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Document Preview Registration Rights Agreement |
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Title: |
Registration Rights Agreement |
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Entities: |
J.P. Morgan Securities Inc.; Manor Care, Inc.; Mid Shore Physical Therapy Associates Inc; National City Bank; UBS Warburg LLC |
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Date: |
2003 |
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Size: |
Preview shows 24KB of 106KB total |
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Price: |
$50 |
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ID: |
#2357094 |
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MANOR CARE, INC.
2.125% Convertible Senior Notes Due 2023
Registration Rights Agreement
April 15, 2003
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center--North Tower
250 Vesey Street
New York, New York 10281
UBS Warburg LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
Manor Care, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to J.P. Morgan Securities Inc. ("JPMorgan") Merrill
Lynch, Pierce, Fenner & Smith Incorporated and UBS Warburg LLC (together with
JPMorgan, the "Initial Purchasers"), upon the terms and subject to the
conditions set forth in a purchase agreement dated April 10, 2003 (the "Purchase
Agreement"), $90,000,000 aggregate principal amount (up to $100,000,000
aggregate principal amount in the event the overallotment option contained in
the Purchase Agreement is exercised in full) of its 2.125% Convertible Senior
Notes due 2023 (the "Notes") to be jointly and severally guaranteed (the
"Guarantees") by the subsidiaries of the Company listed on Schedule 1 and
signatories hereto (collectively, the "Guarantors"). Capitalized terms used but
not defined herein shall have the meanings given to such terms in the Purchase
Agreement.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Company and the Guarantors agree with the
Initial Purchasers, for the
{PAGE}
benefit of the holders (including the Initial Purchasers) of the Notes and the
Shares (as defined below) (collectively, the "Holders"), as follows:
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following meanings:
(a) "Additional Amounts" has the meaning assigned thereto
in Section 2(d).
(b) "Additional Amounts Payment Date" has the meaning
assigned thereto in Section 2(d).
(c) "Agreement" means this Registration Rights Agreement,
as the same may be amended from time to time pursuant to the terms
hereof.
(d) "Applicable Conversion Price" means, as of any date
of determination, the Conversion Price in effect as of such date of
determination.
(e) "Closing Date" means the date on which the Notes are
initially issued.
(f) "Commission" means the Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute
for the particular purpose.
(g) "Company" has the meaning specified in the first
paragraph of this Agreement.
(h) "Conversion Price" shall have the meaning assigned
such term in the Indenture.
(i) "Deferral Notice" has the meaning assigned thereto in
Section 3(b).
(j) "Deferral Period" has the meaning assigned thereto in
Section 3(b).
(k) "Effective Period" has the meaning assigned thereto
in Section 2(a).
(l) "Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
(m) "Guarantees" has the meaning specified in the first
paragraph of this Agreement.
2
{PAGE}
(n) "Holder" means each holder, from time to time, of
Registrable Securities (including the Initial Purchasers).
(o) "Indenture" means the Indenture dated as of April 15,
2003, among the Company, the Guarantors and National City Bank, as
Trustee pursuant to which the Notes and the Guarantees are being
issued.
(p) "Initial Placement" means the initial placement of
the Notes pursuant to the terms of the Purchase Agreement.
(q) "Initial Purchasers" has the meaning specified in the
first paragraph of this Agreement.
(r) "Losses" has the meaning assigned thereto in Section
6(d).
(s) "Material Event" has the meaning assigned thereto in
Section 3(a)(iv).
(t) "Majority Holders" shall mean, on any date, holders
of the majority of the Shares constituting Registrable Securities; for
the purposes of this definition, Holders of Notes constituting
Registrable Securities shall be deemed to be the Holders of the number
of Shares into which such Notes are or would be convertible as of such
date.
(u) "NASD" shall mean the National Association of
Securities Dealers, Inc.
(v) "NASD Rules" shall mean the Conduct Rules and the
By-Laws of the NASD.
(w) "Notes" means the 2.125% Convertible Senior Notes Due
2023, to be issued under the Indenture and sold by the Company to the
Initial Purchasers.
(x) "Notice and Questionnaire" means a written notice
delivered to the Company containing substantially the information
called for by the Form of Selling Securityholder Notice and
Questionnaire attached as Annex A to the Offering Memorandum.
(y) "Notice Holder" means, on any date, any Holder that
has delivered a Notice and Questionnaire to the Company on or prior to
such date.
(z) "Offering Memorandum" means the Offering Memorandum
dated April 10, 2003 relating to the offer and sale of the Securities.
(aa) "Person" means a corporation, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
3
{PAGE}
(bb) "Prospectus" means the prospectus included in any
Shelf Registration Statement, as amended or supplemented by any
amendment or prospectus supplement, including post-effective
amendments, and all materials incorporated by reference or explicitly
deemed to be incorporated by reference in such Prospectus.
(cc) "Purchase Agreement" has the meaning specified in the
first paragraph of this Agreement.
(dd) "Registrable Securities" means the Securities;
provided, however, that such Securities shall cease to be Registrable
Securities when (i) in the circumstances contemplated by Section 2(a),
a registration statement registering such Securities under the
Securities Act has been declared or becomes effective and such
Securities have been sold or otherwise transferred by the Holder
thereof pursuant to such effective registration statement; (ii) such
Securities are sold pursuant to Rule 144 under circumstances in which
any legend borne by such Securities relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is
removed or such Securities are eligible to be sold pursuant to Rule
144(k) or any successor provision; or (iii) such Securities shall cease
to be outstanding (including, in the case of the Notes, upon conversion
into Shares).
(ee) "Registration Default" has the meaning assigned
thereto in Section 2(d).
(ff) "Registration Expenses" has the meaning assigned
thereto in Section 5.
(gg) "Rule 144," "Rule 405" and "Rule 415" means, in each
case, such rule as promulgated under the Securities Act.
(hh) "Securities" means, collectively, the Notes and the
Shares.
(ii) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(jj) "Shares" means the shares of common stock of the
Company, par value $0.01 per share, into which the Notes are
convertible or that have been issued upon any conversion from Notes
into common stock of the Company.
(kk) "Shelf Registration Statement" means the shelf
registration statement referred to in Section 2(a), as amended or
supplemented by any amendment or supplement, including post-effective
amendments, and all materials incorporated by reference or explicitly
deemed to be incorporated by reference in such Shelf Registration
Statement.
4
{PAGE}
(ll) "Special Counsel" shall have the meaning assigned
thereto in Section 5.
(mm) "Trust Indenture Act" means the Trust Indenture Act
of 1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
(nn) "Trustee" shall have the meaning assigned such term
in the Indenture.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. Registration Under the Securities Act.
(a) The Company and the Guarantors agree to file under
the Securities Act as promptly as practicable but in any event within
90 days after the Closing Date a shelf registration statement providing
for the registration of, and the sale on a continuous or delayed basis
by the Holders of, all of the Registrable Securities, pursuant to Rule
415 or any similar rule that may be adopted by the Commission. The
Company and the Guarantors agree to use their reasonable efforts to
cause the Shelf Registration Statement to become or be declared
effective within 150 days after the Closing Date and to keep such Shelf
Registration Statement continuously effective until the earlier of (i)
the second anniversary of the Closing Date or (ii) such time as there
are no longer any Registrable Securities outstanding (the "Effective
Period"). None of the Company's securityholders or the Guarantors'
securityholders (other than Holders of Registrable Securities) shall
have the right to include any of the Company's securities or the
Guarantors' securities in the Shelf Registration Statement.
(b) The Company and the Guarantors further agree that
they shall cause the Shelf Registration Statement and the related
Prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement or such amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act; and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading, and the
Company and the Guarantors agree to furnish to the Holders of the
Registrable Securities copies of any
5
{PAGE}
supplement or amendment prior to its being used or promptly following
its filing with the Commission; provided, however, that the Company
shall have no obligation to deliver to Holders of Registrable
Securities copies of any amendment consisting exclusively of an
Exchange Act report or other Exchange Act filing otherwise publicly
available on the Company's website. If the Shelf Registration
Statement, as amended or supplemented from time to time, ceases to be
effective for any reason at any time during the Effective Period (other
than because all Registrable Securities registered thereunder shall
have been sold pursuant thereto or shall have otherwise ceased to be
Registrable Securities), the Company and the Guarantors shall use their
reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof.
(c) Each Holder of Registrable Securities agrees that if
such Holder wishes to sell Registrable Securities pursuant to the Shelf
Registration Statement and related Prospectus, it will do so only in
accordance with this Section 2(c) and Section 3(b). Each Holder of
Registrable Securities wishing to sell Registrable Securities pursuant
to the Shelf Registration Statement and related Prospectus agrees to
deliver a Notice and Questionnaire to the Company at least three (3)
Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration Statement. From and after the
date the Shelf Registration Statement is declared effective, the
Company and the Guarantors shall, as promptly as is practicable after
the date a Notice and Questionnaire is delivered, and in any event
within five (5) Business Days after such date,
(i) if required by applicable law, file with the
Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by
applicable law, file a supplement to the related Prospectus or
a supplement or amendment to any document incorporated therein
by reference or file any other required document so that the
Holder delivering such Notice and Questionnaire is named as a
selling security holder in the Shelf Registration Statement
and the related Prospectus in such a manner as to permit such
Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and,
if the Company and the Guarantors shall file a post-effective
amendment to the Shelf Registration Statement, use their
reasonable efforts to cause such post-effective amendment to
be declared effective under the Securities Act as promptly as
is practicable;
(ii) provide such Holder copies of any documents
filed pursuant to Section 2(c)(i); and
(iii) notify such Holder as promptly as
practicable after the effectiveness under the Securities Act
of any post-effective amendment filed pursuant to Section
2(c)(i);
6
{PAGE}
provided that if such Notice and Questionnaire is delivered during a
Deferral Period, the Company shall so inform the Holder delivering such
Notice and Questionnaire and shall take the actions set forth in
clauses (i), (ii) and (iii) above upon expiration of the Deferral
Period in accordance with Section 3(b). Notwithstanding anything
contained herein to the contrary, the Company and the Guarantors shall
be under no obligation to name any Holder that is not a Notice Holder
as a selling securityholder in any Shelf Registration Statement or
related Prospectus; provided, however, that any Holder that becomes a
Notice Holder pursuant to the provisions of this Section 2(c) (whether
or not such Holder was a Notice Holder at the time the Shelf
Registration Statement was declared effective) shall be named as a
selling securityholder in the Shelf Registration Statement or related
Prospectus in accordance with the requirements of this Section 2(c).
(d) If any of the following events (any such event a
"Registration Default") shall occur, then liquidated damages (the
"Additional Amounts") shall become payable jointly and severally by the
Company and the Guarantors to Holders in respect of the Securities as
follows:
(i) if the Shelf Registration Statement is not
filed with the Commission within 90 days following the Closing
Date, then commencing on the 91st day after the Closing Date,
Additional Amounts shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities and on the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities at a rate of 0.25% per annum for the
first 90 days following such 91st day and at a rate of 0.5%
per annum thereafter; or
(ii) if the Shelf Registration Statement is not
declared effective by the Commission within 150 days following
the Closing Date, then commencing on the 151st day after the
Closing Date, Additional Amounts shall accrue on the principal
amount of the outstanding Notes that are Registrable
Securities and on the Applicable Conversion Price of any
outstanding Shares that are Registrable Securities at a rate
of 0.25% per annum for the first 90 days following such 151st
day and at a rate of 0.5% per annum thereafter; or
(iii) if the Company or the Guarantors have failed
to perform their obligations set forth in Section 2(c) hereof
within the time periods required therein, then commencing on
the first day after the date by which the Company and the
Guarantors were required to perform such obligations,
Additional Amounts shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities and on the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities at a rate of 0.25% per annum for the
first 90 days and at a rate of 0.5% per annum thereafter;
7
{PAGE}
(iv) if the Shelf Registration Statement has been
declared effective but such Shelf Registration Statement
ceases to be effective at any time during the Effective Period
(other than pursuant to Section 3(b) hereof), then commencing
on the day such Shelf Registration Statement ceases to be
effective, Additional Amounts shall accrue on the principal
amount of the outstanding Notes that are Registrable
Securities and on the Applicable Conversion Price of any
outstanding Shares that are Registrable Securities at a rate
of 0.25% per annum for the first 90 days following such date
on which the Shelf Registration Statement ceases to be
effective and at a rate of 0.5% per annum thereafter; or
(v) if the aggregate duration of Deferral
Periods in any period exceeds the number of days permitted in
respect of such period pursuant to Section 3(b) hereof, then
commencing on the day the aggregate duration of Deferral
Periods in any period exceeds the number of days permitted in
respect of such period (and again on the first day of any
subsequent Deferral Period during such period), Additional
Amounts shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities and on the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities at a rate of 0.25% per annum for the
first 90 days and at a rate of 0.5% per annum thereafter;
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