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EXHIBIT 4.4
▇▇▇▇▇▇▇ ENTERPRISES, INC.
$200,000,000
9 5/8% Senior Notes due 2009
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
April 25, 2001
JPMORGAN, a division of
CHASE SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ Enterprises, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to JPMorgan, a division of Chase Securities Inc.,
Banc of America Securities LLC, BNY Capital Markets, Inc. and BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇
Corp. (together, the "Initial Purchasers"), upon the terms and subject to the
conditions set forth in a purchase agreement dated April 18, 2001 (the "Purchase
Agreement"), $200,000,000 aggregate principal amount of its 9 5/8% Senior Notes
due 2009 (the "Securities") to be jointly and severally guaranteed (the
"Guarantees") by the subsidiaries of the Company listed on Schedule 1 and
signatories hereto (collectively, the "Guarantors"). Capitalized terms used but
not defined herein shall have the meanings given to such terms in 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 and the Guarantors agree with the Initial
Purchasers, for the benefit of the holders (including the Initial Purchasers) of
the Securities, the Exchange Securities (as defined herein) and the Private
Exchange Securities (as defined herein) (collectively, the "Holders"), as
follows:
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1. Registered Exchange Offer. Unless the Registered Exchange Offer (as
defined herein) shall not be permitted by applicable federal law, the Company
shall (i) prepare and, not later than 60 days following the date of original
issuance of the Securities (the "Issue Date"), file with the Commission a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act with respect to a proposed offer to
the Holders of the Securities and the Guarantees (the "Registered Exchange
Offer") to issue and deliver to such Holders, in exchange for the Securities and
the Guarantees, a like aggregate principal amount of debt securities of the
Company and guarantees thereof by the Guarantors (the "Exchange Securities")
that are identical in all material respects to the Securities, except for the
transfer restrictions relating to the Securities, (ii) use its commercially
reasonable efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act no later than 120 days after the Issue Date
and the Registered Exchange Offer to be consummated no later than 150 days after
the Issue Date and (iii) keep the Exchange Offer Registration Statement
effective for not less than 20 business days (or longer, if required by
applicable law) after the date on which notice of the Registered Exchange Offer
is mailed to the Holders (such period being called the "Exchange Offer
Registration Period"). The Exchange Securities will be issued under the
Indenture or an indenture (the "Exchange Securities Indenture") between the
Company, the Guarantors and the Trustee or such other bank or trust company that
is reasonably satisfactory to the Initial Purchasers, as trustee (the "Exchange
Securities Trustee"), such indenture to be identical in all material respects to
the Indenture, except for the transfer restrictions relating to the Securities
(as described above).
As soon as practicable after the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder (a) is not an affiliate of the Company or an
Exchanging Dealer (as defined herein) not complying with the requirements of the
next sentence, (b) is not an Initial Purchaser holding Securities that have, or
that are reasonably likely to have, the status of an unsold allotment in an
initial distribution, (c) acquires the Exchange Securities in the ordinary
course of such Holder's business and (d) has no arrangements or understandings
with any person to participate in the distribution of the Exchange Securities)
and to trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States. The Company, the Guarantors, the Initial Purchasers and each Exchanging
Dealer acknowledge that, pursuant to current interpretations by the Commission's
staff of Section 5 of the Securities Act, each Holder that is a broker-dealer
electing to exchange Securities, acquired for its own account as a result of
market-making activities or other trading activities, for Exchange Securities
(an "Exchanging Dealer"), is required to deliver a prospectus containing
substantially the information set forth in Annex A hereto on the cover, in Annex
B hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section and in Annex C hereto in the "Plan of Distribution"
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section of such prospectus in connection with a sale of any such Exchange
Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offer.
If, prior to the consummation of the Registered Exchange Offer, any
Holder holds any Securities acquired by it that have, or that are reasonably
likely to be determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Registered
Exchange Offer, the Company shall, upon the request of any such Holder, by
notice to the Company within 30 days of the Registered Exchange Offer, no later
than 30 days after the delivery of the Exchange Securities in the Registered
Exchange Offer, issue and deliver to any such Holder, in exchange for the
Securities held by such Holder (the "Private Exchange"), a like aggregate
principal amount of debt securities of the Company and guarantees thereof by the
Guarantors (the "Private Exchange Securities") that are identical in all
material respects to the Exchange Securities, except for the transfer
restrictions relating to such Private Exchange Securities. The Private Exchange
Securities will be issued under the same indenture as the Exchange Securities,
and the Company shall use its reasonable best efforts to cause the Private
Exchange Securities to bear the same CUSIP number as the Exchange Securities.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York City time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable
to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer and any Private Exchange, as the case may be, the Company shall:
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(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(b) deliver to the Trustee for cancellation all Securities so accepted
for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as the case
may be, promptly to authenticate and deliver to each Holder, Exchange
Securities or Private Exchange Securities, as the case may be, equal in
principal amount to the Securities of such Holder so accepted for exchange.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided that (i) in the case where
such prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Securities held by them and
(ii) the Company shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with any resale of
any Exchange Securities for a period of not less than 90 days after the
consummation of the Registered Exchange Offer.
The Indenture or the Exchange Securities Indenture, as the case may
be, shall provide that the Securities, the Exchange Securities and the Private
Exchange Securities shall vote and consent together on all matters as one class
and that none of the Securities, the Exchange Securities or the Private Exchange
Securities will have the right to vote or consent as a separate class on any
matter.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date on which interest was paid on
the Securities surrendered in exchange therefor or, if no interest has been paid
on the Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act and (iii) such Holder is not an affiliate of the Company or,
if it is such an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
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Notwithstanding any other provisions hereof, the Company and the
Guarantors will ensure that (i) any Exchange Offer Registration Statement and
any amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Company is not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof, or (ii) for any other reason the Registered Exchange Offer is not
consummated within 150 days after the Issue Date, or (iii) any Initial Purchaser
so requests with respect to Securities or Private Exchange Securities not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it following the consummation of the Registered Exchange
Offer, or (iv) any applicable law or interpretations do not permit any Holder to
participate in the Registered Exchange Offer, or (v) any Holder that
participates in the Registered Exchange Offer does not receive freely
transferable Exchange Securities in exchange for tendered Securities, or (vi)
the Company so elects, then the following provisions shall apply:
(a) The Company and the Guarantors shall use their reasonable best
efforts to file as promptly as practicable (but in no event more than 20
business days after so required or requested pursuant to this Section 2) with
the Commission (the "Shelf Filing Date"), and thereafter shall use their
commercially reasonable efforts to cause to be declared effective, a shelf
registration statement on an appropriate form under the Securities Act relating
to the offer and sale of the Transfer Restricted Securities (as defined below)
by the Holders thereof from time to time in accordance with the methods of
distribution set forth in such registration statement (hereafter, a "Shelf
Registration Statement" and, together with any Exchange Offer Registration
Statement, a "Registration Statement").
(b) The Company and the Guarantors shall use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective in order
to permit the prospectus forming part thereof to be used by Holders of Transfer
Restricted Securities for a period ending on the earlier of (i) two years from
the Issue Date or such shorter period that will terminate when all the Transfer
Restricted Securities covered by the Shelf Registration Statement have been sold
pursuant thereto and (ii) the date on which the Securities become eligible
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for resale without volume restrictions pursuant to Rule 144 under the Securities
Act (in any such case, such period being called the "Shelf Registration
Period"). The Company and the Guarantors shall be deemed not to have used their
reasonable best efforts to keep the Shelf Registration Statement effective
during the requisite period if they voluntarily take any action that would
result in Holders of Transfer Restricted Securities covered thereby not being
able to offer and sell such Transfer Restricted Securities during that period,
unless such action is required by applicable law.
(c) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information included therein
in reliance upon or in conformity with written information furnished to the
Company by or on behalf of any Holder specifically for use therein (the
"Holders' Information")) does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming part
of any Shelf Registration Statement, and any supplement to such prospectus (in
either case, other than with respect to Holders' Information), does not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) In the absence of the events described in clauses (i) through (vi)
of the first paragraph of this Section 2, the Company and the Guarantors shall
not be permitted to discharge its obligations hereunder by means of the filing
of a Shelf Registration Statement.
3. Additional Interest. The parties hereto agree that the Holders of
Transfer Restricted Securities will suffer damages if the Company and the
Guarantors fail to fulfill their obligations under Section 1 or Section 2, as
applicable, and that it would not be feasible to ascertain the extent of such
damages. Accordingly, if (i) the Exchange Offer Registration Statement is not
filed with the Commission on or prior to 60 days after the Issue Date or the
Shelf Registration Statement is not filed with the Commission on or before the
Shelf Filing Date, (ii) the Exchange Offer Registration Statement is not
declared effective within 120 days after the Issue Date or the Shelf
Registration Statement is not declared effective within 90 days of the Shelf
Filing Date, (iii) the Registered Exchange Offer is not consummated on or prior
to 150 days after the Issue Date, or (iv) the Shelf Registration Statement is
filed and declared effective within 90 days after the Shelf Filing Date but
shall thereafter cease to be effective (at any time that the Company and the
Guarantors are obligated to maintain the effectiveness thereof) without being
succeeded within 30 days by an additional Registration Statement filed and
declared effective (each such event referred to in clauses (i) through (iv), a
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"Registration Default"), the Company and the Guarantors will be jointly and
severally obligated to pay additional interest to each Holder of Transfer
Restricted Securities, during the period of one or more such Registration
Defaults, in an amount equal to $0.05 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder until (i) the applicable
Registration Statement is filed, (ii) the Exchange Offer Registration Statement
is declared effective and the Registered Exchange Offer is consummated, (iii)
the Shelf Registration Statement is declared effective or (iv) the Shelf
Registration Statement again becomes effective, as the case may be, which rate
will be increased by an additional $ 0.05 per week per $1,000 principal amount
of Transfer Restricted Securities for each 90 day period that any additional
interest described in this Section 3 continues to accrue; provided that the rate
for additional interest will not exceed $0.15 per week per $1,000 principal
amount of Transfer Restricted Securities. All accrued additional interest will
be paid to each Holder in the same manner as interest payments on the Transfer
Restricted Securities on semi-annual payment dates that correspond to interest
payment dates for the Transfer Restricted Securities. Additional interest only
accrues during a Registration Default. Following the cure of all Registration
Defaults, the accrual of additional interest will cease. As used herein, the
term "Transfer Restricted Securities" means each Security or Private Exchange
Security, until the earliest to occur of: (i) the date on which such Security
has been exchanged for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) the date on which such Security or Private Exchange
Security has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement or (iii) the date on
which such Security or Private Exchange Security is distributed to the public
pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act. Notwithstanding anything to the contrary in
this Section 3(a), neither the Company nor the Guarantors shall be required to
pay additional interest to a Holder of Transfer Restricted Securities if such
Holder failed to comply with its obligations to make the representations set
forth in the second to last paragraph of Section 1 or failed to provide the
information required to be provided by it, if any, pursuant to Section 4(n).
(a) The Company shall notify the Trustee and the Paying Agent under
the Indenture immediately upon the happening of each and every Registration
Default. The Company and the Guarantors shall pay the additional interest due on
the Transfer Restricted Securities by depositing with the Paying Agent (which
may not be the Company for these purposes), in trust, for the benefit of the
Holders thereof, prior to 10:00 a.m., New York City time, on the next interest
payment date specified by the Indenture and the Securities, sums sufficient to
pay the additional interest then due. The additional interest due shall be
payable on each interest payment date specified by the Indenture and the
Securities to the record holder entitled to receive the interest payment to be
made on such date. Each obligation to pay additional interest shall be deemed to
accrue from and including the date of the applicable Registration Default.
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(b) The parties hereto agree that the additional interest provided for
in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Securities by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and the Registered Exchange
Offer to be consummated, in each case to the extent required by this Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and shall use its reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as any Initial
Purchaser may reasonably propose within five business days after the delivery of
such document to such Initial Purchaser; (ii) include the information set forth
in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and in Annex
C hereto in the "Plan of Distribution" section of the prospectus forming a part
of the Exchange Offer Registration Statement, and include the information set
forth in Annex D hereto in the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; and (iii) if requested by any Initial Purchaser,
include the information required by Items 507 or 508 of Regulation S-K, as
applicable, in the prospectus forming a part of the Exchange Offer Registration
Statement.
(b) The Company shall advise each Initial Purchaser, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such person,
confirm such advice in writing (which advice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose;
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(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities, the
Exchange Securities or the Private Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included
therein in order that the statements therein are not misleading and do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) The Company and the Guarantors will make every reasonable effort
to obtain the withdrawal at the earliest possible time of any order suspending
the effectiveness of any Registration Statement.
(d) The Company will furnish to each Holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration Statement,
without charge, at least one conformed copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules and, if any such Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(e) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Securities included within the
coverage of any Shelf Registration Statement, without charge, as many copies of
the prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company consents to the use of such prospectus
or any amendment or supplement thereto by each of the selling Holders of
Transfer Restricted Securities in connection with the offer and sale of the
Transfer Restricted Securities covered by such prospectus or any amendment or
supplement thereto.
(f) The Company will furnish to each Initial Purchaser and each
Exchanging Dealer, and to any other Holder who so requests, without charge, at
least one conformed copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if any Initial Purchaser or Exchanging Dealer or any such Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(g) The Company will, during the Exchange Offer Registration Period or
the Shelf Registration Period, as applicable, promptly deliver to each Initial
Purchaser, each Exchanging Dealer and such other persons that are required to
deliver a prospectus following the Registered Exchange Offer, without charge, as
many copies of the final prospectus in-
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cluded in the Exchange Offer Registration Statement or the Shelf Registration
Statement and any amendment or supplement thereto as such Initial Purchaser,
Exchanging Dealer or other persons may reasonably request; and the Company and
the Guarantors consent to the use of such prospectus or any amendment or
supplement thereto by any such Initial Purchaser, Exchanging Dealer or other
persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Company and the Guarantors will use their reasonable best efforts to register or
qualify, or cooperate with the Holders of Securities, Exchange Securities or
Private Exchange Securities included therein and their respective counsel in
connection with the registration or qualification of, such Securities, Exchange
Securities or Private Exchange Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holder reasonably
requests in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the Securities,
Exchange Securities or Private Exchange Securities covered by such Registration
Statement; provided that the Company and the Guarantors will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is not then so subject.
(i) The Company and the Guarantors will cooperate with the Holders of
Securities, Exchange Securities or Private Exchange Securities to facilitate the
timely preparation and delivery of certificates representing Securities,
Exchange Securities or Private Exchange Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as the Holders thereof may request in writing at
least two business days prior to sales of Securities, Exchange Securities or
Private Exchange Securities pursuant to such Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Company and the Guarantors are required to
maintain an effective Registration Statement, the Company will promptly prepare
and file with the Commission a post-effective amendment to the Registration
Statement or a supplement to the related prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Securities,
Exchange Securities or Private Exchange Securities from a Holder, the prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Securities, the
Exchange Securities and the Private Exchange Securities, as the case may be, and
provide the applicable trustee
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with the Securities, the Exchange Securities or the Private Exchange Securities,
as the case may be, in a form eligible for deposit with The Depository Trust
Company.
(l) The Company and the Guarantors will comply with all applicable
rules and regulations of the Commission and will make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earning statement satisfying the provisions
of Section 11(a) of the Securities Act covering a twelve month period beginning
after the effective date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act); provided that in no event shall
such earning statement be delivered later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the effective
date of the applicable Registration Statement, which statement shall cover such
12-month period.
(m) The Company and the Guarantors will cause the Indenture or the
Exchange Securities Indenture, as the case may be, to be qualified under the
Trust Indenture Act as required by applicable law in a timely manner.
(n) The Company may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Company such information concerning the Holder and the
distribution of such Transfer Restricted Securities as the Company may from time
to time reasonably require for inclusion in such Shelf Registration Statement,
and the Company may exclude from such registration the Transfer Restricted
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company pursuant to Section 4(b)(ii) through (v) (a "Suspension
Notice"), such Holder will discontinue disposition of such Transfer Restricted
Securities until such ▇▇▇▇▇▇'s receipt of copies of the supplemental or amended
prospectus contemplated by Section 4(j) or until advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may be
resumed. Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any prospectuses, other than permanent file copies, then in
such Holder'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 ▇▇▇▇▇▇'s
possession of the prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of the Suspension Notice. If the Company
shall give any notice under Section 4(b)(ii) through (v) during the period that
the Company is required to maintain an effective Registration Statement (the
"Effectiveness Period"), such Effectiveness Period shall be extended by
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the number of days during such period from and including the date of the giving
of such notice to and including the date when each seller of Transfer Restricted
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemental or amended prospectus contemplated by Section 4(j)
(if an amended or supplemental prospectus is required) or (y) the Advice (if no
amended or supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company and the
Guarantors shall enter into such customary agreements (including, if requested,
an underwriting agreement in customary form) and take all such other action, if
any, as Holders of a majority in aggregate principal amount of the Securities,
Exchange Securities and Private Exchange Securities being sold or the managing
underwriters (if any) shall reasonably request in order to facilitate any
disposition of Securities, Exchange Securities or Private Exchange Securities
pursuant to such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by a representative of, and Special
Counsel (as defined below) acting for, Holders of a majority in aggregate
principal amount of the Securities, Exchange Securities and Private Exchange
Securities being sold and any underwriter participating in any disposition of
Securities, Exchange Securities or Private Exchange 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 its reasonable best efforts to have its officers, directors,
employees, accountants and counsel supply all relevant information reasonably
requested by such representative, Special Counsel or any such underwriter (an
"Inspector") in connection with such Shelf Registration Statement.
(r) In the case of a Shelf Registration Statement, the Company shall,
if requested by Holders of a majority in aggregate principal amount of the
Securities, Exchange Securities and Private Exchange Securities being sold,
their Special Counsel or the managing underwriters (if any) in connection with
such Shelf Registration Statement, use its reasonable best efforts to cause (i)
its counsel to deliver an opinion relating to the Shelf Registration Statement
and the Securities, Exchange Securities or Private Exchange Securities, as
applicable, in customary form, (ii) its officers to execute and deliver all
customary documents and certificates requested by Holders of a majority in
aggregate principal amount of the Securities, Exchange Securities and Private
Exchange Securities being sold, their Special Counsel or the managing
underwriters (if any) and (iii) its independent public accountants to provide a
comfort letter or letters in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of Auditing
Standards No
5. Registration Expenses. The Company and the Guarantors will bear
all expenses incurred in connection with the performance of its obligations
under Sections 1, 2, 3 and 4 and the Company will reimburse the Initial
Purchasers and the Holders for the reason-
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able fees and disbursements of one firm of attorneys (in addition to any local
counsel) chosen by the Holders of a majority in aggregate principal amount of
the Securities, the Exchange Securities and the Private Exchange Securities to
be sold pursuant to each Registration Statement (the "Special Counsel") acting
for the Initial Purchasers or Holders in connection therewith.
6. Indemnification. In the event of a Shelf Registration Statement or
in connection with any prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Company and each of the Guarantors shall jointly and severally
indemnify and hold harmless each Holder (including, without limitation, any such
Initial Purchaser or Exchanging Dealer), its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls such Holder within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 6 and
Section 7 as a Holder) from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, without
limitation, any loss, claim, damage, liability or action relating to purchases
and sales of Securities, Exchange Securities or Private Exchange Securities), to
which that Holder may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and shall reimburse each Holder promptly upon demand for
any legal or other expenses reasonably incurred by that Holder in connection
with investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Company and
the Guarantors shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with any Holders'
Information; and provided, further, that with respect to any such untrue
statement in or omission from any related preliminary prospectus, the indemnity
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, liability or
action received Securities, Exchange Securities or Private Exchange Securities
to the extent that such loss, claim, damage, liability or action of or with
respect to such Holder results from the fact that both (A) a copy of the final
prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities, Exchange Securities or Private
Exchange Securities to such person and (B) the untrue statement in or omission
from the related preliminary prospectus was corrected in the final prospectus
unless, in either case, such failure to deliver the final prospectus was a
result of non-compliance by the Company with Section 4(d), 4(e), 4(f) or 4(g).
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(a) In the event of a Shelf Registration Statement, each Holder shall
indemnify and hold harmless the Company, each Guarantor and their respective
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls the Company or any Guarantor
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 6(b) and Section 7 as the Company),
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, 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
Holders' Information furnished to the Company by such ▇▇▇▇▇▇, and shall
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that no such Holder shall be liable for any indemnity claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Securities, Exchange Securities or Private Exchange Securities pursuant to such
Shelf Registration Statement.
(b) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 6. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After
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notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than the reasonable costs of investigation; provided,
however, that an indemnified party shall have the right to employ its own
counsel in any such action, but the fees, expenses and other charges of such
counsel for the indemnified party will be at the expense of such indemnified
party unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based upon advice of counsel to the indemnified party)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based upon advice of counsel
to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel reasonably satisfactory to
the indemnified party to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment or if the
indemnifying party has not paid the expenses and fees for which it is liable 20
days after notice by the indemnified party of request for reimbursement. No
indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and (ii) does not include a
statement or admission of fault, culpability or a failure to act, by or on
behalf of the indemnified party.
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),
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then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Guarantors from the offering and sale of the
Securities, on the one hand, and a Holder with respect to the sale by such
Holder of Securities, Exchange Securities or Private Exchange Securities, on the
other, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and each of 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 each of 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 the offering of the Securities (before
deducting expenses) received by or on behalf of the Company and each of the
Guarantors, on the one hand, and the total discounts and commissions received by
such Holder with respect to the Securities, Exchange Securities or Private
Exchange Securities, on the other, bear to the total gross proceeds from the
sale of Securities, Exchange Securities or Private Exchange Securities. 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 each of the
Guarantors or information supplied by the Company and each of the Guarantors on
the one hand or to any Holders' Information supplied by such Holder on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7 shall be deemed
to include, for purposes of this Section 7, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend any such action or claim. Notwithstanding
the provisions of this Section 7, an indemnifying party that is a Holder of
Securities, Exchange Securities or Private Exchange Securities shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Securities, Exchange Securities or Private Exchange
Securities sold by such indemnifying party to any purchaser exceeds the amount
of any damages which such indemnifying party has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
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8. Rules 144 and 144A. So long as any Transfer Restricted Securities
remain outstanding, the Company shall use its reasonable best efforts to file
the reports required to be filed by it under Rule 144A(d)(4) under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Company is not required to file such reports, it will, upon the written request
of any Holder of Transfer Restricted Securities, make publicly available other
information so long as necessary to permit sales of such Holder's securities
pursuant to Rules 144 and 144A. The Company and the Guarantors covenant that
they will take such further action as any Holder of Transfer Restricted
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell Transfer Restricted Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d)(4)). Upon the written request of any Holder of Transfer
Restricted Securities, the Company and the Guarantors shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
9. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount of such Transfer Restricted Securities
included in such offering, subject to the consent of the Company (which shall
not be unreasonably withheld or delayed), and such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. Miscellaneous; 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 Holders of a majority in aggregate principal
amount of the Securities, the Exchange Securities and the Private Exchange
Securities, taken as a single class. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities, Exchange
Securities or Private Exchange Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders
18
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of a majority in aggregate principal amount of the Securities, the Exchange
Securities and the Private Exchange Securities being sold by such Holders
pursuant to such Registration Statement.
(a) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this
Section 10(b), which address initially is, with respect to each
Holder, the address of such Holder maintained by the Registrar under
the Indenture, with a copy in like manner to JPMorgan, a division of
Chase Securities Inc., Banc of America Securities LLC, BNY Capital
Markets, Inc. and BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp.;
(2) if to an Initial Purchaser, initially at its address set
forth in the Purchase Agreement;
(3) if to the Company, initially at the address of the Company
set forth in the Purchase Agreement; and
(4) if to the Guarantors, initially at the address of the
Guarantors set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(b) Successors and Assigns. This Agreement shall be binding upon the
Company, the Guarantors and their respective successors and assigns.
(c) 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.
(d) 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.
19
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(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(g) Remedies. In the event of a breach by the Company or any of the
Guarantors or by any Holder of any of their respective obligations under this
Agreement, each Holder or the Company or any Guarantor, 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 or any Guarantor of their obligations under Sections 1 or 2 hereof for
which additional interest has been paid pursuant to Section 3 hereof), will be
entitled to specific performance of its rights under this Agreement. The
Company, each Guarantor 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 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.
(h) No Inconsistent Agreements. Each of the Company and each Guarantor
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 Holders of a majority in aggregate principal amount of the then outstanding
Transfer Restricted Securities, it shall not grant to any person the right to
request the Company to register any debt 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.
(i) No Piggyback on Registrations. Neither the Company nor the
Guarantors nor any of its security holders (other than the Holders of Transfer
Restricted Securities in such capacity) shall have the right to include any
securities of the Company in any Shelf Registration or Registered Exchange Offer
other than Transfer Restricted Securities.
(j) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term,
20
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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.
[Signature Pages Follow]
21
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Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
▇▇▇▇▇▇▇ ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President and Treasurer
GUARANTORS listed on Schedule 1 attached hereto
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Secretary of
each of the Guarantors
Accepted:
CHASE SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
By: CHASE SECURITIES INC., as
Representative of the Initial Purchasers
listed on Schedule 3 of the Purchase Agreement
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
22
SCHEDULE 1
GUARANTORS
Employer State of
Corporation ID Number Incorporation
AEGIS Therapies, Inc. (f/k/a ▇▇▇▇▇▇▇ Rehabilitation, Inc.) ▇▇-▇▇▇▇▇▇▇ Delaware
AGI-Camelot, Inc. ▇▇-▇▇▇▇▇▇▇ Missouri
Arborland Management Company, Inc. ▇▇-▇▇▇▇▇▇▇ South Carolina
Associated Physical Therapy Practitioners, Inc. ▇▇-▇▇▇▇▇▇▇ Pennsylvania
▇▇▇▇▇▇▇ Assisted Living, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇ - ▇▇▇▇▇ Vista Holding, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ Holdings, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇-Indianapolis, LLC ▇▇-▇▇▇▇▇▇▇ Indiana
▇▇▇▇▇▇▇ - Missouri Valley Holding, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇ - Plant City Holdings, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇ - Rapid City Holding, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇ - Tamarac Holdings, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇ - Tampa Holdings, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇ Clinical, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇ Enterprises International Limited ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Alabama, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Arizona, Inc. ▇▇-▇▇▇▇▇▇▇ California
23
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Employer State of
Corporation ID Number Incorporation
▇▇▇▇▇▇▇ Enterprises - Arkansas, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - California, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Colorado, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Connecticut, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Delaware, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Distribution Services, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - District of Columbia, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Florida, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Garden Terrace, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Georgia, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Hawaii, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Idaho, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Illinois, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Indiana, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Iowa, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Kansas, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Kentucky, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Louisiana, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Maine, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Maryland, Inc. ▇▇-▇▇▇▇▇▇▇ California
24
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Employer State of
Corporation ID Number Incorporation
▇▇▇▇▇▇▇ Enterprises - Massachusetts, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Michigan, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Minnesota, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Mississippi, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Missouri, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Montana, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Nebraska, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Nevada, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - New Hampshire, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - New Jersey, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - New Mexico, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - North Carolina, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - North Dakota, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Ohio, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Oklahoma, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Oregon, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Pennsylvania, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Rhode Island, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - South Carolina, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Tennessee, Inc. ▇▇-▇▇▇▇▇▇▇ California
25
-4-
Employer State of
Corporation ID Number Incorporation
▇▇▇▇▇▇▇ Enterprises - Texas, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Utah, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Vermont, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Virginia, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Washington, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - West Virginia, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Wisconsin, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Enterprises - Wyoming, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Health and Rehabilitation Services, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Healthcare, LLC ▇▇-▇▇▇▇▇▇▇ Indiana
▇▇▇▇▇▇▇ Healthcare Acquisition, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇ Healthcare - California, Inc. ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Holdings I, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇ Indemnity, Ltd. ▇▇-▇▇▇▇▇▇▇ Vermont
▇▇▇▇▇▇▇ Manor Inc. of Hawaii ▇▇-▇▇▇▇▇▇▇ California
▇▇▇▇▇▇▇ Real Estate Holdings, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
▇▇▇▇▇▇▇ Savana Cay Manor, Inc. ▇▇-▇▇▇▇▇▇▇ California
Carrollton Physical Therapy Clinic, Inc. ▇▇-▇▇▇▇▇▇▇ Texas
Commercial Management, Inc. 42-0891358 Iowa
Community Care, Inc. ▇▇-▇▇▇▇▇▇▇ North Carolina
26
-5-
Employer State of
Corporation ID Number Incorporation
Compassion and Personal Care Services, Inc. ▇▇-▇▇▇▇▇▇▇ North Carolina
Eastern Home Health Supply & Equipment Co., Inc. ▇▇-▇▇▇▇▇▇▇ North Carolina
Greenville Rehabilitation Services, Inc. ▇▇-▇▇▇▇▇▇▇ Texas
Hallmark Convalescent Homes, Inc. ▇▇-▇▇▇▇▇▇▇ Michigan
HomeCare Preferred Choice, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
Home Health and Rehabilitation Services, Inc. ▇▇-▇▇▇▇▇▇▇ Texas
Hospice of Eastern Carolina, Inc. ▇▇-▇▇▇▇▇▇▇ North Carolina
Hospice Preferred Choice, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
HTHC Holdings, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
Las Colinas Physical Therapy Center, Inc. ▇▇-▇▇▇▇▇▇▇ Texas
Liberty Nursing Homes, Incorporated ▇▇-▇▇▇▇▇▇▇ Virginia
MATRIX Occupational Health, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
MATRIX Rehabilitation, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
MATRIX Rehabilitation - Delaware, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
MATRIX Rehabilitation - Georgia, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
MATRIX Rehabilitation - Maryland, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
MATRIX Rehabilitation - Ohio, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
MATRIX Rehabilitation - South Carolina, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
MATRIX Rehabilitation - Texas, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
MATRIX Rehabilitation - Washington, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
27
-6-
Employer State of
Corporation ID Number Incorporation
Medical Arts Health Facility of Lawrenceville, Inc. ▇▇-▇▇▇▇▇▇▇ Georgia
Moderncare of Lumberton, Inc. ▇▇-▇▇▇▇▇▇▇ North Carolina
Nebraska City S-C-H, Inc. ▇▇-▇▇▇▇▇▇▇ Nebraska
Network for Physical Therapy, Inc. ▇▇-▇▇▇▇▇▇▇ Texas
North Dallas Physical Therapy Associates, Inc. ▇▇-▇▇▇▇▇▇▇ Texas
Nursing Home Operators, Inc. ▇▇-▇▇▇▇▇▇▇ Ohio
▇▇▇▇▇▇▇▇ Health Care, Inc. ▇▇-▇▇▇▇▇▇▇ Florida
PT NET, Inc. ▇▇-▇▇▇▇▇▇▇ Tennessee
PT Net (Colorado), Inc. ▇▇-▇▇▇▇▇▇▇ Colorado
Rehabilitation Associates of Lafayette, Inc. ▇▇-▇▇▇▇▇▇▇ Louisiana
South Alabama Nursing Home, Inc. ▇▇-▇▇▇▇▇▇▇ Alabama
South Dakota - ▇▇▇▇▇▇▇ Enterprises, Inc. ▇▇-▇▇▇▇▇▇▇ California
Spectra Healthcare Alliance, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
Tar Heel Infusion Company, Inc. ▇▇-▇▇▇▇▇▇▇ North Carolina
The Parks Physical Therapy and Work Hardening Center, Inc. ▇▇-▇▇▇▇▇▇▇ Texas
Theraphysics Corp. ▇▇-▇▇▇▇▇▇▇ Delaware
Theraphysics of New York IPA, Inc. ▇▇-▇▇▇▇▇▇▇ New York
Theraphysics Partners of Colorado, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
Theraphysics Partners of Texas, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
Theraphysics Partners of Western Pennsylvania, Inc. ▇▇-▇▇▇▇▇▇▇ Delaware
28
-7-
Employer State of
Corporation ID Number Incorporation
TMD Disposition Company ▇▇-▇▇▇▇▇▇▇ Florida
Vantage Healthcare Corporation ▇▇-▇▇▇▇▇▇▇ Delaware
29
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution".
30
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
31
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until ______, 2009, all
dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Securities) other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
32
ANNEX D
- CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.