EXHIBIT 4.4
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Dated as of July 6, 2005
among
Psychiatric Solutions, Inc.,
The Subsidiary Guarantors from time to time party hereto, and
Citigroup Global Markets Inc.
Banc of America Securities LLC
Merrill, Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Exchange and Registration Rights Agreement (this "AGREEMENT")
is made and entered into as of July 6, 2005 by and among Psychiatric Solutions,
Inc., a Delaware corporation (the "COMPANY"), the Subsidiary Guarantors (as
defined herein) and Citigroup Global Markets Inc. on behalf of Banc of America
Securities LLC, Merrill, Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇.▇. ▇▇▇▇▇▇
Securities Inc. and ▇▇▇▇▇▇ Brothers Inc. (collectively, the "INITIAL
PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement, dated
June 30, 2005 (the "PURCHASE AGREEMENT"), by and among the Company, the Existing
Subsidiary Guarantors (as defined herein) and the Initial Purchasers, which
provides for the sale by the Company to the Initial Purchasers of $220,000,000
aggregate principal amount of the Company's 7-3/4% Senior Subordinated Notes due
2015 (the "NOTES"). The Notes are, and the Exchange Notes (as defined herein)
will be, guaranteed on a senior subordinated basis by the Subsidiary Guarantors
(as defined herein). In order to induce the Initial Purchasers to purchase the
Notes, the Company and the Existing Subsidiary Guarantors have agreed to provide
the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the obligations of the Initial Purchasers
set forth in Section 7 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
ADDITIONAL INTEREST: As defined in Section 5(a) hereof.
ADDITIONAL SUBSIDIARY GUARANTOR: Any subsidiary of the Company that
executes a Guarantee under the Indenture after the date of this Agreement.
ADVICE: As defined in Section 6(e) hereof.
AGREEMENT: As defined in the preamble hereto.
BLACKOUT PERIOD: As defined in Section 5(a) hereof.
BLUE SKY APPLICATION: As defined in Section 8(a) hereof.
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
CLOSING DATE: The date of this Agreement.
COMMISSION: The U.S. Securities and Exchange Commission.
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COMPANY: As defined in the preamble hereto.
CONSUMMATE: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i) the
filing and effectiveness under the Securities Act of the Exchange Offer
Registration Statement relating to the Exchange Notes to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the minimum period required pursuant to Section 3(b) hereof, and (iii) the
delivery by the Company to the Registrar under the Indenture of Exchange Notes
in the same aggregate principal amount as the aggregate principal amount of
Notes that were tendered by Holders thereof pursuant to the Exchange Offer.
DAMAGES PAYMENT DATE: With respect to the Notes, each Interest
Payment Date.
EFFECTIVENESS TARGET DATE: As defined in Section 5(a) hereof.
EXCHANGE ACT: The U.S. Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Company's 7-3/4% Senior Subordinated Notes due
2015 to be issued pursuant to the Indenture in the Exchange Offer, together with
the related Guarantees.
EXCHANGE OFFER: The registration by the Company under the Securities
Act of the Exchange Notes on a Registration Statement pursuant to which the
Company offers the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted Securities held
by such Holders for Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities validly
tendered in such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXISTING SUBSIDIARY GUARANTORS: The various Subsidiary Guarantors
signatory to the Indenture as of the date hereof.
GUARANTEES: Guarantees by the Subsidiary Guarantors of the Company's
obligations under the Notes, the Exchange Notes and the Indenture.
HOLDER: As defined in Section 2(b) hereof.
INDENTURE: The Indenture, dated as of the date hereof, among the
Company, the Existing Subsidiary Guarantors and Wachovia Bank, National
Association, as trustee (the "Trustee"), pursuant to which the Notes and the
Exchange Notes are to be issued, as such Indenture may be amended or
supplemented from time to time in accordance with the terms thereof.
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INITIAL PURCHASERS: As defined in the preamble hereto.
INTEREST PAYMENT DATE: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
NOTES: As defined in the preamble hereto.
PERSON: An individual, partnership, corporation, limited liability
company, unincorporated organization, association, joint-stock company, trust,
joint venture, government or any agency or political subdivision thereof or any
other entity.
PROSPECTUS: The prospectus included in a Registration Statement 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.
PURCHASE AGREEMENT: As defined in the preamble hereto.
RECORD HOLDER: With respect to any Damages Payment Date relating to
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
REGISTRATION DEFAULT: As defined in Section 5(a) hereof.
REGISTRATION STATEMENT: Any Registration Statement of the Company
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the provisions of
this Agreement, in each case including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
SECURITIES ACT: The U.S. Securities Act of 1933, as amended.
SHELF FILING DEADLINE: As defined in Section 4(a) hereof.
SHELF REGISTRATION PERIOD: As defined in Section 4(a) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4(a) hereof.
SUBSIDIARY GUARANTORS: The Additional Subsidiary Guarantors and the
Existing Subsidiary Guarantors.
TIA: The U.S. Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
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TRANSFER RESTRICTED SECURITIES: Each Note or Exchange Note
(including the related Guarantees), as applicable, until the earliest to occur
of (a) the date on which such Note is exchanged by a person other than a
Broker-Dealer in the Exchange Offer in exchange for an Exchange Note, so long as
such person is not prohibited from reselling such Exchange Notes to the public
without delivering a prospectus and the Prospectus contained in the Exchange
Offer Registration Statement is not sufficient for such purpose, (b) following
the exchange by a Broker-Dealer in the Exchange Offer of a Note for an Exchange
Note, the date on which that Exchange Note is sold to a purchaser who receives
from that Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus contained in the Exchange Offer Registration Statement, (c) the date
on which such Note has been effectively registered under the Securities Act and
disposed of in accordance with a Shelf Registration Statement and (d) the date
on which such Note is eligible to be distributed to the public pursuant to Rule
144 under the Securities Act.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "HOLDER") whenever such
Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with) or one of the events set forth in Section
4(a)(ii) has occurred, the Company and the Subsidiary Guarantors shall (i) cause
to be filed with the Commission as soon as practicable after the Closing Date,
but in no event later than 90 days after the Closing Date, a Registration
Statement under the Securities Act relating to the Exchange Notes and the
Exchange Offer, (ii) use their reasonable best efforts to cause such
Registration Statement to be declared effective on or prior to 180 days after
the Closing Date, (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be necessary in
order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary filings in
connection with the registration and qualification of the Exchange Notes to be
made under the blue sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The Exchange Offer shall be
on the appropriate form permitting registration of the Exchange Notes to be
offered in
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exchange for the Transfer Restricted Securities and to permit resales of
Exchange Notes held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Subsidiary Guarantors shall use their
reasonable best efforts to cause the Exchange Offer Registration Statement to be
effective continuously and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable U.S. federal and
state securities laws to Consummate the Exchange Offer; provided, however, that
in no event shall such period be less than 20 business days. The Company and the
Subsidiary Guarantors shall cause the Exchange Offer to comply with all
applicable U.S. federal and state securities laws. No securities other than the
Exchange Notes and the Guarantees shall be included in the Exchange Offer
Registration Statement. The Company and the Subsidiary Guarantors shall use
their reasonable best efforts to cause the Exchange Offer to be Consummated 30
business days after the date on which the Exchange Offer Registration Statement
was declared effective by the Commission.
(c) The Company and the Subsidiary Guarantors shall indicate in a
"Plan of Distribution" section of the Prospectus contained in the Exchange Offer
Registration Statement that any Broker-Dealer who holds Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed
to be an "underwriter" within the meaning of the Securities Act and must,
therefore, deliver a Prospectus meeting the requirements of the Securities Act
in connection with any resales of the Exchange Notes received by such
Broker-Dealer in the Exchange Offer, which Prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer
except to the extent required by the Commission.
The Company and the Subsidiary Guarantors shall use their reasonable
best efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for resales of
Exchange Notes acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of at least 90 days after the Consummation of the Exchange
Offer.
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The Company and the Subsidiary Guarantors shall provide sufficient
copies of the latest version of such Prospectus to Broker-Dealers promptly upon
request at any time during such 90-day period in order to facilitate such
resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Subsidiary
Guarantors are not required to file an Exchange Offer Registration Statement or
cannot Consummate the Exchange Offer because the Exchange Offer is not permitted
by applicable U.S. law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with) or (ii) any Holder of Transfer
Restricted Securities shall notify the Company prior to the 20th day following
the Consummation of the Exchange Offer that such Holder (A) is prohibited by
applicable U.S. law or Commission policy from participating in the Exchange
Offer, (B) may not resell the Exchange Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder or (C) is a Broker-Dealer and holds
Notes acquired directly from the Company or one of its affiliates, then the
Company and the Subsidiary Guarantors shall:
(x) use their reasonable best efforts to cause to be filed a
Registration Statement pursuant to Rule 415 under the Securities Act,
which may be an amendment to the Exchange Offer Registration Statement if
permitted by the rules and regulations of the Commission (in either event,
the "SHELF REGISTRATION STATEMENT") on or prior to the earliest to occur
of (1) the 30th day after the date on which the Company determines that
they are not required to file the Exchange Offer Registration Statement,
or permitted to Consummate the Exchange Offer and (2) the 30th day after
the date on which the Company receives notice from a Holder of Transfer
Restricted Securities as contemplated by clause (ii) of paragraph (a)
above (such earliest date being the "SHELF FILING DEADLINE"), which Shelf
Registration Statement shall provide for resales of all Transfer
Restricted Securities by the Holders which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) use their reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
before the 90th day after the Shelf Filing Deadline.
Subject to Section 5(b), the Company and the Subsidiary Guarantors shall use
their reasonable best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Notes or Exchange Notes by the Holders of Transfer
Restricted Securities entitled to the benefit of this Section 4(a), and to
ensure that it conforms with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as announced from
time to time, for a period of at least two years following the Closing Date or
such
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shorter period that will terminate when all Notes or Exchange Notes covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (such period being the "SHELF REGISTRATION PERIOD").
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf 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, such
information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein. No Holder of Transfer Restricted Securities shall be entitled to
Additional Interest pursuant to Section 5 hereof unless and until such Holder
shall have used its reasonable best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
SECTION 5. ADDITIONAL INTEREST
(a) If (i) any of the Registration Statements required by this
Agreement are not filed with the Commission on or prior to the date specified
for such filing in Sections 3(a) and 4(a), as applicable, (ii) any of such
required Registration Statements have not been declared effective by the
Commission on or prior to the date specified for such effectiveness in Sections
3(a) and 4(a), as applicable, (each, an "EFFECTIVENESS TARGET DATE"), (iii) the
Exchange Offer has not been Consummated within 30 business days, or longer, if
required by federal securities laws, after the Effectiveness Target Date with
respect to the Exchange Offer Registration Statement has been declared effective
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable in connection with resales of Transfer Restricted Securities without
being succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective (except as permitted in paragraph (b); such period of time during
which any such Registration Statement is not effective or any such Registration
Statement or the related Prospectus is not usable being referred to as a
"BLACKOUT PERIOD") (each such event referred to in clauses (i) through (iv), a
"REGISTRATION DEFAULT"), the Company and the Subsidiary Guarantors, jointly and
severally, agree to pay additional interest ("ADDITIONAL INTEREST") to each
Holder of Transfer Restricted Securities adversely affected by such Registration
Default, in an amount equal to $.05 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder with respect to the first
90-day period immediately following the occurrence of such Registration Default.
The amount of Additional Interest shall increase by an additional $.05 per week
per $1,000 principal amount of Transfer Restricted Securities with respect to
each subsequent 90-day period (or portion thereof) until all Registration
Defaults have been cured, up to a maximum amount of Additional Interest of $.50
per week per $1,000 principal amount of Transfer Restricted Securities.
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All accrued Additional Interest shall be paid to Record Holders by the Company
and the Subsidiary Guarantors in the same manner as interest is paid under the
Notes. Following the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, the accrual of Additional Interest
with respect to such Transfer Restricted Securities will cease.
(b) A Registration Default referred to in Section 5(a)(iv) shall be
deemed not to have occurred and be continuing in relation to a Registration
Statement or the related Prospectus if (i) the Blackout Period has occurred
solely as a result of (x) the filing of a post-effective amendment to such Shelf
Registration Statement to incorporate annual audited financial information with
respect to the Company where such post-effective amendment is not yet effective
and needs to be declared effective to permit Holders to use the related
Prospectus or (y) the occurrence of other material events with respect to the
Company that would need to be described in such Registration Statement or the
related Prospectus and (ii) in the case of clause (y), the Company is proceeding
promptly and in good faith to amend or supplement (including by way of filing
documents under the Exchange Act which are incorporated by reference into the
Registration Statement) such Registration Statement and the related Prospectus
to describe such events; provided, however, that in any case if such Blackout
Period occurs for a continuous period in excess of 30 days, a Registration
Default shall be deemed to have occurred on the 31st day of such Blackout Period
and Additional Interest shall be payable in accordance with the above paragraph
from the day such Registration Default occurs until such Registration Default is
cured or until the Company is no longer required pursuant to this Agreement to
keep such Registration Statement effective or such Registration Statement or the
related Prospectus usable; provided, further, that in no event shall the total
of all Blackout Periods exceed 45 days in the aggregate of any 12-month period.
All payment obligations of the Company and the Subsidiary Guarantors
set forth in this section that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such payment obligations with
respect to such security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Subsidiary Guarantors shall comply with all
of the provisions of Section 6(c) below, shall use their reasonable best efforts
to effect such exchange to permit the sale of Transfer Restricted Securities
being sold in accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the
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Consummation thereof, a written representation to the Company and the
Subsidiary Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the effect
that (A) it is not an affiliate of the Company, (B) it is not engaged in,
and does not intend to engage in, and has no arrangement or understanding
with any Person to participate in, a distribution of the Exchange Notes to
be issued in the Exchange Offer and (C) it is acquiring the Exchange Notes
in its ordinary course of business. In addition, all such Holders of
Transfer Restricted Securities shall otherwise cooperate in the Company's
and the Subsidiary Guarantors' preparations for the Exchange Offer. Each
Holder hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc.
(available June 5, 1991), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters, and
(2) must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with a secondary resale transaction
and that such a secondary resale transaction should be covered by an
effective Registration Statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K
if the resales are of Exchange Notes obtained by such Holder in exchange
for Notes acquired by such Holder directly from the Company.
(ii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Subsidiary Guarantors shall state to the
Commission that the Company and the Subsidiary Guarantors are registering
the Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13, 1988)
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and shall
represent to the Commission that neither the Company nor any Subsidiary
Guarantor has entered into any arrangement or understanding with any
Person to distribute the Exchange Notes to be received in the Exchange
Offer and that, to the best of the Company's and each Subsidiary
Guarantor's information and belief, each Holder participating in the
Exchange Offer is acquiring the Exchange Notes in its ordinary course of
business and has no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes received in the
Exchange Offer; and
(iii) The Company and the Subsidiary Guarantors shall issue,
upon the request of any Holder of Notes covered by the Exchange Offer,
Exchange Notes (including the related guarantees), having an aggregate
principal amount equal to the aggregate principal amount of Notes
surrendered to the Company by such Holder in exchange therefor; such
Exchange Notes (including the related guarantees) to be registered in the
name of such Holder or in the name of the purchaser(s) of such Exchange
Notes (including the related guarantees), as
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the case may be; in return, the Notes held by such Holder shall be
surrendered to the Company for cancellation.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Subsidiary Guarantors shall comply
with all the provisions of Section 6(c) below and shall use their reasonable
best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto the Company and the
Subsidiary Guarantors will as expeditiously as possible prepare and file with
the Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Notes and Exchange Notes by Broker-Dealers), the Company and the Subsidiary
Guarantors shall:
(i) use their reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Securities Act or any
regulation thereunder, financial statements of any Subsidiary Guarantors),
unless such financial statements are publicly available, for the period
specified in Sections 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such Registration Statement
or the Prospectus contained therein (A) to contain a material misstatement
or omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company and the Subsidiary Guarantors shall file promptly an appropriate
amendment to such Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of either
clause (A) or (B), use their reasonable best efforts to cause such
amendment to be declared effective and such Registration Statement and the
related Prospectus to become usable for their intended purpose(s) as soon
as practicable thereafter. Notwithstanding the foregoing, the Company and
the Subsidiary Guarantors may allow the Shelf Registration Statement to
cease to become effective and usable if (x) the board of directors of the
Company determines in good faith that it is in the best interests of the
Company not to disclose the existence of or facts surrounding any proposed
or pending material corporate transaction involving the Company or the
Subsidiary Guarantors, and the Company notifies the Holders within two
business days after such boards of directors make such determination or
(y) the Prospectus contained in the Shelf Registration Statement contains
an untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements made therein, in the light of
the circumstances under which they were made, not misleading; provided
that the two-year period referred to in Section 4(a) hereof
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during which the Shelf Registration Statement is required to be effective
and usable shall be extended by the number of days during which such
Registration Statement was not effective or usable pursuant to the
foregoing provisions; and provided further that Additional Interest shall
accrue on the Notes as provided in Section 5 hereof;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Sections 3 or 4 hereof, as applicable; cause the
Prospectus to be supplemented by any required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 under the Securities
Act, and to comply fully with the applicable provisions of Rules 424 and
430A under the Securities Act in a timely manner; and comply with the
provisions of the Securities 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;
(iii) cooperate with the selling Holders of Transfer
Restricted Securities and the underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends;
and enable such Transfer Restricted Securities to be in such denominations
and registered in such names as the Holders or the underwriter(s), if any,
may request at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(iv) use their reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities;
(v) if any fact or event contemplated by clause (d)(i)(D)
below shall exist or have occurred, 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 made therein, in the light of the circumstances under which
they were made, not misleading;
(vi) provide a CUSIP, CINS or ISIN number, as applicable, for
all Transfer Restricted Securities not later than the effective date of
the Registration Statement and provide the Trustee under the Indenture
with printed
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certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with the depositary;
(vii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any underwriter (including any "qualified independent underwriter") that
is required to be retained in accordance with the rules and regulations of
the NASD;
(viii) otherwise use their reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to their security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing at
the end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm or best efforts Underwritten Offering or
(B) if not sold to underwriters in such an offering, beginning with the
first month of the Company's first fiscal quarter commencing after the
effective date of the Registration Statement;
(ix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement required
by this Agreement, and, in connection therewith, cooperate with the
Trustee and the Holders of Notes and Exchange Notes to effect such changes
to the Indenture as may be required for such Indenture to be so qualified
in accordance with the terms of the TIA; and execute, and use their
reasonable best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(x) provide promptly to any Holder upon such Holder's written
request each document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act to the
extent such documents are not otherwise filed with the Commission and
available to the public free of cost.
(d) Additional Provisions Applicable to Shelf Registration
Statements. In connection with each Shelf Registration Statement, during the
Shelf Registration Period, the Company and the Subsidiary Guarantors shall:
(i) advise the underwriter(s), if any, and selling Holders of
Transfer Restricted Securities promptly and, if requested by such Persons,
to confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to the Shelf 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 Shelf 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
13
Registration Statement under the Securities Act, of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction or of the
initiation of any proceeding for any of the preceding purposes and (D) of
the existence of any fact or the happening of any event that requires the
making of any additions to or changes in the Shelf Registration Statement
or the Prospectus in order that the Shelf Registration Statement and the
Prospectus do not contain an untrue statement of a material fact or omit
to state a material fact necessary to make the statements made 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 Shelf Registration Statement, or any U.S. state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under U.S. state securities or blue sky
laws, the Company and the Subsidiary Guarantors shall use their reasonable
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(ii) if requested in writing, furnish to each of the selling
Holders of Transfer Restricted Securities and each of the underwriter(s),
if any, before filing with the Commission, copies of any Shelf
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Shelf Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Shelf Registration Statement), which documents will
be subject to the review of such Holders and underwriter(s), if any, for a
period of at least five business days, and the Company and the Subsidiary
Guarantors will not file any such Shelf Registration Statement or
Prospectus or any amendment or supplement to any such Shelf Registration
Statement or Prospectus (including all such documents incorporated by
reference) if a selling Holder of Transfer Restricted Securities covered
by such Shelf Registration Statement or the underwriter(s), if any, shall
not have had an opportunity to review the Shelf Registration Statement as
set forth above; such Holders and underwriter(s) shall be deemed to have
reasonably objected to such filing if such Shelf 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 Securities Act;
(iii) promptly prior to the filing of any document that is to
be incorporated by reference into a Shelf Registration Statement or
Prospectus, provide copies of such document to the selling Holders and to
the underwriter(s), if any, make the Company's and the Subsidiary
Guarantors' representatives available for discussion of such document and
other customary due diligence matters, and include such information in
such document prior to the filing thereof
14
as such selling Holders or underwriter(s), if any, reasonably may request
in writing;
(iv) make available for inspection at reasonable times at each
of the Company's principal places of business by the selling Holders of
Transfer Restricted Securities, any underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and any
attorney or accountant retained by such selling Holders or any of the
underwriter(s) who shall certify to the Company and the Subsidiary
Guarantors that they have a current intention to sell Transfer Restricted
Securities pursuant to a Shelf Registration Statement, such relevant
financial and other records, pertinent corporate documents and properties
of the Company and the Subsidiary Guarantors as reasonably requested and
cause the Company's and the Subsidiary Guarantors' officers, directors and
employees to respond to such inquiries as shall be reasonably necessary,
in the reasonable judgment of counsel to such Holders, to conduct a
reasonable investigation; provided, however, that the foregoing inspection
and information gathering shall be coordinated on behalf of the selling
Holders by one counsel designated by and on behalf of such Holders and,
provided, further, that each such party shall be required to maintain in
confidence and not disclose to any other Person any information or records
reasonably designated by the Company in writing as being confidential,
until such time as (A) such information becomes a matter of public record
(whether by virtue of its inclusion in such Shelf Registration Statement
or otherwise), (B) such Person shall be required so to disclose such
information pursuant to a subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter (subject
to the requirements of such order, and only after such Person shall have
given the Company prompt prior written notice of such requirement) or (C)
such information is required to be set forth in such Shelf Registration
Statement or the Prospectus included therein or in an amendment to such
Shelf Registration Statement or an amendment or supplement to such
Prospectus in order that such Shelf Registration Statement, Prospectus,
amendment or supplement, as the case may be, does not contain an untrue
statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements made
therein not misleading;
(v) if requested by any selling Holders of Transfer Restricted
Securities or the underwriter(s), if any, promptly incorporate in any
Shelf Registration Statement or Prospectus pursuant to a supplement or
post-effective amendment if necessary, such information as such selling
Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to
the "Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required
filings of
15
such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, however, that the Company shall not be required to take any
action pursuant to this Section 6(d)(v) that would, in the opinion of
counsel for the Company reasonably satisfactory to the Initial Purchasers,
violate applicable law;
(vi) deliver to each selling Holder of Transfer Restricted
Securities and each of the underwriter(s), if any, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) and any
amendment or supplement thereto as such Persons reasonably may request;
the Company and the Subsidiary Guarantors hereby consent to the use of the
Prospectus and any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection with the
offering and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(vii) furnish to each Holder whose Transfer Restricted
Securities have been included in a Shelf Registration Statement in
connection with such exchange or sale, 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 (including exhibits incorporated therein by
reference) to the extent such documents are not otherwise filed with the
Commission and available to the public free of cost;
(viii) enter into an underwriting agreement on not more than
one occasion in the case of an offering pursuant to a Shelf Registration,
and make such representations and warranties, and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such extent
as may be reasonably requested by any Holder or Holders of Transfer
Restricted Securities who hold at least 25% in aggregate principal amount
of such class of Transfer Restricted Securities; provided that the Company
and the Subsidiary Guarantors shall not be required to enter into any such
agreement more than once with respect to all of the Transfer Restricted
Securities and may delay entering into such agreement if the board of
directors of each of the Company and the Subsidiary Guarantors determines
in good faith that it is in the best interests of the Company and the
Subsidiary Guarantors not to disclose the existence of or facts
surrounding any proposed or pending material corporate transaction
involving the Company and the Subsidiary Guarantors; and in connection
with an Underwritten Registration, the Company and the Subsidiary
Guarantors shall:
(A) furnish to the Initial Purchasers, the Holders of
Transfer Restricted Securities who hold at least 25% in aggregate
principal amount of such class of Transfer Restricted Securities and each
underwriter, if
16
any, in such substance and scope as they may reasonably request and as are
customarily made in connection with an offering of debt securities
pursuant to a Shelf Registration Statement upon the effective date of the
Shelf Registration Statement (and if such Shelf Registration Statement
contemplates an Underwritten Offering of Transfer Restricted Securities
upon the date of the closing under the underwriting agreement related
thereto):
(1) a certificate, dated the date of effectiveness of
the Shelf Registration Statement signed by (y) the respective chief
executive officer, the respective President or any Vice President
and (z) the respective chief financial officer of each of the
Company and each of the Subsidiary Guarantors confirming, as of the
date thereof, the matters set forth in Section 7(l) of the Purchase
Agreement and such other matters as such parties may reasonably
request;
(2) an opinion, dated the date of effectiveness of such
Shelf Registration Statement, of securities counsel for the Company
covering matters similar to those set forth in Section 7(c) of the
Purchase Agreement and such other matters as such parties may
reasonably request, and in any event including a statement to the
effect that such counsel has participated in conferences with
officers and other representatives of the Company, representatives
of the independent public accountants for the Company, the Initial
Purchasers' representatives and the Initial Purchasers' counsel in
connection with the preparation of such Shelf Registration Statement
and the related Prospectus although such counsel has not
independently verified the accuracy, completeness or fairness of
such statements in such Shelf Registration Statement; and that such
counsel advises that, on the basis of the foregoing, such counsel's
work in connection with this work did not disclose information that
gave such counsel reason to believe that the Shelf Registration
Statement, at the time such Shelf Registration Statement or any
post-effective amendment thereto became effective contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus contained
in such Shelf Registration Statement as of its date contained an
untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not
misleading. Such counsel may state further that such counsel
expresses no view with respect to, and has not independently
verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules, the financial projections and other
financial, statistical and accounting data included or incorporated
by reference in the Shelf Registration Statement contemplated by
this Agreement or the related Prospectus; and
17
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement from the Company's
independent accountants, in the customary form and covering matters
of the type customarily covered in comfort letters to underwriters
in connection with primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered pursuant to
Sections 7(e) and 7(f) of the Purchase Agreement;
(B) set forth in full or incorporated by reference in
the underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may
be reasonably requested by such parties to evidence compliance with clause
(A) above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company and the
Subsidiary Guarantors pursuant to this clause (viii), if any.
If at any time during the Shelf Registration Period the representations and
warranties of the Company or the Subsidiary Guarantors contemplated in clause
(A)(1) above cease to be true and correct, the Company or the Subsidiary
Guarantors shall so advise the Initial Purchasers and the underwriters, if any,
and each selling Holder promptly and, if requested by such Persons, shall
confirm such advice in writing; and
(ix) prior to any public offering of Transfer Restricted
Securities cooperate with the selling Holders of Transfer Restricted
Securities the underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or blue sky laws of such
jurisdictions as the selling Holders of Transfer Restricted Securities or
underwriter(s) may reasonably request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement filed pursuant to Section 4 hereof; provided,
however, that the Company and the Subsidiary Guarantors shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which
they are not now so qualified or to take any action that would subject
them to general consent to service of process, other than as to matters
and transactions relating to the Shelf Registration Statement, in any
jurisdiction where they are not now so subject.
(e) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in Section 6(d)(i) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the Shelf Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(d)(vi) hereof,
or until it is advised in writing (the "Advice")
18
by the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Shelf Registration Statement set
forth in Section 4 hereof, as applicable, shall be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to Section 6(d)(i) hereof to and including the date when each selling
Holder covered by such Shelf Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
6(d)(vi) hereof or shall have received the Advice.
(f) The Company and the Subsidiary Guarantors may require each
Holder of Transfer Restricted Securities as to which any registration is being
effected to furnish to the Company such information regarding such Holder and
such Holder's intended method of distribution of the applicable Transfer
Restricted Securities as the Company may from time to time reasonably request in
writing, but only to the extent that such information is required in order to
comply with the Securities Act. Each such Holder agrees to notify the Company as
promptly as practicable of (i) any inaccuracy or change in information
previously furnished by such Holder to the Company or (ii) the occurrence of any
event, in either case, as a result of which any Prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such Holder or such Holder's intended method of distribution of the
applicable Transfer Restricted Securities or omits to state any material fact
regarding such Holder or such Holder's intended method of distribution of the
applicable Transfer Restricted Securities required to be stated therein or
necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading and promptly to furnish to the
Company any additional information required to correct and update any previously
furnished information or required so that such Prospectus shall not contain,
with respect to such Holder or the distribution of the applicable Transfer
Restricted Securities an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Subsidiary
Guarantors' performance of or compliance with this Agreement will be borne by
the Company regardless of whether a Registration Statement becomes effective,
including without limitation and as applicable: (i) all Commission, securities
exchange or NASD registration and filing fees and expenses (including filings
made by any Initial Purchasers or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent underwriter" and its counsel
that may be required by the rules and regulations of the NASD)); (ii) all fees
and expenses of compliance with U.S. federal securities and state blue sky or
securities laws and compliance with the rules of the
19
NASD (including reasonable fees and disbursements of one counsel for Holders in
connection with blue sky and/or NASD qualification of the Exchange Notes); (iii)
all expenses of printing (including printing certificates for the Exchange Notes
to be issued in the Exchange Offer and printing of Prospectuses), messenger and
delivery services; (iv) all fees and disbursements of counsel for the Company
and the Subsidiary Guarantors; (v) 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)
and (vi) the reasonable fees and disbursements of one counsel designated by the
Holders of a majority in principal amount of Transfer Restricted Securities
covered by the Shelf Registration Statement to act as counsel for the Holders of
those Transfer Restricted Securities in connection therewith.
The Company will, in any event, bear its and the Subsidiary
Guarantors' 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 or the Subsidiary Guarantors.
(b) Each Holder of Transfer Restricted Securities will pay all
underwriting discounts and commissions, if any, and agency fees, commissions and
transfer taxes, if any, relating to the disposition of such Holder's Transfer
Restricted Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such Holder, other than the counsel and experts
specifically referred to in clause (a) above.
SECTION 8. INDEMNIFICATION
(a) The Company and each Subsidiary Guarantor shall, jointly and
severally, indemnify and hold harmless each Holder of Transfer Restricted
Securities, its officers and employees and each Person, if any, who controls any
such Holders, within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases, sales and registration of the Notes (including the
related Guarantees) and the Exchange Notes (including the related Guarantees)),
to which that Holder, officer, employee or controlling Person may become
subject, under the Securities Act 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 (A) in any
Registration Statement or preliminary Prospectus or Prospectus or in any
amendment or supplement thereto, (B) in any Blue Sky Application (as defined
below) or other document prepared or executed by any Company or any Subsidiary
Guarantor (or based upon any written information furnished by any Company or any
Subsidiary Guarantor) specifically for the purpose of qualifying any or all of
the Notes under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application") or (C) in any materials or information provided to investors by,
or with the approval of, the Company in connection with the marketing of the
offering of the
20
Exchange Notes ("Marketing Materials"), including any roadshow or investor
presentations made to investors by the Company (whether in person or
electronically); (ii) the omission or alleged omission to state in any
Registration Statement, preliminary Prospectus or Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky Application or Marketing
Materials any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, or (iii) any act or failure to act or any alleged act or
failure to act by any Holder of Transfer Restricted Securities in connection
with, or relating in any manner to, the Notes, the Guarantees or the Exchange
Notes or the offering contemplated by any Registration Statement, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company and the Subsidiary Guarantors shall not be liable
under this clause (iii) to the extent that it is determined in a final judgment
by a court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Holder through its gross negligence or willful
misconduct); and shall reimburse each Holder and each such officer, employee or
controlling Person promptly upon demand for any legal or other expenses
reasonably incurred by that Holder, officer, employee or controlling Person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company and the Subsidiary 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, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Registration Statement, preliminary Prospectus or Prospectus, or in any such
amendment or supplement, or in any Blue Sky Application or Marketing Materials,
in reliance upon and in conformity with written information concerning such
Holder furnished to the Company by or on behalf of any Holder specifically for
inclusion therein; provided, further, that with respect to any such untrue
statement or omission made in any preliminary Prospectus or Prospectus, the
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of the Holder from whom the Person asserting any such losses, claims,
damages or liabilities purchased the Notes, Guarantees or Exchange Notes
concerned if, to the extent that such sale was a sale by the Holder and any such
loss, claim, damage or liability of such Holder is a result of the fact that
both (A) a copy of the Prospectus (or the Prospectus as then amended or
supplemented) was not sent or given to such Person at or prior to written
confirmation of the sale of such Notes or Exchange Notes to such Person and (B)
the untrue statement or omission in the preliminary Prospectus or Prospectus was
corrected in the Prospectus (or the Prospectus as then amended or supplemented)
unless such failure to deliver the Prospectus was a result of noncompliance by
the Company with Section 6(d)(vi) hereof. The foregoing indemnity agreement is
in addition to any liability which the Company and the Subsidiary Guarantors may
otherwise have to any Holder or to any officer, employee or controlling Person
of that Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless each of the Company, each of the Subsidiary Guarantors, their
respective
21
directors, officers and employees, and each Person, if any, who controls either
of the Company or any of the Subsidiary Guarantors within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company, the Subsidiary
Guarantors or any such director, officer or controlling Person may become
subject, under the Securities Act 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 (A) in any
Registration Statement, preliminary Prospectus or Prospectus, or in any
amendment or supplement thereto or (B) in any Blue Sky Application or (ii) the
omission or alleged omission to state in any Registration Statement, preliminary
Prospectus or Prospectus, or in any amendment or supplement thereto, or in any
Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein 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 written
information concerning such Holders furnished to the Company by or on behalf of
that Holder specifically for inclusion therein, and shall reimburse the Company,
each of the Subsidiary Guarantors and each such director, officer, employee and
controlling Person for any legal or other expenses reasonably incurred by the
Company, each such Subsidiary Guarantor or each such director, officer, employee
or controlling Person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Holder may otherwise have to the Company, any of the
Subsidiary Guarantors or any such director, officer, employee or controlling
Person.
(c) Promptly after receipt by an indemnified party under this
Section 8 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 under this Section 8, 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 8 except to the extent it has
been materially prejudiced 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 8.
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 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 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of the
22
indemnified party unless (i) the employment of such counsel has been
specifically authorized by the indemnifying party in writing, or (ii) such
indemnified party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel or
(iii) the indemnifying party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the indemnified party, in which case,
if such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to local counsel) at any
time for all such indemnified parties, which firm shall be designated in writing
by (x) Citigroup Global Markets Inc. if the indemnified parties under this
Section 8 consist of the Initial Purchasers or any of their respective officers,
employees or controlling Persons or (y) by the Company, if the indemnified
parties under this Section 8 consist of any of the Company, any of the
Subsidiary Guarantors or any of their respective directors, officers, employees
or controlling Persons. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or (ii) 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 the consent of
the indemnifying party or if there be a final judgment of 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.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, 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 Subsidiary Guarantors, on the one hand, and the
Holders on the other, from the sale of the Transfer Restricted Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Subsidiary Guarantors, on the one hand and the Holders on
the other with respect to the statements or omissions which
23
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or any of the Subsidiary Guarantors, on
the one hand, or the Holders, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Subsidiary Guarantors and
the Holders agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be 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 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 shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no Holder
shall be required to contribute any amount in excess of the amount by which the
net proceeds received by it in connection with its sale of Notes exceeds the
amount of any damages which such Holder has otherwise paid or become liable to
pay by reason of the 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. The Holders'
obligations to contribute as provided in this Section 8(d) are several and not
joint.
SECTION 9. RULE 144A
The Company and each Subsidiary Guarantor hereby agrees with each
Holder of Transfer Restricted Securities, during any period in which the Company
or such Subsidiary Guarantor is not subject to Section 13 or 15(d) of the
Exchange Act within the two-year period following the Closing Date, to make
available to any Holder or beneficial owner of Transfer Restricted Securities,
in connection with any sale thereof and any prospective purchaser of such
Transfer Restricted Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
24
Subject to Section 6(d)(i), the Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering at such
Holders' expense. In any such 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
the Transfer Restricted Securities included in such offering; provided that such
investment bankers and managers must be reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company and the Subsidiary Guarantors agree that
monetary damages (including Additional Interest) would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any
Subsidiary Guarantor will, 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. Except as disclosed in the Offering Memorandum (as such term
is defined in the Purchase Agreement), neither the Company nor any Subsidiary
Guarantor has previously entered into any agreement granting any registration
rights with respect to its securities to any Person. 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 or any Subsidiary Guarantor's
securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company and the Subsidiary
Guarantors will not take any action, or permit any change to occur, with respect
to the Notes that would materially and adversely affect the ability of the
Holders to Consummate any Exchange Offer.
(d) 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 the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
the Transfer Restricted Securities affected by such amendment, modification,
supplement, waiver or consent. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
25
(e) 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, facsimile or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
if to the Company or the Subsidiary Guarantors to:
Psychiatric Solutions, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, PLLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any such notices and communications shall take effect at the time of
receipt thereof. The Company shall be entitled to act and rely upon any notice
or communication given or made by the Initial Purchasers.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) 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, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.
(g) 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.
26
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED, IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(j) 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.
(k) Entire Agreement. This Agreement together with the other
Transaction Documents (as defined in the Purchase 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 by the Company and the
Subsidiary Guarantors with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
[Signature pages follow.]
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PSYCHIATRIC SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Development Officer
GUARANTORS:
PSYCHIATRIC SOLUTIONS HOSPITALS, INC.
INFOSCRIBER CORPORATION
COLLABORATIVE CARE CORPORATION
PSYCHIATRIC SOLUTIONS OF ALABAMA, INC.
PSYCHIATRIC SOLUTIONS OF TENNESSEE, INC.
SOLUTIONS CENTER OF LITTLE ROCK, INC.
PSYCHIATRIC SOLUTIONS OF NORTH CAROLINA, INC.
PSI COMMUNITY MENTAL HEALTH AGENCY MANAGEMENT, INC.
PSYCHIATRIC MANAGEMENT RESOURCES, INC.
PSI-EAP, INC.
SUNSTONE BEHAVIORAL HEALTH, INC.
THE COUNSELING CENTER OF MIDDLE TENNESSEE, INC.
PSI CEDAR SPRINGS HOSPITAL, INC.
PSYCHIATRIC SOLUTIONS OF OKLAHOMA, INC.
AERIES HEALTHCARE CORPORATION
AERIES HEALTHCARE OF ILLINOIS, INC.
PSI HOSPITALS, INC.
PSYCHIATRIC PRACTICE MANAGEMENT OF ARKANSAS, INC.
BOUNTIFUL PSYCHIATRIC HOSPITAL, INC.
EAST CAROLINA PSYCHIATRIC SERVICES CORPORATION
GREAT PLAINS HOSPITAL, INC.
GULF COAST TREATMENT CENTER, INC.
HAVENWYCK HOSPITAL INC.
H.C. CORPORATION
HSA HILL CREST CORPORATION
HSA OF OKLAHOMA, INC.
MICHIGAN PSYCHIATRIC SERVICES, INC.
RAMSAY MANAGED CARE, INC.
RAMSAY TREATMENT SERVICES, INC.
PREMIER BEHAVIORAL SOLUTIONS, INC.
PREMIER BEHAVIORAL SOLUTIONS OF ALABAMA, INC.
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
PREMIER BEHAVIORAL SOLUTIONS OF FLORIDA, INC.
RAMSAY YOUTH SERVICES OF GEORGIA, INC.
RAMSAY YOUTH SERVICES PUERTO RICO, INC.
PSYCHIATRIC SOLUTIONS OF SOUTH CAROLINA, INC.
RHCI SAN ANTONIO, INC.
TRANSITIONAL CARE VENTURES, INC.
TRANSITIONAL CARE VENTURES (TEXAS), INC.
BRENTWOOD ACQUISITION, INC.
BRENTWOOD ACQUISITION-SHREVEPORT, INC.
CANYON RIDGE HOSPITAL, INC.
LAURELWOOD CENTER, INC.
PEAK BEHAVIORAL HEALTH SERVICES, INC.
PSI PRIDE INSTITUTE, INC.
PSI SUMMIT HOSPITAL, INC.
PSYCHIATRIC SOLUTIONS OF ARIZONA, INC.
PSYCHIATRIC SOLUTIONS OF LEESBURG, INC.
PSYCHIATRIC SOLUTIONS OF VIRGINIA, INC.
TUCSON HEALTH SYSTEMS, INC.
WHISPER RIDGE OF STAUNTON, INC.
FORT LAUDERDALE HOSPITAL, INC.
▇▇▇▇▇▇▇▇▇ HOLDINGS, INC.
ARDENT HEALTH SERVICES, INC.
BEHAVIORAL HEALTHCARE CORPORATION
BHC ALHAMBRA HOSPITAL, INC.
BHC BELMONT PINES HOSPITAL, INC.
BHC CEDAR CREST RTC, INC.
BHC CEDAR VISTA HOSPITAL, INC.
BHC CLINICAS DEL ESTE HOSPITAL, INC.
BHC COLUMBUS HOSPITAL, INC.
BHC FAIRFAX HOSPITAL, INC.
BHC FORT LAUDERDALE HOSPITAL, INC.
BHC FOX RUN HOSPITAL, INC.
BHC FREMONT HOSPITAL, INC.
BHC GULF COAST MANAGEMENT GROUP, INC.
BHC HEALTH SERVICES OF NEVADA, INC.
BHC HERITAGE OAKS HOSPITAL, INC.
BHC HOSPITAL HOLDINGS, INC.
BHC INTERMOUNTAIN HOSPITAL, INC.
BHC LEBANON HOSPITAL, INC.
BHC MANAGEMENT HOLDINGS, INC.
BHC MILLWOOD HOSPITAL, INC.
BHC MONTEVISTA HOSPITAL, INC.
BHC OF NORTHERN INDIANA, INC.
BHC PACIFIC GATEWAY HOSPITAL, INC.
BHC PACIFIC SHORES HOSPITAL, INC.
BHC PACIFIC VIEW RTC, INC.
BHC PINNACLE POINTE HOSPITAL, INC.
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
BHC PROPERTIES, INC.
BHC ▇▇▇▇ HOSPITAL, INC.
BHC SAN ▇▇▇▇ CAPESTRANO HOSPITAL, INC.
BHC SIERRA VISTA HOSPITAL, INC.
BHC SPIRIT OF ST. LOUIS HOSPITAL, INC.
BHC STREAMWOOD HOSPITAL, INC.
BHC ▇▇▇▇▇ VISTA HOSPITAL, INC.
BHC VISTA DEL MAR HOSPITAL, INC.
BHC WINDSOR HOSPITAL, INC.
COMMUNITY PSYCHIATRIC CENTERS OF TEXAS, INC.
INDIANA PSYCHIATRIC INSTITUTES, INC.
MESILLA VALLEY HOSPITAL, INC.
MESILLA VALLEY MENTAL HEALTH ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THERAPEUTIC SCHOOL SERVICES, LLC
PSI TEXAS HOSPITALS, LLC
▇▇▇▇▇▇▇▇▇ REGIONAL HOSPITAL ACQUISITION, LLC
PSI CROSSINGS, LLC
PALMETTO BEHAVIORAL HEALTH SYSTEM, L.L.C
PALMETTO LOWCOUNTRY BEHAVIORAL HEALTH, L.L.C.
PALMETTO PEE DEE BEHAVIORAL HEALTH, L.L.C.
AHS CUMBERLAND HOSPITAL, LLC
BHC CANYON RIDGE HOSPITAL, LLC
BHC MANAGEMENT SERVICES, LLC
BHC MANAGEMENT SERVICES OF INDIANA, LLC
BHC MANAGEMENT SERVICES OF KENTUCKY, LLC
BHC MANAGEMENT SERVICES OF LOUISIANA, LLC
BHC MANAGEMENT SERVICES OF NEW MEXICO, LLC
BHC MANAGEMENT SERVICES OF PENNSYLVANIA, LLC
BHC MANAGEMENT SERVICES OF STREAMWOOD, LLC
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
BHC MANAGEMENT SERVICES OF TULSA, LLC
BHC MESILLA VALLEY HOSPITAL, LLC (F/K/A
BHC NEWCO 1, LLC)
BHC NEWCO 2, LLC
BHC NEWCO 3, LLC
BHC NEWCO 4, LLC
BHC NEWCO 5, LLC
BHC NEWCO 6, LLC
BHC NEWCO 7, LLC
BHC NEWCO 8, LLC
BHC NEWCO 9, LLC
BHC NEWCO 10, LLC
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC
BHC PHYSICIAN SERVICES OF KENTUCKY, LLC
COLUMBUS HOSPITAL , LLC
LEBANON HOSPITAL, LLC
NORTHERN INDIANA HOSPITAL, LLC
▇▇▇▇▇ VISTA, LLC
WILLOW SPRINGS, LLC
RED ROCK SOLUTIONS, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
H.C. PARTNERSHIP
BY: H.C. CORPORATION, AS GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BY: HSA HILL CREST CORPORATION, AS GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
MILLWOOD HOSPITAL, L.P.
TEXAS CYPRESS CREEK HOSPITAL, L.P.
TEXAS WEST OAKS HOSPITAL, L.P.
NEURO INSTITUTE OF AUSTIN, L.P.
TEXAS ▇▇▇▇▇▇ ▇▇▇▇▇ HOSPITAL, L.P.
TEXAS OAKS PSYCHIATRIC HOSPITAL, L.P.
TEXAS SAN MARCOS TREATMENT CENTER, L.P.
BY: PSI TEXAS HOSPITALS, LLC, AS GENERAL PARTNER
BY: PSYCHIATRIC SOLUTIONS HOSPITAL, INC., AS SOLE
MEMBER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
BHC OF INDIANA GENERAL PARTNERSHIP
BY: BHC COLUMBUS HOSPITAL, INC.
BHC LEBANON HOSPITAL, INC.
BHC OF NORTHERN INDIANA, INC.
BHC ▇▇▇▇▇ VISTA HOSPITAL, INC., ITS PARTNERS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BLOOMINGTON ▇▇▇▇▇▇▇, ▇.▇.
BY: BHC OF INDIANA GENERAL PARTNERSHIP, ITS PARTNER
BY: BHC COLUMBUS HOSPITAL, INC.
BHC LEBANON HOSPITAL, INC.
BHC OF NORTHERN INDIANA, INC.
BHC ▇▇▇▇▇ VISTA HOSPITAL, INC., ITS PARTNERS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BY: INDIANA PSYCHIATRIC INSTITUTES, INC., ITS
PARTNER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
MESILLA VALLEY GENERAL PARTNERSHIP
BY: MESILLA VALLEY HOSPITAL, INC.
MESILLA VALLEY MENTAL HEALTH ASSOCIATES,
INC., ITS PARTNERS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
Accepted:
CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
---------------------------------
Authorized Representative
For itself and the other Several Initial
Purchasers named in Schedule I to the
Purchase Agreement