General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 20 56K
2: EX-1 Underwriting Agreement 1 6K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 12 39K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 9 26K
5: EX-4 Instrument Defining the Rights of Security Holders 2 10K
EX-3 — Articles of Incorporation/Organization or By-Laws
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EXHIBIT 3
ARTICLE II
REGISTRATION RIGHTS
Section 1. DEMAND REGISTRATIONS. (a) At any time from the
Distribution Date through the fifteenth anniversary thereof, upon the written
request of NME that New Hillhaven register all or part of the Covered Common
Stock then held by NME or any affiliate of NME (which request shall satisfy the
requirements of paragraph (c) of this Section 1) under the Act, New Hillhaven
shall, subject in all cases to the provisions of paragraph (b) of this Section
1, thereupon cause the Covered Common Stock specified in such request to be so
registered.
(b) New Hillhaven's obligation to register all or part of the Covered
Common Stock pursuant to paragraph (a) of this Section 1 shall in all cases be
subject to the following limitations and qualifications:
(i) New Hillhaven shall not be obligated to file more than one
registration statement during any six-month period, or to file a
registration statement with respect to less than 100,000 shares of Covered
Common Stock, or to file a registration statement at any time if a special
audit of New Hillhaven would be required by the rules and regulations of
the Securities and Exchange Commission (the "Commission") in connection
therewith (for purposes of the preceding sentence, "special audit" shall
mean an audit other than a fiscal year-end audit, requiring an opinion of
New Hillhaven's independent public accountants); and
(ii) New Hillhaven shall be entitled to postpone for a
reasonable period of time not to exceed 90 days the filing of any
registration statement otherwise required to be prepared and filed by it
if, at the time it receives a request for registration, New Hillhaven
determines, in its reasonable judgment, that such registration would
materially interfere with any financing, acquisition, corporate
reorganization or other material transaction then being contemplated by its
Board of Directors, involving New Hillhaven or any of its affiliates (other
than NME), and promptly gives NME written notice of such determination and
the reasons therefor. In such event, NME shall have the right to withdraw
the request for registration by giving written notice to New Hillhaven
within 30 days after receipt of the notice of postponement (and, in the
event of such withdrawal, such request shall be
ignored for purposes of determining the number of registrations to which
NME is entitled to have New Hillhaven pay all out-of-pocket expenses
pursuant to Section 4(a)).
(c) Any written request of NME made pursuant to paragraph (a) of this
Section 1 shall:
(i) specify the number of shares of Covered Common Stock which
NME or any affiliate of NME intends to offer and sell;
(ii) state the intention of NME or such affiliate to offer such
shares for sale;
(iii) describe the intended method of distribution of such
shares; and
(iv) contain an undertaking on the part of NME to provide all
such information and materials concerning NME or such affiliate and take
all such action as may be required on NME's part to permit New Hillhaven to
comply with all applicable requirements of the Commission and to obtain
acceleration of the effective date of the registration statement.
Section 2. PARTICIPATION REGISTRATIONS. (a) If, at any time from the
Distribution Date through the fifteenth anniversary thereof, New Hillhaven shall
propose to register under the Act an offering by New Hillhaven or any
stockholder(s) of New Hillhaven (other than NME) of any New Hillhaven
securities, it shall give written notice of such proposed registration to NME as
promptly as possible and shall, subject in all cases to paragraph (b) of this
Section 2, include in such registration (and offering if so requested by NME)
such number of shares of Covered Common Stock then owned by NME or any affiliate
of NME as NME shall request, within 10 days after the receipt of such notice.
(b) New Hillhaven's obligation to include Covered Common Stock owned by
NME or any affiliate of NME in any offering pursuant to paragraph (a) of this
Section 2 shall in all cases be subject to the following limitations and
qualifications:
(i) New Hillhaven shall not be required to give notice to NME
or include such shares in any such registration if the proposed
registration is (A) a registration of a stock option or compensation plan
or of New Hillhaven securities issued or issuable pursuant to any such plan
or (B) a registration of New Hillhaven securities proposed to be issued in
exchange for
securities or assets of, or in connection with a merger or consolidation
with, another corporation;
(ii) New Hillhaven may, in its sole discretion and without the
consent of NME, withdraw such registration statement and abandon the
proposed offering in which NME had requested to participate; and
(iii) If the proposed registration is to be underwritten
(whether on a "best efforts" or a "firm commitment" basis), the managing
underwriter shall have the right to exclude shares of Covered Common Stock
from such registration if such underwriter advises New Hillhaven in writing
that such exclusion is necessary to avoid interfering with the successful
marketing of the underwritten portion of the offering, PROVIDED THAT (A)
such exclusion applies on a proportional basis not only to the shares of
Covered Common Stock but also to all other shares of New Hillhaven Common
Stock proposed to be included other than those for which New Hillhaven
initiated the registration and which are being sold by New Hillhaven and
(B) in no event shall any shares of Covered Common Stock be excluded if,
following such exclusion, the number of shares of Covered Common Stock
included in the registration would be less than 10% of the total number of
shares of New Hillhaven Common Stock covered by the registration.
(c) There shall be no limit on the number of registrations in which NME or
any affiliates of NME may participate pursuant to Section 2.
Section 3. CERTAIN COVENANTS OF NEW HILLHAVEN. (a) In connection
with any registration of Covered Common Stock undertaken by New Hillhaven
pursuant to Section 1 and, if and to the extent appropriate, Section 2, New
Hillhaven shall:
(i) prepare and file with the Commission a registration
statement with respect to such shares and use its best efforts to cause
such registration statement to become effective;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement current for such period not to exceed 90 days as NME shall
request and to comply with the provisions of the Act with respect to the
sale of all New Hillhaven Common Stock covered by such registration
statement during such period;
(iii) provide NME and its counsel a reasonable opportunity to
review and, in the case of registrations effected pursuant to Section 1,
approve prior to filing (A) any registration statement filed by New
Hillhaven in connection with a registration effected pursuant to Section 1
or in which NME or any affiliate is participating pursuant to Section 2 and
(B) any amendments or supplements to such registration statement and any
prospectus used in connection therewith;
(iv) furnish to NME and its counsel such number of conformed
copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of
copies of the prospectus included in such registration statement (including
each preliminary prospectus and prospectus supplement), in conformity with
the requirements of the Act, and such other documents as NME or its counsel
may reasonably request in order to facilitate the sale of the Covered
Common Stock covered by such registration statement;
(v) use its best efforts to register or qualify the Covered
Common Stock to which such registration statement relates under such other
securities or blue sky laws of such jurisdictions as NME or its counsel
shall reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable NME to consummate the
sale in such jurisdictions of such shares; PROVIDED that New Hillhaven
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would not
but for the requirements of this paragraph (v) be obligated to be so
qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;
(vi) notify NME, at any time when a prospectus relating to the
Covered Common Stock to which such registration statement relates is
required to be delivered under the Securities Act, of New Hillhaven's
becoming aware that the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances
then existing, and at the request of NME promptly prepare and furnish to
NME a reasonable number of copies of a prospectus supplemented or amended
so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not
include 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 in light of the circumstances then existing;
(vii) use its best efforts to cause all the Covered Common Stock
to which such registration statement relates to be listed on each
securities exchange on which such stock is then listed or, if there shall
then be no such listing, to be accepted for quotation on NASDAQ;
(viii) provide a transfer agent and registrar for the Covered
Common Stock to which such registration statement relates not later than
the effective date of such registration statement; and
(ix) enter into such agreements (including an underwriting
agreement in customary form) and take such other actions as NME reasonably
requests in order to expedite or facilitate the disposition of such shares;
PROVIDED that (A) in respect of a registration effected pursuant to Section
1, New Hillhaven and NME shall each select one managing underwriter (with
NME determining which of such managing underwriters shall "run the books")
and (B) in respect of a registration in which NME or any affiliate
participates pursuant to Section 2, New Hillhaven shall select the managing
underwriter or underwriters.
(b) For as long as NME or any affiliate of NME shall continue to hold
any Covered Common Stock, New Hillhaven shall use reasonable efforts to file, on
a timely basis, all annual, quarterly and other reports required to be filed by
it under Sections 13 and 15(d) of the Securities Exchange Act of 1934 and the
rules and regulations of the Commission thereunder, as amended from time to
time. In the event of any proposed sale of Covered Common Stock by NME or any
affiliate of NME pursuant to Rule 144 (or any successor rule) promulgated under
the Act, New Hillhaven shall cooperate with NME or such affiliate so as to
enable such sales to be made in accordance with applicable laws, rules and
regulations, the requirements of New Hillhaven's transfer agents, and the
reasonable requirements of the broker through which the sales are proposed to be
executed.
Section 4. EXPENSES. (a) New Hillhaven shall pay all out-of-pocket
expenses incurred by it in connection with any three registrations of Covered
Common Stock pursuant to Section 1 which are designated by NME as a registration
with respect to which New Hillhaven's obli-
gations in this sentence shall apply. As to any other registrations of Covered
Common Stock pursuant to Section 1, NME or any transferee of Warrants from NME
shall reimburse New Hillhaven for all its out-of-pocket expenses in connection
therewith. For the purposes of this Section 4, out-of-pocket expenses shall
include, without limitation, all registration and filing fees, printing expenses
and expenses, fees and disbursements of New Hillhaven's legal counsel and
accountants, transfer agents' and registrars' fees, and expenses incidental to
any post-effective amendment to any such registration statement. For purposes
of this Section 4, "out-of-pocket expenses" shall not include salaries of New
Hillhaven employees or expenses attributable to New Hillhaven's corporate
overhead.
(b) In connection with any registration pursuant to Section 2, New
Hillhaven shall pay all registration and filing fees, underwriting discounts,
commissions and expenses (other than those attributable to Covered Common Stock
proposed to be sold by NME or any affiliate of NME), printing expenses, fees and
disbursements of New Hillhaven's legal counsel and accountants, transfer agents'
and registrars' fees and expenses incidental to any post-effective amendment to
any such registration statement. NME shall pay all other out-of-pocket expenses
attributable to the inclusion in the registration of the Covered Common Stock
being registered on its behalf, including, without limitation, registration and
filing fees and underwriting discounts, commissions and expenses attributable
thereto and fees and disbursements of NME's legal counsel and accountants.
Section 5. INDEMNIFICATION. (a) In the case of each registration
effected by New Hillhaven pursuant to Section 1 or Section 2, New Hillhaven
agrees to indemnify and hold harmless NME, its affiliates, its officers and
directors, each underwriter of the Covered Common Stock so registered and each
person who controls any such underwriter within the meaning of Section 15 of the
Act, against any and all losses, claims, damages or liabilities to which they or
any of them may become subject under the Act or any other statute or common law,
including any amount paid in settlement of any litigation, commenced or
threatened, if such settlement is effected with the written consent of New
Hillhaven, which consent shall not be unreasonably withheld, and to reimburse
them for any legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as any such losses,
claims, damages, liabilities or actions arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in the
registration statement relating to the sale of Covered Common Stock, or
any post-effective amendment thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus, if
used prior to the effective date of such registration statement, or contained in
the final prospectus (as amended or supplemented if Hillhaven shall have filed
with the Commission any amendment thereof or supplement thereto) if used within
the period during which New Hillhaven is required to keep the registration
statement to which such prospectus relates current pursuant to the terms of
Section 3(a)(ii), or the omission or alleged omission to state therein (if so
used) a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the indemnification agreement contained in this paragraph (a)
shall not (x) apply to such losses, claims, damages, liabilities or actions
arising out of, or based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to New Hillhaven by NME or such underwriter for use in connection
with the preparation of the registration statement, any preliminary prospectus
or final prospectus contained in the registration statement, or any amendment or
supplement thereto, or (y) inure to the benefit of any underwriter or any person
controlling such underwriter, if such underwriter failed to send or give a copy
of the final prospectus to the person asserting the claim at or prior to the
written confirmation of the sale of Covered Common Stock to such person and if
the untrue statement or omission concerned had been corrected in such final
prospectus.
(b) In the case of each registration effected by New Hillhaven
pursuant to Section 1 or Section 2, NME, any affiliate of NME participating in
any such registration and each underwriter of the Covered Common Stock to be
registered (each such party and such underwriters being referred to severally in
this paragraph (b) as the "indemnifying party") shall agree in the same manner
and to the same extent as set forth in paragraph (a) of this Section 5 to
indemnify and hold harmless New Hillhaven, each person who controls Hillhaven,
the directors of New Hillhaven and those of its officers who shall have signed
any such registration statement, with respect to any untrue statement or alleged
untrue statement in, or omission or alleged omission from, such registration
statement or any post-effective amendment thereto or any preliminary prospectus
or final prospectus (as amended or as
supplemented, if amended or supplemented as aforesaid) contained in such
registration statement, if such statement or omission was made in reliance upon
and in conformity with information furnished to New Hillhaven by such
indemnifying party for use in connection with the preparation of such
registration statement or any preliminary prospectus or final prospectus
contained in such registration statement or any such amendment or supplement
thereto.
(c) Each indemnified party shall, with reasonable promptness after
its receipt of written notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought from an
indemnifying party on account of an indemnity agreement contained in this
Section 5, notify the indemnifying party in writing of the commencement thereof.
In case any such action shall be brought against any indemnified party and it
shall so notify an indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; PROVIDED, HOWEVER, if the defendants in any such action
include both the indemnified party and the indemnifying and the indemnified
party shall have reasonably concluded that there are likely to be substantial
legal defenses available to it and/or the other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and the approval of such counsel, the indemnifying
party shall (except as provided in the preceding sentence) not be liable to such
indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. The indemnity agreements
in this Section 5 shall be in addition to any liabilities which the indemnifying
parties may have pursuant to law.
Section 6. MODIFICATION OF CERTAIN REGISTRATION RIGHTS. If NME shall
transfer to any entity other than in a public offering all or any part of (i)
the Covered Common Stock or (ii) the Warrants, the transferee of such Covered
Common Stock and/or Warrants shall be entitled to the same registration rights
as NME is entitled to under this Agreement unless the number of shares of New
Hillhaven Common Stock held by such transferee, or the number of
shares of New Hillhaven Common Stock issuable upon the exercise of Warrants held
by such transferee, is less than 100,000 shares; PROVIDED, HOWEVER, that New
Hillhaven shall not be obligated to effect in the aggregate more than three
registrations pursuant to Section 1 without reimbursement for its out-of-pocket
expenses.
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