Exhibit 10.3
AMENDMENT NO. 2 TO REGISTRATION AGREEMENT
AMENDMENT NO. 2 TO REGISTRATION AGREEMENT, dated as of November 19,
1999 ("Amendment No. 2"), by and among Select Medical Corporation, a Delaware
corporation (the "Company")and the stockholders of the Company whose names
appear in Schedule I annexed hereto (collectively, the "Stockholders"), amending
the Registration Agreement dated as of February 5, 1997, as amended as of
December 15, 1998 (the "Agreement") by and among the Company, the Stockholders
and the other stockholders of the Company named as parties thereto at the foot
thereof.
WHEREAS, the Company and certain of the Stockholders (the "November
1999 Investors") are parties to a Securities Purchase Agreement dated as of
November 19, 1999 (the "1999 Purchase Agreement"), providing, among other
things, for the sale to such November 1999 Investors of an aggregate (i)
1,667,000 shares of the Company's Common Stock, par value $.01 (the "Common
Stock") and (ii) 16,000,000 shares of the Company's Class B Preferred Stock, par
value $01 (the "Class B Preferred "together with the Common Stock subject to the
1999 Purchase Agreement, the "November 1999 Shares"); and
WHEREAS, the Company and the Stockholders entered into the Agreement
in order, among other things, to specify certain rights and obligations of each
of the parties thereto with respect to the shares of Common Stock held by each
of them; and
WHEREAS, the Agreement may be amended by the written consent of the
Company and the holders of 66.67% of the Registrable Securities (as defined
therein); and
WHEREAS, the Stockholders collectively own more than 66.67% of the
outstanding Registrable Securities; and
WHEREAS, the Company and the Stockholders now desire to amend the
Agreement in the manner set forth below in order, among other things, to include
the November 1999 Shares as Registrable Securities under the terms of the
Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions, References. Unless otherwise specifically
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defined herein, each term used herein which is defined in the Agreement shall
have the meaning assigned to such term in the Agreement. Each reference to
"hereof" "hereunder," "herein," and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended by this Amendment No. 2.
Section 2. Registrable Securities. For purposes of the Agreement,
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the November 1999 Shares shall be deemed to be included in the term "Investor
Registrable Securities".
Section 3. Amendment to Second Unnumbered Paragraph. The second
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unnumbered paragraph of the Agreement is hereby amended to read in its entirety
as follows:
"The Company and certain of the Investors are parties to a Purchase
Agreement, dated as of February 5, 1997 (the "1997 Purchase Agreement").
The Company, the Investors and the Additional Stockholders (as such term is
defined in Amendment No. 1 to Registration Agreement, dated as of December
15, 1998 among the Company and the parties thereto ("Amendment No. 1")) are
parties to a Securities Purchase Agreement, dated as of December 15, 1998
(the "1998 Purchase Agreement"). The Company and the Stockholders (as such
term is defined in Amendment No. 2 to the Registration Agreement, dated as
of November 19, 1999, among the Company and the parties thereto ("Amendment
No. 2") are parties to a Purchase Agreement, dated as of November 19, 1999
(the "1999 Purchase Agreement" and, collectively with the 1997 Purchase
Agreement and the 1998 Purchase Agreement, the "Purchase Agreements" or the
"Purchase Agreement"). In order to induce certain of the Investors to
enter into the 1997 Purchase Agreement, the Investors and the Additional
Stockholders to enter into the 1998 Purchase Agreement and the Stockholders
to enter into the 1999 Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement, as amended by
Amendment No. 1 and Amendment No. 2. The execution and delivery of this
Agreement is a condition to the Closing under the 1997 Purchase Agreement.
The execution and delivery of Amendment No. 1 is a condition to the Closing
under the 1998 Purchase Agreement. The execution and delivery of Amendment
No. 2 is a condition to the Closing under the 1999 Purchase Agreement.
Unless otherwise provided in this Agreement, capitalized terms used herein
shall have the meanings set forth in Section 7 hereof."
Section 4. Amendment of Section 7(b). Section 7(b) is hereby
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amended to read in its entirety as follows:
"'Investor Registrable Securities' means (i) any Common Stock or Class
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B Preferred issued pursuant to any of the Purchase Agreements (whether
issued before or after the respective dates thereof), (ii) any other Common
Stock or Class B Preferred issued or issuable with respect to the
securities referred to in clause (i) by way of a stock dividend or stock
split or in connection with an exchange or combination of shares,
recapitalization, merger, consolidation or other reorganization, and (iii)
any other shares of Common Stock or Class B Preferred held by Persons
holding securities described in clauses (i) and (ii) inclusive, above."
Section 5. Effect of Amendment. Except as expressly provided in
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this Amendment No. 2, nothing herein shall affect or be deemed to affect any
provisions of the
2
Agreement, and except only to the extent that they may be varied hereby, all of
the terms of the Agreement shall remain unchanged and in full force and effect.
Section 6. Applicable Law. This Amendment No. 2 shall be construed
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and enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of Delaware without reference to the principles of
conflicts of law.
Section 7. Counterparts. This Amendment No. 2 may be executed in
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counterparts, all of which together shall constitute one agreement binding on
all the parties hereto, notwithstanding that all such parties are not
signatories to the original or the same counterpart. Each party shall become
bound by this Amendment No. 2 immediately upon affixing such party's signature
hereto.
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IN WITNESS WHEREOF, the Company and the Stockholders have executed
this Amendment No. 2 as of the day and year first above written.
SELECT MEDICAL CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
Title:
STOCKHOLDERS:
GOLDER, THOMA, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ FUND V, L.P.
By GTCR V, L.P., General Partner
By Golder, Thoma, Cressey, Rauner, Inc., General
Partner
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
Title:
WELSH, CARSON, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VII, L.P.
By WCAS VII Partners, L.P., General Partner
By /s/ ▇▇▇▇▇▇▇▇ Rather
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Name:
Title:
WCAS HEALTHCARE PARTNERS, L.P.
By WCAS HC Partners, General Partner
By /s/ ▇▇▇▇▇▇▇▇ Rather
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Name:
Title:
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as Attorney-in-Fact
DELAWARE CHARTER TRUST CO., AS TRUSTEE
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CUSTODIAN
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Individually and as
Attorney-in-Fact
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SELECT INVESTMENTS II
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
Title:
SELECT PARTNERS, L.P.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
Title:
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WCAS CAPITAL PARTNERS III, L.P.
By WCAS CP III Associates, L.L.C., General Partner
By
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Name:
Title:
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D. ▇▇▇▇▇ ▇▇▇▇▇▇▇
GTCR FUND VI, L.P.
By GTCR Partners VI, L.P., General Partner
By GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., General Partner
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
Its: Principal
▇▇▇▇▇ ▇▇▇▇▇▇▇ FUND VI, L.P.
By TC Partners VI, L.P., General Partner
By ▇▇▇▇▇ ▇▇▇▇▇▇▇ Equity Partners Inc., General Partner
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
Title:
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GTCR VI EXECUTIVE FUND, L.P.
By GTCR Partners VI, L.P., General Partner
By GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., General Partner
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
Its: Principal
GTCR ASSOCIATES VI
By GTCR Partners VI, L.P., Managing General Partner
By GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., General Partner
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
Its: Principal
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇ FRIENDS FUND VI, L.P.
By TC Partners VI, L.P., General Partner
By ▇▇▇▇▇ ▇▇▇▇▇▇▇ Equity Partners, Inc., General Partner
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
Its: Principal
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SELECT HEALTHCARE INVESTORS I, L.P.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
Title:
ANVERS, L.P.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
Title:
ANVERS II, L.P.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
Title:
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SCHEDULE I
Stockholders
Golder, Thoma, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Fund V, L.P.
Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VII, L.P.
WCAS Healthcare Partners, L.P.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Select Investments II
Select Partners, L.P.
WCAS Capital Partners III, L.P.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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GTCR Fund VI, L.P.
GTCR VI Executive Fund, L.P.
GTCR Associates VI
▇▇▇▇▇ ▇▇▇▇▇▇▇ Fund VI, L.P.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Select Healthcare Investors I, L.P.
Anvers, L.P.
Anvers II, L.P.