversely affect any
Holder.
(d) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the Warrant Agent, with a copy to the Warrant Agent; and
(ii) if to the Company: HEALTHSOUTH Corporation
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Attention: General Counsel
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and on the next Business Day, if
timely delivered to an air courier guaranteeing overnight delivery. Copies of
all such notices, demands or other communications shall be concurrently
delivered by the Person giving the same to the Warrant Agent at the address
specified in Warrant Agreement.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation, and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed
to permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Warrant Agreement. If
any transferee of any Holder shall acquire Transfer Restricted Securities in
any manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Warrant Agreement, and
such Person shall be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any
number of counterparts 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.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
HEALTHSOUTH CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Interim Chief Financial Officer
The foregoing is hereby agreed to as of the date hereof:
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director