As filed with the Securities and Exchange Commission on
September 21, 2009
Registration No. 333-152514
SECURITIES AND EXCHANGE
COMMISSION
Washington, DC 20549
Amendment No. 9
to
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
SELECT MEDICAL HOLDINGS
CORPORATION
(Exact name of registrant as
specified in its charter)
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Delaware
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8060
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20-1764048
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(State or Other Jurisdiction
of Incorporation or Organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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4714 Gettysburg Road
Mechanicsburg, Pennsylvania 17055
(717) 972-1100
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Michael E. Tarvin, Esq.
Executive Vice President, General Counsel and Secretary
4714 Gettysburg Road
P.O. Box 2034
Mechanicsburg, Pennsylvania 17055
(717) 972-1100
(Name, address including zip
code, and telephone number, including area code, of agent for
service)
With copies to:
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Stephen M. Leitzell, Esq.
Dechert LLP
Cira Centre
2929 Arch Street
Philadelphia, Pennsylvania 19104
(215) 994-4000
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Richard D. Truesdell, Jr., Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
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Approximate date of commencement of proposed sale to the
public:
As soon as practicable after the
effective date of this Registration Statement.
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933 check the
following
box:
o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
þ
(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of
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Amount to be
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Offering Price
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Aggregate Offering
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Amount of
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Securities to be Registered
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Registered(1)
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Per Share(2)
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Price(1)(2)
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Registration Fee(3)
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Common Stock, par value $0.001 per share
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38,333,333
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$
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13.00
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$
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498,333,329
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$
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27,807
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(1)
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Including shares of common stock
which may be purchased by the underwriters to cover
over-allotments, if any.
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(2)
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Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(a)
under the Securities Act of 1933, as amended.
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(3)
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The registration fee has been
previously paid.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
Due to printer error, Amendment No. 8 to the Registration
Statement on Form
S-1
of
Select Medical Holdings Corporation (Amendment No.
8) was filed on September 18, 2009 with incorrect
information in the Calculation of Registration Fee
section of the facing sheet of Amendment No. 8, and the
Exhibit Index and Item 16. Exhibits and
Financial Statement Schedules sections in Part II of
Amendment No. 8. This Amendment No. 9 to the Registration
Statement on Form S-1 of Select Medical Holdings Corporation is
intended to solely correct that printer error and replace
Amendment No. 8 in its entirety.
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 13.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth the costs and expenses, other
than the underwriting discount, payable by the registrant in
connection with the sale of the common stock being registered.
All amounts shown are estimates, other than the SEC registration
fee, the FINRA filing fee and the New York Stock Exchange
listing fee.
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SEC registration fee
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$
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30,435
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FINRA filing fee
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58,000
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New York Stock Exchange listing fee
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250,000
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Accounting fees and expenses
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400,000
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Legal fees and expenses
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1,940,000
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Printing and engraving expenses
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470,000
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Transfer agent fees
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5,000
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Miscellaneous
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146,565
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Total
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$
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3,300,000
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Item 14.
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Indemnification
of Directors and Officers.
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Section 145 of the Delaware General Corporation Law (the
DGCL) provides that a corporation may indemnify any
person who is or was a director, officer, employee or agent of a
corporation against expenses (including attorneys fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any
threatened, pending or completed actions, suits or proceedings
in which such person is made a party by reason of such person
being or having been a director, officer, employee of or agent
to the corporation. The statute provides that it is not
exclusive of other rights to which those seeking indemnification
may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
As permitted by the DGCL, our restated certificate of
incorporation includes a provision that eliminates the personal
liability of our directors for monetary damages for breach of
fiduciary duty as a director, except for liability (1) for
any breach of the directors duty of loyalty to us or our
stockholders; (2) for acts or omissions not in good faith
or that involve intentional misconduct or a knowing violation of
the law; (3) under Section 174 of the DGCL regarding
unlawful dividends and stock purchases; or (4) arising as a
result of any transaction from which the director derived an
improper personal benefit.
As permitted by the DGCL, our amended and restated bylaws
provide that (i) we are required to indemnify our directors
and officers to the fullest extent permitted by applicable law;
(ii) we are permitted to indemnify our other employees to
the extent permitted by applicable statutory law; (iii) we
are required to advance expenses to our directors and officers
in connection with any legal proceeding, subject to the
provisions of applicable statutory law; and (iv) the rights
conferred in our bylaws are not exclusive.
Section 145 of the DGCL also authorizes a corporation to
purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation
against any liability asserted against and incurred by such
person in any such capacity, or arising out of such
persons status as such. We expect to obtain liability
insurance covering our directors and officers for claims
asserted against them or incurred by them in such capacity.
Reference is made to the form of underwriting agreement filed as
Exhibit 1.1 hereto for provisions providing that the
underwriters are obligated under certain circumstances, to
indemnify our directors, officers and controlling persons
against certain liabilities, including liabilities under the
Securities Act of 1933, as amended (the Securities
Act).
Reference is made to Item 17 for our undertakings with
respect to indemnification for liabilities arising under the
Securities Act.
II-1
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Item 15.
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Recent
Sales of Unregistered Securities.
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Except as set forth below, in the three years preceding the
filing of this registration statement, we have not issued any
securities that were not registered under the Securities Act.
1. From February 15, 2006 through March 3, 2009,
we granted to our employees and medical directors options to
purchase an aggregate of 1,134,866 shares of our common
stock under our 2005 Equity Incentive Plan at exercise prices
ranging from $3.33 to $10.00 per share. The stock options
described above were made under written compensatory plans or
agreements in reliance on the exemption from registration
pursuant to Rule 701 under the Securities Act or pursuant
to Section 4(2) of the Securities Act.
2. From August 10, 2005 through August 12, 2009,
we granted to our non-employee directors options to purchase an
aggregate of 63,000 shares of our common stock under our
2005 Equity Incentive Plan for
Non-Employee
Directors at exercise prices ranging from $3.33 to $10.00 per
share. The stock options described above were made under written
compensatory plans or agreements in reliance on the exemption
from registration pursuant to Rule 701 under the Securities
Act or pursuant to Section 4(2) of the Securities Act.
3. From May 14, 2007 through June 24, 2009, we
sold and issued to our employees an aggregate of
47,000 shares of our common stock pursuant to option
exercises under our 2005 Equity Incentive Plan at prices ranging
from $3.33 to $8.33 per share for an aggregate purchase price of
$180,666. The issuance of common stock described above was made
under written compensatory plans or agreements in reliance on
the exemption from registration pursuant to Rule 701 under
the Securities Act or pursuant to Section 4(2) of the
Securities Act.
4. From July 22, 2005 through August 12, 2009, we
awarded to our employees an aggregate of 3,311,607 shares
of our restricted common stock under our 2005 Equity Incentive
Plan. The awards of restricted common stock described above were
made under written compensatory plans or agreements in reliance
on the exemption from registration pursuant to Rule 701
under the Securities Act or pursuant to Section 4(2) of the
Securities Act.
5. On February 13, 2007, we granted to an employee
60,000 shares of our restricted common stock under our 2005
Equity Incentive Plan at a purchase price of $3.33 per share for
an aggregate purchase price of $200,000. The grant of restricted
common stock described above was made under written compensatory
plans or agreements in reliance on the exemption from
registration pursuant to Rule 701 under the Securities Act
or pursuant to Section 4(2) of the Securities Act.
6. On July 31, 2005, we issued and sold to our
directors an aggregate of 108,000 shares of common stock at
a purchase price of $3.33 per share for an aggregate purchase
price of $360,000. We also issued and sold to our directors an
aggregate of 53,531.60 shares of preferred stock at a
purchase price of $26.90 per share for an aggregate purchase
price of $1,440,000. The issuance of common and preferred stock
described above was made in reliance on the exemption from
registration pursuant to Section 4(2) of the Securities Act
and Regulation D promulgated thereunder.
None of the foregoing transactions involved any underwriters,
underwriting discounts or commissions, or any public offering.
The recipients of securities in such transactions represented
their intention to acquire the securities for investment only
and not with a view to or for sale in connection with any
distribution thereof, and appropriate legends were affixed to
the share certificates and instruments issued in such
transactions. All recipients either received adequate
information about us or had adequate access, through their
relationships with us, to such information.
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Item 16.
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Exhibits
and Financial Statement Schedules.
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(a)
Exhibits
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Exhibit
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Number
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Document
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1
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.1
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Form of Underwriting Agreement.
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II-2
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Exhibit
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Number
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Document
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2
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.1
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Stock Purchase Agreement, dated as of January 27, 2007,
between HealthSouth Corporation and Select Medical Corporation,
incorporated by reference to Exhibit 2.1 of Select Medical
Corporations Current Report on Form 8-K filed January 30,
2007 (Reg. No. 001-31441).
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2
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.2
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Letter Agreement, dated as of May 1, 2007, between
HealthSouth Corporation and Select Medical Corporation,
incorporated by reference to Exhibit 2.2 of Select Medical
Corporations Current Report on Form 8-K filed May 7, 2007
(Reg. No. 001-31441).
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2
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.3
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Acquisition Agreement, dated as of December 23, 2005,
between Select Medical Corporation, SLMC Finance Corporation and
Callisto Capital L.P., incorporated by reference to Exhibit 2.1
of Select Medical Corporations Current Report on Form 8-K
filed December 28, 2005 (Reg. No. 001-31441).
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2
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.4
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Amendment to Acquisition Agreement, dated as of February 9,
2006, among Select Medical Corporation, SLMC Finance
Corporation, Callisto Capital L.P. and Canadian Back Institute
Limited, incorporated by reference to Exhibit 2.1 of Select
Medical Corporations Current Report on Form 8-K filed
February 10, 2006 (Reg. No. 001-31441).
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3
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.3
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Form of Restated Certificate of Incorporation of Select Medical
Holdings Corporation.
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3
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.4
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Form of Amended and Restated Bylaws of Select Medical Holdings
Corporation.
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4
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.1
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Registration Rights Agreement, dated as of February 24, 2005,
among Select Medical Holdings Corporation, Welsh, Carson,
Anderson & Stowe IX, L.P., WCAS Capital Partners IV, L.P.,
each of the entities and individuals listed on Schedule I
thereto and each of the other entities and individuals from time
to time listed on Schedule II thereto, incorporated by
reference to Exhibit 10.77 of Select Medical Holdings
Corporations Form S-4 filed April 13, 2006 (Reg. No.
333-133284).
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5
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.1
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Opinion of Dechert LLP.
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10
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.1
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Credit Agreement, dated as of February 24, 2005, among Select
Medical Holdings Corporation, Select Medical Corporation, as
Borrower, the Lenders party thereto, JPMorgan Chase Bank, N.A.,
as Administrative Agent and Collateral Agent, Wachovia Bank,
National Association, as Syndication Agent and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and CIBC Inc., as
Co-Documentation Agents, incorporated by reference to Exhibit
10.1 of Select Medical Corporations Form S-4 filed June
16, 2005 (Reg. No. 333-125846).
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10
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.2
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Guarantee and Collateral Agreement, dated as of February 24,
2005, among Select Medical Holdings Corporation, Select Medical
Corporation, the Subsidiaries of Select Medical Corporation
identified therein and JPMorgan Chase Bank, N.A., as Collateral
Agent, incorporated by reference to Exhibit 10.2 of Select
Medical Corporations Form S-4 filed June 16, 2005 (Reg.
No. 333-125846).
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10
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.3
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Amended and Restated Senior Management Agreement, dated as of
May 7, 1997, between Select Medical Corporation, John Ortenzio,
Martin Ortenzio, Select Investments II, Select Partners, L.P.
and Rocco Ortenzio, incorporated by reference to Exhibit 10.34
of Select Medical Corporations Registration Statement on
Form S-1 filed October 27, 2000 (Reg. No. 333-48856).
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10
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.4
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Amendment No. 1, dated as of January 1, 2000, to Amended and
Restated Senior Management Agreement, dated as of May 7, 1997,
between Select Medical Corporation and Rocco A. Ortenzio,
incorporated by reference to Exhibit 10.35 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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10
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.5
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Employment Agreement, dated as of March 1, 2000, between Select
Medical Corporation and Rocco A. Ortenzio,
incorporated by reference to Exhibit 10.16 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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10
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.6
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Amendment No. 1 to Employment Agreement, dated as of August
8, 2000, between Select Medical Corporation and Rocco A.
Ortenzio, incorporated by reference to Exhibit 10.17 of Select
Medical Corporations Registration Statement on Form S-1
filed October 27, 2000 (Reg. No. 333-48856).
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10
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.7
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Amendment No. 2 to Employment Agreement, dated as of February
23, 2001, between Select Medical Corporation and Rocco A.
Ortenzio, incorporated by reference to Exhibit 10.47 of Select
Medical Corporations Registration Statement on Form S-1
March 30, 2001 (Reg. No. 333-48856).
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II-3
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Exhibit
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Number
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Document
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10
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.8
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Amendment No. 3 to Employment Agreement, dated as of April 24,
2001, between Select Medical Corporation and Rocco A. Ortenzio,
incorporated by reference to Exhibit 10.50 of Select Medical
Corporations Registration Statement on Form S-4 filed
June 26, 2001 (Reg. No. 333-63828).
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10
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.9
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Amendment No. 4 to Employment Agreement, dated as of September
17, 2001, between Select Medical Corporation and Rocco A.
Ortenzio, incorporated by reference to Exhibit 10.52 of Select
Medical Corporations Annual Report on Form 10-K for the
fiscal year ended December 31, 2001
(Reg. No. 000-32499).
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10
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.10
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Amendment No. 5 to Employment Agreement, dated as of February
24, 2005, between Select Medical Corporation and Rocco A.
Ortenzio, incorporated by reference to Exhibit 10.10 of Select
Medical Corporations Form S-4 filed June 16, 2005
(Reg. No. 333-125846).
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10
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.11**
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Restricted Stock Award Agreement, dated as of February 24,
2005, between Select Medical Holdings Corporation and Rocco A.
Ortenzio.
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10
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.12**
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Restricted Stock Award Agreement, dated as of November 8,
2005, between Select Medical Holdings Corporation and Rocco A.
Ortenzio.
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10
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.13
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Employment Agreement, dated as of March 1, 2000, between Select
Medical Corporation and Robert A. Ortenzio,
incorporated by reference to Exhibit 10.14 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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10
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.14
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Amendment No. 1 to Employment Agreement, dated as of August
8, 2000, between Select Medical Corporation and Robert A.
Ortenzio, incorporated by reference to Exhibit 10.15 of Select
Medical Corporations Registration Statement on Form S-1
filed October 27, 2000 (Reg. No. 333-48856).
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10
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.15
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Amendment No. 2 to Employment Agreement, dated as of February
23, 2001, between Select Medical Corporation and Robert A.
Ortenzio, incorporated by reference to Exhibit 10.48 of Select
Medical Corporations Registration Statement on Form S-1
filed March 30, 2001 (Reg. No. 333-48856).
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10
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.16
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Amendment No. 3 to Employment Agreement, dated as of September
17, 2001, between Select Medical Corporation and Robert A.
Ortenzio, incorporated by reference to Exhibit 10.53 of Select
Medical Corporations Annual Report on Form 10-K for the
fiscal year ended December 31, 2001
(Reg. No. 000-32499).
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10
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.17
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Amendment No. 4 to Employment Agreement, dated as of December
10, 2004, between Select Medical Corporation and Robert A.
Ortenzio, incorporated by reference to Exhibit 99.3 of Select
Medical Corporations Current Report on Form 8-K filed
December 16, 2004 (Reg. No. 001-31441).
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10
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.18
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Amendment No. 5 to Employment Agreement, dated as of February
24, 2005, between Select Medical Corporation and Robert A.
Ortenzio, incorporated by reference to Exhibit 10.16 of Select
Medical Corporations Form S-4 filed June 16, 2005
(Reg. No. 333-125846).
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10
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.19**
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Restricted Stock Award Agreement, dated as of February 24, 2005,
between Select Medical Holdings Corporation and Robert A.
Ortenzio.
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10
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.20**
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Restricted Stock Award Agreement, dated as of November 8,
2005, between Select Medical Holdings Corporation and Robert A.
Ortenzio.
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10
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.21
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Employment Agreement, dated as of March 1, 2000, between Select
Medical Corporation and Patricia A. Rice, incorporated by
reference to Exhibit 10.19 of Select Medical Corporations
Registration Statement on Form S-1 filed October 27, 2000
(Reg. No. 333-48856).
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10
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.22
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Amendment No. 1 to Employment Agreement, dated as of August 8,
2000, between Select Medical Corporation and Patricia A. Rice,
incorporated by reference to Exhibit 10.20 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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10
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.23
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Amendment No. 2 to Employment Agreement, dated as of February
23, 2001, between Select Medical Corporation and Patricia A.
Rice, incorporated by reference to Exhibit 10.49 of Select
Medical Corporations Registration Statement on Form S-1
filed March 30, 2001 (Reg. No. 333-48856).
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II-4
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Exhibit
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Number
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Document
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10
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.24
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Amendment No. 3 to Employment Agreement, dated as of December
10, 2004, between Select Medical Corporation and Patricia A.
Rice, incorporated by reference to Exhibit 99.2 of Select
Medical Corporations Current Report on Form 8-K filed
December 16, 2004 (Reg. No. 001-31441).
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10
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.25
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Amendment No. 4 to Employment Agreement, dated as of February
24, 2005, between Select Medical Corporation and Patricia A.
Rice, incorporated by reference to Exhibit 10.21 of Select
Medical Corporations Form S-4 filed June 16, 2005 (Reg.
No. 333-125846).
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10
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.26
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Amendment No. 5 to Employment Agreement, dated as of April 27,
2005, between Select Medical Corporation and Patricia A. Rice,
incorporated by reference to Exhibit 10.46 of Select Medical
Corporations Form S-4 filed June 16, 2005 (Reg. No.
333-125846).
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10
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.27**
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Amendment No. 6 to Employment Agreement, dated as of February
13, 2008, between Select Medical Corporation and Patricia A.
Rice.
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10
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.28**
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Restricted Stock Award Agreement, dated as of February 24,
2005, between Select Medical Corporation and Patricia A. Rice.
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10
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.29**
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Amendment No. 1 to Restricted Stock Award Agreement, dated as of
February 13, 2008, between Select Medical Corporation and
Patricia A. Rice.
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10
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.30
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Change of Control Agreement, dated as of March 1, 2000, between
Select Medical Corporation and Martin F. Jackson, incorporated
by reference to Exhibit 10.11 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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10
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.31
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Amendment to Change of Control Agreement, dated as of February
23, 2001, between Select Medical Corporation and Martin F.
Jackson, incorporated by reference to Exhibit 10.52 of Select
Medical Corporations Registration Statement on Form S-1
filed March 30, 2001 (Reg. No. 333-48856).
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10
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.32
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Second Amendment to Change of Control Agreement, dated as of
February 24, 2005, between Select Medical Corporation and Martin
F. Jackson, incorporated by reference to Exhibit 10.24 of Select
Medical Corporations Form S-4 filed June 16, 2005 (Reg.
No. 333-125846).
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10
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.33**
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Restricted Stock Award Agreement, dated as of February 24, 2005,
between Select Medical Holdings Corporation and Martin F.
Jackson.
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10
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.34
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Employment Agreement, dated as of December 16, 1998, between
Select Medical Corporation and David W. Cross, incorporated by
reference to Exhibit 10.8 of Select Medical Corporations
Registration Statement on Form S-1 filed October 27, 2000
(Reg. No. 333-48856).
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10
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.35
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First Amendment to Employment Agreement, dated as of
October 15, 2000 between Select Medical Corporation and
David W. Cross, incorporated by reference to Exhibit 10.33 of
Select Medical Corporations Registration Statement on Form
S-1 filed October 27, 2000 (Reg. No. 333-48856).
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10
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.36
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Change of Control Agreement, dated as of November 21, 2001,
between Select Medical Corporation and David W. Cross,
incorporated by reference to Exhibit 10.61 of Select Medical
Corporations Annual Report on Form 10-K for the fiscal
year ended December 31, 2001 (Reg. No. 000-32499).
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10
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.37
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Amendment to Change of Control Agreement, dated as of February
24, 2005, between Select Medical Corporation and David W. Cross,
incorporated by reference to Exhibit 10.28 of Select Medical
Corporations Form S-4 filed June 16, 2005 (Reg. No.
333-125846).
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10
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.38
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Other Senior Management Agreement, dated as of June 2, 1997,
between Select Medical Corporation and S. Frank Fritsch,
incorporated by reference to Exhibit 10.9 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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10
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.39
|
|
Change of Control Agreement, dated as of March 1, 2000, between
Select Medical Corporation and S. Frank Fritsch, incorporated by
reference to Exhibit 10.10 of Select Medical Corporations
Registration Statement on Form S-1 filed October 27, 2000
(Reg. No. 333-48856).
|
|
10
|
.40
|
|
Amendment to Change of Control Agreement, dated as of February
23, 2001, between Select Medical Corporation and S. Frank
Fritsch, incorporated by reference to Exhibit 10.53 of Select
Medical Corporations Registration Statement on Form S-1
filed March 30, 2001 (Reg. No. 333-48856).
|
II-5
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.41
|
|
Second Amendment to Change of Control Agreement, dated as of
February 24, 2005, between Select Medical Corporation and S.
Frank Fritsch, incorporated by reference to Exhibit 10.32 of
Select Medical Corporations Form S-4 filed June 16, 2005
(Reg. No. 333-125846).
|
|
10
|
.42**
|
|
Restricted Stock Award Agreement, dated as of February 24, 2005,
between Select Medical Holdings Corporation and S. Frank Fritsch.
|
|
10
|
.43
|
|
Change of Control Agreement, dated as of March 1, 2000, between
Select Medical Corporation and James J. Talalai, incorporated by
reference to Exhibit 10.58 of Select Medical Corporations
Annual Report on Form 10-K for the fiscal year ended December
31, 2001 (Reg. No. 000-32499).
|
|
10
|
.44
|
|
Amendment to Change of Control Agreement, dated as of February
23, 2001, between Select Medical Corporation and James J.
Talalai, incorporated by reference to Exhibit 10.59 of Select
Medical Corporations Annual Report on Form 10-K for the
fiscal year ended December 31, 2001 (Reg. No. 000-32499).
|
|
10
|
.45
|
|
Second Amendment to Change of Control Agreement, dated as of
February 24, 2005, between Select Medical Corporation and James
J. Talalai, incorporated by reference to Exhibit 10.35 of Select
Medical Corporations Form S-4 filed June 16, 2005 (Reg.
No. 333-125846).
|
|
10
|
.46
|
|
Other Senior Management Agreement, dated as of March 28, 1997,
between Select Medical Corporation and Michael E. Tarvin,
incorporated by reference to Exhibit 10.21 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.47
|
|
Change of Control Agreement, dated as of March 1, 2000, between
Select Medical Corporation and Michael E. Tarvin, incorporated
by reference to Exhibit 10.22 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.48
|
|
Amendment to Change of Control Agreement, dated as of February
23, 2001, between Select Medical Corporation and Michael E.
Tarvin, incorporated by reference to Exhibit 10.54 of Select
Medical Corporations Registration Statement on Form S-1
filed March 30, 2001 (Reg. No. 333-48856).
|
|
10
|
.49
|
|
Second Amendment to Change of Control Agreement, dated as of
February 24, 2005, between Select Medical Corporation and
Michael E. Tarvin, incorporated by reference to Exhibit 10.39 of
Select Medical Corporations Form S-4 filed June 16, 2005
(Reg. No. 333-125846).
|
|
10
|
.50
|
|
Change of Control Agreement, dated as of March 1, 2000, between
Select Medical Corporation and Scott A. Romberger, incorporated
by reference to Exhibit 10.56 of Select Medical
Corporations Annual Report on Form 10-K for the fiscal
year ended December 31, 2001 (Reg. No. 000-32499).
|
|
10
|
.51
|
|
Amendment to Change of Control Agreement, dated as of February
23, 2001, between Select Medical Corporation and Scott A.
Romberger, incorporated by reference to Exhibit 10.57 of Select
Medical Corporations Annual Report on Form 10-K for the
fiscal year ended December 31, 2001 (Reg. No. 000-32499).
|
|
10
|
.52
|
|
Second Amendment to Change of Control Agreement, dated as of
February 24, 2005, between Select Medical Corporation and Scott
A. Romberger, incorporated by reference to Exhibit 10.42 of
Select Medical Corporations Form S-4 filed June 16, 2005
(Reg. No. 333-125846).
|
|
10
|
.53
|
|
Fifth Amendment to Employment Agreement, dated as of April 18,
2005, between Select Medical Corporation and David W. Cross,
incorporated by reference to Exhibit 10.43 of Select Medical
Corporations Form S-4 filed June 16, 2005 (Reg. No.
333-125846).
|
|
10
|
.54**
|
|
Form of Unit Award Agreement.
|
|
10
|
.55
|
|
Consulting Agreement, dated as of January 1, 2004, between
Select Medical Corporation and Thomas A. Scully, incorporated by
reference to Exhibit 10.1 of Select Medical Corporations
Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2004 (Reg. No. 001-31441).
|
|
10
|
.56
|
|
First Amendment to Consulting Agreement, dated as of April 18,
2005, between Select Medical Corporation and Thomas A. Scully,
incorporated by reference to Exhibit 10.45 of Select Medical
Corporations Form S-4 filed June 16, 2005 (Reg. No.
333-125846).
|
II-6
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.57
|
|
Office Lease Agreement, dated as of May 18, 1999, between Select
Medical Corporation and Old Gettysburg Associates, incorporated
by reference to Exhibit 10.24 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.58
|
|
First Addendum to Lease Agreement, dated as of June 1999,
between Select Medical Corporation and Old Gettysburg
Associates, incorporated by reference to Exhibit 10.25 of Select
Medical Corporations Registration Statement on Form S-1
filed October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.59
|
|
Second Addendum to Lease Agreement, dated as of February 1,
2000, between Select Medical Corporation and Old Gettysburg
Associates, incorporated by reference to Exhibit 10.26 of Select
Medical Corporations Registration Statement on Form S-1
filed October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.60
|
|
Third Addendum to Lease Agreement, dated as of May 17, 2001,
between Select Medical Corporation and Old Gettysburg
Associates, incorporated by reference to Exhibit 10.52 of Select
Medical Corporations Registration Statement on Form S-4
filed June 26, 2001 (Reg. No. 333-63828).
|
|
10
|
.61
|
|
Fourth Addendum to Lease Agreement, dated as of September 1,
2001, by and between Old Gettysburg Associates and Select
Medical Corporation, incorporated by reference to Exhibit 10.54
of Select Medical Corporations Annual Report on Form 10-K
for the fiscal year ended December 31, 2001 (Reg. No. 000-32499).
|
|
10
|
.62
|
|
Fifth Addendum to Lease Agreement, dated as of February 19,
2004, by and between Old Gettysburg Associates and Select
Medical Corporation, incorporated by reference to Exhibit 10.59
of Select Medical Corporations Form S-4 filed June 16,
2005 (Reg. No. 333-125846).
|
|
10
|
.63**
|
|
Sixth Addendum to Lease Agreement, dated as of April 25,
2008, by and between Old Gettysburg Associates and Select
Medical Corporation.
|
|
10
|
.64
|
|
Office Lease Agreement, dated as of June 17, 1999, between
Select Medical Corporation and Old Gettysburg Associates III,
incorporated by reference to Exhibit 10.27 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.65**
|
|
First Addendum to Lease Agreement, dated as of April 25,
2008, between Old Gettysburg Associates III and Select Medical
Corporation.
|
|
10
|
.66
|
|
Office Lease Agreement, dated as of May 15, 2001, by and between
Select Medical Corporation and Old Gettysburg Associates II,
incorporated by reference to Exhibit 10.53 of Select Medical
Corporations Registration Statement on Form S-4 filed
June 26, 2001 (Reg. No. 333-63828).
|
|
10
|
.67
|
|
First Addendum to Lease Agreement, dated as of February 26,
2002, by and between Old Gettysburg Associates II and
Select Medical Corporation, incorporated by reference to Exhibit
10.2 of Select Medical Corporations Quarterly Report on
Form 10-Q for the quarter ended June 30, 2002 (Reg. No.
000-32499).
|
|
10
|
.68
|
|
Second Addendum to Lease Agreement, dated as of February 26,
2002, by and between Old Gettysburg Associates II and
Select Medical Corporation, incorporated by reference to Exhibit
10.3 of Select Medical Corporations Quarterly Report on
Form 10-Q for the quarter ended June 30, 2002 (Reg. No.
000-32499).
|
|
10
|
.69
|
|
Third Addendum to Lease Agreement, dated as of February 26,
2002, by and between Old Gettysburg Associates II and
Select Medical Corporation, incorporated by reference to Exhibit
10.4 of Select Medical Corporations Quarterly Report on
Form 10-Q for the quarter ended June 30, 2002 (Reg. No.
000-32499).
|
|
10
|
.70**
|
|
Fourth Addendum to Lease Agreement, dated as of October 1,
2008, by and between Old Gettysburg Associates II and
Select Medical Corporation.
|
|
10
|
.71**
|
|
Fifth Addendum to Lease Agreement, dated April 13, 2009, by
and between Old Gettysburg Associates II and Select Medical
Corporation.
|
II-7
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.72
|
|
Office Lease Agreement, dated as of October 29, 2003, by and
between Select Medical Corporation and Old Gettysburg
Associates, incorporated by reference to Exhibit 10.74 of Select
Medical Corporations Annual Report on Form 10-K for the
fiscal year ended December 31, 2003 (Reg. No. 001-31441).
|
|
10
|
.73**
|
|
First Addendum to Lease Agreement, dated November 1, 2008,
by and between Select Medical Corporation and Old Gettysburg
Associates.
|
|
10
|
.74**
|
|
Second Addendum to Lease Agreement, dated April 13, 2009,
by and between Select Medical Corporation and Old Gettysburg
Associates.
|
|
10
|
.75
|
|
Office Lease Agreement, dated as of October 29, 2003, by and
between Select Medical Corporation and Old Gettysburg Associates
II, incorporated by reference to Exhibit 10.75 of Select Medical
Corporations Annual Report on Form 10-K for the fiscal
year ended December 31, 2003 (Reg. No. 001-31441).
|
|
10
|
.76**
|
|
First Addendum to Lease Agreement, dated October 1, 2008,
by and between Select Medical Corporation and Old Gettysburg
Associates II.
|
|
10
|
.77**
|
|
Second Addendum to Lease Agreement, dated April 13, 2009,
by and between Select Medical Corporation and Old Gettysburg
Associates II, LP.
|
|
10
|
.78
|
|
Office Lease Agreement, dated as of March 19, 2004, by and
between Select Medical Corporation and Old Gettysburg Associates
II, incorporated by reference to Exhibit 10.3 of Select Medical
Corporations Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2004 (Reg. No. 001-31441).
|
|
10
|
.79
|
|
Office Lease Agreement, dated as of March 19, 2004, by and
between Select Medical Corporation and Old Gettysburg
Associates, incorporated by reference to Exhibit 10.4 of Select
Medical Corporations Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2004 (Reg. No. 001-31441).
|
|
10
|
.80**
|
|
First Addendum to Lease Agreement, dated March 6, 2009, by
and between Old Gettysburg Associates II, LP and Select
Medical Corporation.
|
|
10
|
.81**
|
|
Second Addendum to Lease Agreement, dated April 13, 2009,
by and between Old Gettysburg Associates II, LP and Select
Medical Corporation.
|
|
10
|
.82
|
|
Office Lease Agreement, dated August 25, 2006, between Old
Gettysburg Associates IV, L.P. and Select Medical Corporation,
incorporated by reference to Exhibit 10.1 of Select Medical
Corporations Quarterly Report on Form 10-Q for the quarter
ended September 30, 2006 (Reg. No. 001-31441).
|
|
10
|
.83
|
|
Office Lease Agreement, dated August 10, 2005, among Old
Gettysburg Associates II and Select Medical Corporation,
incorporated by reference to Exhibit 10.1 of Select Medical
Corporations Current Report on Form 8-K filed August 16,
2005 (Reg. No. 001-31441).
|
|
10
|
.84**
|
|
First Addendum to Lease Agreement, dated April 13, 2009, by
and between Old Gettysburg Associates II and Select Medical
Corporation.
|
|
10
|
.85**
|
|
Office Lease Agreement, dated October 5, 2006, by and between
Select Medical Corporation and Old Gettysburg Associates.
|
|
10
|
.86
|
|
Naming, Promotional and Sponsorship Agreement, dated as of
October 1, 1997, between NovaCare, Inc. and the Philadelphia
Eagles Limited Partnership, assumed by Select Medical
Corporation in a Consent and Assumption Agreement dated November
19, 1999 by and among NovaCare, Inc., Select Medical Corporation
and the Philadelphia Eagles Limited Partnership, incorporated by
reference to Exhibit 10.36 of Select Medical Corporations
Registration Statement on Form S-1 filed December 7, 2000
(Reg. No. 333-48856).
|
|
10
|
.87
|
|
First Amendment to Naming, Promotional and Sponsorship
Agreement, dated as of January 1, 2004, between Select Medical
Corporation and Philadelphia Eagles, LLC, incorporated by
reference to Exhibit 10.63 of Select Medical Corporations
Form S-4 filed June 16, 2005 (Reg. No. 333-125846).
|
|
10
|
.88**
|
|
Select Medical Holdings Corporation 2005 Equity Incentive Plan,
as amended and restated.
|
|
10
|
.89**
|
|
Select Medical Holdings Corporation 2005 Equity Incentive Plan
for Non-Employee Directors, as amended and restated.
|
II-8
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.90**
|
|
Select Medical Holdings Corporation Long Term Cash Incentive
Plan, as amended.
|
|
10
|
.91**
|
|
First Amendment to Select Medical Holdings Corporation Long Term
Cash Incentive Plan, dated as of August 20, 2008.
|
|
10
|
.92**
|
|
Second Amendment to Select Medical Holdings Corporation Long
Term Cash Incentive Plan, dated as of August 12, 2009.
|
|
10
|
.93**
|
|
Second Amendment to Employment Agreement, dated as of
October 26, 2001 between Select Medical Corporation and
David W. Cross.
|
|
10
|
.94**
|
|
Third Amendment to Employment Agreement, dated as of
November 1, 2002 between Select Medical Corporation and
David W. Cross.
|
|
10
|
.95**
|
|
Fourth Amendment to Employment Agreement, dated as of
December 31, 2003 between Select Medical Corporation and
David W. Cross.
|
|
10
|
.96**
|
|
Amendment No. 6 to Employment Agreement between Select
Medical Corporation and Rocco A. Ortenzio.
|
|
10
|
.97**
|
|
Amendment No. 6 to Employment Agreement between Select
Medical Corporation and Robert A. Ortenzio.
|
|
10
|
.98**
|
|
Amendment No. 7 to Employment Agreement between Select
Medical Corporation and Patricia A. Rice.
|
|
10
|
.99**
|
|
Sixth Amendment to Employment Agreement between Select Medical
Corporation and David W. Cross.
|
|
10
|
.100**
|
|
Second Amendment to Change of Control Agreement between Select
Medical Corporation and David W. Cross.
|
|
10
|
.101**
|
|
Third Amendment to Change of Control Agreement between Select
Medical Corporation and Michael E. Tarvin.
|
|
10
|
.102**
|
|
Third Amendment to Change of Control Agreement between Select
Medical Corporation and James J. Talalai.
|
|
10
|
.103**
|
|
Third Amendment to Change of Control Agreement between Select
Medical Corporation and Scott A. Romberger.
|
|
10
|
.104**
|
|
Third Amendment to Change of Control Agreement between Select
Medical Corporation and Martin F. Jackson.
|
|
10
|
.105**
|
|
Third Amendment to Change of Control Agreement between Select
Medical Corporation and S. Frank Fritsch.
|
|
10
|
.106
|
|
Amendment No. 1, dated as of September 26, 2005, to Credit
Agreement, dated as of February 24, 2005, among Select Medical
Holdings Corporation, Select Medical Corporation, as Borrower,
the Lenders party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent and Collateral Agent, Wachovia Bank,
National Association, as Syndication Agent and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and CIBC Inc., as
Co-Documentation Agents, incorporated by reference to Exhibit
10.2 of Select Medical Corporations Quarterly Report on
Form 10-Q for the quarter ended September 30, 2005 (Reg.
No. 001-31441).
|
|
10
|
.107
|
|
Amendment No. 2 and Waiver, dated as of March 19, 2007, to
Credit Agreement, dated as of February 24, 2005, among Select
Medical Holdings Corporation, Select Medical Corporation, as
Borrower, the Lenders party thereto, JPMorgan Chase Bank, N.A.,
as Administrative Agent and Collateral Agent, Wachovia Bank,
National Association, as Syndication Agent and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and CIBC Inc., as
Co-Documentation Agents, incorporated by reference to Exhibit
10.1 of Select Medical Corporations Current Report on Form
8-K filed March 23, 2007 (Reg. No. 001-31441).
|
II-9
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.108
|
|
Incremental Facility Amendment, dated as of March 28, 2007, to
Credit Agreement, dated as of February 24, 2005, among Select
Medical Holdings Corporation, Select Medical Corporation, as
Borrower, the Lenders party thereto, JPMorgan Chase Bank, N.A.,
as Administrative Agent and Collateral Agent, Wachovia Bank,
National Association, as Syndication Agent and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and CIBC Inc., as
Co-Documentation Agents, incorporated by reference to Exhibit
10.1 of Select Medical Corporations Current Report on Form
8-K filed March 30, 2007 (Reg. No. 001-31441).
|
|
10
|
.109**
|
|
Amendment No. 3, dated as of August 5, 2009, to Credit
Agreement, dated as of February 24, 2005, among Select
Medical Holdings Corporation, Select Medical Corporation, as
Borrower, the Lenders party thereto, JPMorgan Chase Bank, N.A.,
as Administrative Agent and Collateral Agent, Wachovia Bank,
National Association, as Syndication Agent and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and CIBC Inc., as
Co-Documentation Agents.
|
|
10
|
.110
|
|
Indenture governing
7
5
/
8
% Senior
Subordinated Notes due 2015 among Select Medical Corporation,
the Guarantors named therein and U.S. Bank Trust National
Association, dated February 24, 2005, incorporated by reference
to Exhibit 4.4 of Select Medical Corporations Form S-4
filed June 16, 2005 (Reg. No. 333-125846).
|
|
10
|
.111
|
|
Form of
7
5
/
8
% Senior
Subordinated Notes due 2015 (included in Exhibit 4.4),
incorporated by reference to Select Medical Corporations
Form S-4 filed June 16, 2005 (Reg. No. 333-125846).
|
|
10
|
.112
|
|
Exchange and Registration Rights Agreement, dated as of February
24, 2005, by and among Select Medical Corporation, the
Guarantors named therein, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, J.P. Morgan Securities Inc., Wachovia
Capital Markets, LLC, CIBC World Markets Corp. and PNC Capital
Markets, Inc., incorporated by reference to Exhibit 4.6 of
Select Medical Corporations Form S-4 filed June 16,
2005 (Reg. No. 333-125846).
|
|
10
|
.113
|
|
Registration Rights Agreement, dated as of February 24, 2005,
between Select Medical Holdings Corporation, WCAS Capital
Partners IV, L.P., Rocco A. Ortenzio, Robert A. Ortenzio, John
M. Ortenzio, Martin J. Ortenzio, Martin J. Ortenzio
Descendants Trust and Ortenzio Family Foundation, incorporated
by reference to Exhibit 10.78 of Select Medical Holdings
Corporations Form S-4 filed April 13, 2006 (Reg. No.
333-133284).
|
|
10
|
.114
|
|
Indenture governing Senior Floating Rate Notes due 2015 among
Select Medical Holdings Corporation and U.S. Bank Trust National
Association, dated September 29, 2005, incorporated by reference
to Exhibit 4.7 of Select Medical Holdings Corporations
Form S-4 filed April 13, 2006 (Reg. No. 333-133284).
|
|
10
|
.115
|
|
Form of Senior Floating Rate Notes due 2015 (included in
Exhibit 4.7), incorporated by reference to Select Medical
Holdings Corporations Form S-4 filed April 13, 2006 (Reg.
No. 333-133284).
|
|
10
|
.116
|
|
Exchange and Registration Rights Agreement, dated as of
September 29, 2005, by and among Select Medical Holdings
Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Wachovia Capital Markets, LLC and J.P. Morgan
Securities Inc., incorporated by reference to Exhibit 4.9 of
Select Medical Holdings Corporations Form S-4 filed April
13, 2006 (Reg. No. 333-133284).
|
|
10
|
.117
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of WCAS Capital Partners IV, L.P., amended and restated as of
September 29, 2005, incorporated by reference to Exhibit 10.69
of Select Medical Holdings Corporations Form S-4 filed
April 13, 2006 (Reg. No. 333-133284).
|
|
10
|
.118
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of Rocco A. Ortenzio, amended and restated as of September 29,
2005, incorporated by reference to Exhibit 10.70 of Select
Medical Holdings Corporations Form S-4 filed April 13,
2006 (Reg. No. 333-133284).
|
|
10
|
.119
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of Robert A. Ortenzio, amended and restated as of September 29,
2005, incorporated by reference to Exhibit 10.71 of Select
Medical Holdings Corporations Form S-4 filed April 13,
2006 (Reg. No. 333-133284).
|
|
10
|
.120
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of John M. Ortenzio, amended and restated as of September 29,
2005, incorporated by reference to Exhibit 10.72 of Select
Medical Holdings Corporations Form S-4 filed April 13,
2006 (Reg. No. 333-133284).
|
II-10
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.121
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of Martin J. Ortenzio, amended and restated as of September 29,
2005, incorporated by reference to Exhibit 10.73 of Select
Medical Holdings Corporations Form S-4 filed April 13,
2006 (Reg. No. 333-133284).
|
|
10
|
.122
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of Martin J. Ortenzio Descendants Trust, amended and restated as
of September 29, 2005, incorporated by reference to Exhibit
10.74 of Select Medical Holdings Corporations Form S-4
filed April 13, 2006 (Reg. No. 333-133284).
|
|
10
|
.123
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of Ortenzio Family Foundation, amended and restated as of
September 29, 2005, incorporated by reference to Exhibit 10.75
of Select Medical Holdings Corporations Form S-4 filed
April 13, 2006 (Reg. No. 333-133284).
|
|
10
|
.124
|
|
Letter Agreement, dated November 12, 2007, by and among Select
Medical Corporation, SLMC Finance Corporation, Cedar Cliff
Acquisition Corporation, CORA Health Services, Inc. and Brad C.
Roush, as Stockholders Agent, incorporated by reference to
Exhibit 99.1 of Select Medical Corporations Current Report
on Form 8-K filed November 13, 2007 (Reg. No. 001-31441).
|
|
10
|
.125
|
|
Letter Agreement, dated June 7, 2007, by and among Select
Medical Corporation, Nexus Health Systems, Inc., Neurobehavioral
Management Services L.L.C., and Nexus Health Inc, incorporated
by reference to Exhibit 99.1 of Select Medical
Corporations Current Report on Form 8-K filed June 8, 2007
(Reg. No. 001-31441).
|
|
21
|
.1**
|
|
Subsidiaries of Select Medical Holdings Corporation.
|
|
23
|
.1**
|
|
Consent of PricewaterhouseCoopers LLP.
|
|
23
|
.2
|
|
Consent of Dechert LLP (included in Exhibit 5.1).
|
|
24
|
.1**
|
|
Powers of Attorney (see signature pages to Amendment No. 1
to the Registration Statement).
|
|
24
|
.2**
|
|
Power of Attorney for James S. Ely III.
|
|
|
|
*
|
|
To be filed by amendment.
|
(b)
Financial Statement Schedule
See the Index to Financial Statements included on
page F-1
for a list of the financial statements included in this
registration statement.
All schedules not identified above have been omitted because
they are not required, are not applicable or the information is
included in the selected consolidated financial data or notes
contained in this registration statement.
a. The undersigned registrant hereby undertakes to provide
to the underwriters at the closing specified in the underwriting
agreements, certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
b. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a
II-11
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
c. The undersigned registrant hereby undertakes that:
1. For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
2. For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial
bona fide
offering thereof.
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Mechanicsburg, Commonwealth of
Pennsylvania, on September 21, 2009.
SELECT MEDICAL HOLDINGS CORPORATION
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By:
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/s/ Michael
E. Tarvin
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Michael E. Tarvin
Executive Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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*
Rocco
A. Ortenzio
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Director and Executive Chairman
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September 21, 2009
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*
Robert
A Ortenzio
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Director and Chief Executive Officer (principal executive
officer)
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September 21, 2009
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*
Martin
F. Jackson
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Executive Vice President and Chief Financial Officer (principal
financial officer)
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September 21, 2009
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*
Scott
A. Romberger
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Senior Vice President, Controller and Chief Accounting Officer
(principal accounting officer)
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September 21, 2009
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*
Russell
L. Carson
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Director
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September 21, 2009
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*
David
S. Chernow
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Director
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September 21, 2009
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*
Bryan
C. Cressey
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Director
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September 21, 2009
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*
James
E. Dalton, Jr.
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Director
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September 21, 2009
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II-13
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Signature
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Title
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Date
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*
James
S. Ely III
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Director
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September 21, 2009
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*
Thomas
A. Scully
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Director
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September 21, 2009
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*
Leopold
Swergold
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Director
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September 21, 2009
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*
Sean
M. Traynor
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Director
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September 21, 2009
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*By
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/s/ Michael
E. Tarvin
Name:
Michael E. Tarvin
Title: Attorney-in-fact
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II-14
EXHIBIT INDEX
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Exhibit
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Number
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Document
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1
|
.1
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Form of Underwriting Agreement.
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2
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.1
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Stock Purchase Agreement, dated as of January 27, 2007,
between HealthSouth Corporation and Select Medical Corporation,
incorporated by reference to Exhibit 2.1 of Select Medical
Corporations Current Report on Form 8-K filed January 30,
2007 (Reg. No. 001-31441).
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2
|
.2
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Letter Agreement, dated as of May 1, 2007, between
HealthSouth Corporation and Select Medical Corporation,
incorporated by reference to Exhibit 2.2 of Select Medical
Corporations Current Report on Form 8-K filed May 7, 2007
(Reg. No. 001-31441).
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|
2
|
.3
|
|
Acquisition Agreement, dated as of December 23, 2005,
between Select Medical Corporation, SLMC Finance Corporation and
Callisto Capital L.P., incorporated by reference to Exhibit 2.1
of Select Medical Corporations Current Report on Form 8-K
filed December 28, 2005 (Reg. No. 001-31441).
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2
|
.4
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|
Amendment to Acquisition Agreement, dated as of February 9,
2006, among Select Medical Corporation, SLMC Finance
Corporation, Callisto Capital L.P. and Canadian Back Institute
Limited, incorporated by reference to Exhibit 2.1 of Select
Medical Corporations Current Report on Form 8-K filed
February 10, 2006 (Reg. No. 001-31441).
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3
|
.3
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|
Form of Restated Certificate of Incorporation of Select Medical
Holdings Corporation.
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3
|
.4
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|
Form of Amended and Restated Bylaws of Select Medical Holdings
Corporation.
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4
|
.1
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|
Registration Rights Agreement, dated as of February 24, 2005,
among Select Medical Holdings Corporation, Welsh, Carson,
Anderson & Stowe IX, L.P., WCAS Capital Partners IV, L.P.,
each of the entities and individuals listed on Schedule I
thereto and each of the other entities and individuals from time
to time listed on Schedule II thereto, incorporated by
reference to Exhibit 10.77 of Select Medical Holdings
Corporations Form S-4 filed April 13, 2006 (Reg. No.
333-133284).
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5
|
.1
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|
Opinion of Dechert LLP.
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|
10
|
.1
|
|
Credit Agreement, dated as of February 24, 2005, among Select
Medical Holdings Corporation, Select Medical Corporation, as
Borrower, the Lenders party thereto, JPMorgan Chase Bank, N.A.,
as Administrative Agent and Collateral Agent, Wachovia Bank,
National Association, as Syndication Agent and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and CIBC Inc., as
Co-Documentation Agents, incorporated by reference to Exhibit
10.1 of Select Medical Corporations Form S-4 filed June
16, 2005 (Reg. No. 333-125846).
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10
|
.2
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|
Guarantee and Collateral Agreement, dated as of February 24,
2005, among Select Medical Holdings Corporation, Select Medical
Corporation, the Subsidiaries of Select Medical Corporation
identified therein and JPMorgan Chase Bank, N.A., as Collateral
Agent, incorporated by reference to Exhibit 10.2 of Select
Medical Corporations Form S-4 filed June 16, 2005 (Reg.
No. 333-125846).
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|
10
|
.3
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|
Amended and Restated Senior Management Agreement, dated as of
May 7, 1997, between Select Medical Corporation, John Ortenzio,
Martin Ortenzio, Select Investments II, Select Partners, L.P.
and Rocco Ortenzio, incorporated by reference to Exhibit
10.34 of Select Medical Corporations Registration
Statement on Form S-1 filed October 27, 2000 (Reg. No.
333-48856).
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10
|
.4
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|
Amendment No. 1, dated as of January 1, 2000, to Amended and
Restated Senior Management Agreement, dated as of May 7, 1997,
between Select Medical Corporation and Rocco A. Ortenzio,
incorporated by reference to Exhibit 10.35 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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10
|
.5
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|
Employment Agreement, dated as of March 1, 2000, between Select
Medical Corporation and Rocco A. Ortenzio, incorporated by
reference to Exhibit 10.16 of Select Medical Corporations
Registration Statement on Form S-1 filed October 27, 2000
(Reg. No. 333-48856).
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10
|
.6
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|
Amendment No. 1 to Employment Agreement, dated as of
August 8, 2000, between Select Medical Corporation and Rocco A.
Ortenzio, incorporated by reference to Exhibit 10.17 of Select
Medical Corporations Registration Statement on Form S-1
filed October 27, 2000 (Reg. No. 333-48856).
|
II-15
|
|
|
|
|
Exhibit
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|
|
Number
|
|
Document
|
|
|
10
|
.7
|
|
Amendment No. 2 to Employment Agreement, dated as of February
23, 2001, between Select Medical Corporation and Rocco A.
Ortenzio, incorporated by reference to Exhibit 10.47 of Select
Medical Corporations Registration Statement on Form S-1
filed March 30, 2001 (Reg. No. 333-48856).
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10
|
.8
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|
Amendment No. 3 to Employment Agreement, dated as of April 24,
2001, between Select Medical Corporation and Rocco A. Ortenzio,
incorporated by reference to Exhibit 10.50 of Select Medical
Corporations Registration Statement on Form S-4 filed
June 26, 2001 (Reg. No. 333-63828).
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10
|
.9
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|
Amendment No. 4 to Employment Agreement, dated as of September
17, 2001, between Select Medical Corporation and Rocco A.
Ortenzio, incorporated by reference to Exhibit 10.52 of Select
Medical Corporations Annual Report on Form 10-K for the
fiscal year ended December 31, 2001 (Reg. No. 000-32499).
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10
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.10
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|
Amendment No. 5 to Employment Agreement, dated as of February
24, 2005, between Select Medical Corporation and Rocco A.
Ortenzio, incorporated by reference to Exhibit 10.10 of Select
Medical Corporations Form S-4 filed June 16, 2005
(Reg. No. 333-125846).
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10
|
.11**
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Restricted Stock Award Agreement, dated as of February 24,
2005, between Select Medical Holdings Corporation and
Rocco A. Ortenzio.
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10
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.12**
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Restricted Stock Award Agreement, dated as of November 8,
2005, between Select Medical Holdings Corporation and
Rocco A. Ortenzio.
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10
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.13
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Employment Agreement, dated as of March 1, 2000, between Select
Medical Corporation and Robert A. Ortenzio, incorporated by
reference to Exhibit 10.14 of Select Medical Corporations
Registration Statement on Form S-1 filed October 27, 2000
(Reg. No. 333-48856).
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10
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.14
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Amendment No. 1 to Employment Agreement, dated as of August
8, 2000, between Select Medical Corporation and Robert A.
Ortenzio, incorporated by reference to Exhibit 10.15 of Select
Medical Corporations Registration Statement on Form S-1
filed October 27, 2000 (Reg. No. 333-48856).
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10
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.15
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|
Amendment No. 2 to Employment Agreement, dated as of February
23, 2001, between Select Medical Corporation and Robert A.
Ortenzio, incorporated by reference to Exhibit 10.48 of Select
Medical Corporations Registration Statement on Form S-1
filed March 30, 2001 (Reg. No. 333-48856).
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10
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.16
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|
Amendment No. 3 to Employment Agreement, dated as of September
17, 2001, between Select Medical Corporation and Robert A.
Ortenzio, incorporated by reference to Exhibit 10.53 of Select
Medical Corporations Annual Report on Form 10-K for the
fiscal year ended December 31, 2001 (Reg. No. 000-32499).
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|
10
|
.17
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|
Amendment No. 4 to Employment Agreement, dated as of December
10, 2004, between Select Medical Corporation and Robert A.
Ortenzio, incorporated by reference to Exhibit 99.3 of Select
Medical Corporations Current Report on Form 8-K filed
December 16, 2004 (Reg. No. 001-31441).
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10
|
.18
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|
Amendment No. 5 to Employment Agreement, dated as of February
24, 2005, between Select Medical Corporation and Robert A.
Ortenzio, incorporated by reference to Exhibit 10.16 of Select
Medical Corporations Form S-4 filed June 16, 2005
(Reg. No. 333-125846).
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10
|
.19**
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|
Restricted Stock Award Agreement, dated as of February 24, 2005,
between Select Medical Holdings Corporation and Robert A.
Ortenzio.
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10
|
.20**
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|
Restricted Stock Award Agreement, dated as of November 8,
2005, between Select Medical Holdings Corporation and
Robert A. Ortenzio.
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10
|
.21
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|
Employment Agreement, dated as of March 1, 2000, between Select
Medical Corporation and Patricia A. Rice, incorporated
by reference to Exhibit 10.19 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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10
|
.22
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|
Amendment No. 1 to Employment Agreement, dated as of August 8,
2000, between Select Medical Corporation and Patricia A. Rice,
incorporated by reference to Exhibit 10.20 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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II-16
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|
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|
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Exhibit
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|
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Number
|
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Document
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|
|
10
|
.23
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|
Amendment No. 2 to Employment Agreement, dated as of February
23, 2001, between Select Medical Corporation and Patricia A.
Rice, incorporated by reference to Exhibit 10.49 of Select
Medical Corporations Registration Statement on Form S-1
filed March 30, 2001 (Reg. No. 333-48856).
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10
|
.24
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|
Amendment No. 3 to Employment Agreement, dated as of December
10, 2004, between Select Medical Corporation and Patricia A.
Rice, incorporated by reference to Exhibit 99.2 of Select
Medical Corporations Current Report on Form 8-K filed
December 16, 2004 (Reg. No. 001-31441).
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10
|
.25
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|
Amendment No. 4 to Employment Agreement, dated as of February
24, 2005, between Select Medical Corporation and Patricia A.
Rice, incorporated by reference to Exhibit 10.21 of Select
Medical Corporations Form S-4 filed June 16, 2005 (Reg.
No. 333-125846).
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10
|
.26
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|
Amendment No. 5 to Employment Agreement, dated as of April 27,
2005, between Select Medical Corporation and Patricia A. Rice,
incorporated by reference to Exhibit 10.46 of Select Medical
Corporations Form S-4 filed June 16, 2005 (Reg. No.
333-125846).
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10
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.27**
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|
Amendment No. 6 to Employment Agreement, dated as of February
13, 2008, between Select Medical Corporation and Patricia A.
Rice.
|
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10
|
.28**
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Restricted Stock Award Agreement, dated as of February 24,
2005, between Select Medical Corporation and Patricia A. Rice.
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10
|
.29**
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Amendment No. 1 to Restricted Stock Award Agreement, dated as of
February 13, 2008, between Select Medical Corporation and
Patricia A. Rice.
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10
|
.30
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|
Change of Control Agreement, dated as of March 1, 2000, between
Select Medical Corporation and Martin F. Jackson, incorporated
by reference to Exhibit 10.11 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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10
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.31
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|
Amendment to Change of Control Agreement, dated as of February
23, 2001, between Select Medical Corporation and Martin F.
Jackson, incorporated by reference to Exhibit 10.52 of Select
Medical Corporations Registration Statement on Form S-1
filed March 30, 2001 (Reg. No. 333-48856).
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10
|
.32
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Second Amendment to Change of Control Agreement, dated as of
February 24, 2005, between Select Medical Corporation and Martin
F. Jackson, incorporated by reference to Exhibit 10.24 of Select
Medical Corporations Form S-4 filed June 16, 2005 (Reg.
No. 333-125846).
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10
|
.33**
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|
Restricted Stock Award Agreement, dated as of February 24, 2005,
between Select Medical Holdings Corporation and Martin F.
Jackson.
|
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10
|
.34
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|
Employment Agreement, dated as of December 16, 1998, between
Select Medical Corporation and David W. Cross, incorporated
by reference to Exhibit 10.8 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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10
|
.35
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|
First Amendment to Employment Agreement, dated as of
October 15, 2000, between Select Medical Corporation and
David W. Cross, incorporated by reference to Exhibit 10.33 of
Select Medical Corporations Registration Statement on Form
S-1 filed October 27, 2000 (Reg. No. 333-48856).
|
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10
|
.36
|
|
Change of Control Agreement, dated as of November 21, 2001,
between Select Medical Corporation and David W. Cross,
incorporated by reference to Exhibit 10.61 of Select Medical
Corporations Annual Report on Form 10-K for the fiscal
year ended December 31, 2001 (Reg. No. 000-32499).
|
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10
|
.37
|
|
Amendment to Change of Control Agreement, dated as of February
24, 2005, between Select Medical Corporation and David W. Cross,
incorporated by reference to Exhibit 10.28 of Select Medical
Corporations Form S-4 filed June 16, 2005 (Reg. No.
333-125846).
|
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10
|
.38
|
|
Other Senior Management Agreement, dated as of June 2, 1997,
between Select Medical Corporation and S. Frank Fritsch,
incorporated by reference to Exhibit 10.9 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.39
|
|
Change of Control Agreement, dated as of March 1, 2000, between
Select Medical Corporation and S. Frank Fritsch,
incorporated by reference to Exhibit 10.10 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
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II-17
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.40
|
|
Amendment to Change of Control Agreement, dated as of February
23, 2001, between Select Medical Corporation and S. Frank
Fritsch, incorporated by reference to Exhibit 10.53 of Select
Medical Corporations Registration Statement on Form S-1
filed March 30, 2001 (Reg. No. 333-48856).
|
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10
|
.41
|
|
Second Amendment to Change of Control Agreement, dated as of
February 24, 2005, between Select Medical Corporation and S.
Frank Fritsch, incorporated by reference to Exhibit 10.32 of
Select Medical Corporations Form S-4 filed June 16,
2005 (Reg. No. 333-125846).
|
|
10
|
.42**
|
|
Restricted Stock Award Agreement, dated as of February 24, 2005,
between Select Medical Holdings Corporation and S. Frank Fritsch.
|
|
10
|
.43
|
|
Change of Control Agreement, dated as of March 1, 2000, between
Select Medical Corporation and James J. Talalai,
incorporated by reference to Exhibit 10.58 of Select Medical
Corporations Annual Report on Form 10-K for the fiscal
year ended December 31, 2001 (Reg. No. 000-32499).
|
|
10
|
.44
|
|
Amendment to Change of Control Agreement, dated as of February
23, 2001, between Select Medical Corporation and James J.
Talalai, incorporated by reference to Exhibit 10.59 of Select
Medical Corporations Annual Report on Form 10-K for the
fiscal year ended December 31, 2001 (Reg. No. 000-32499).
|
|
10
|
.45
|
|
Second Amendment to Change of Control Agreement, dated as of
February 24, 2005, between Select Medical Corporation and James
J. Talalai, incorporated by reference to Exhibit 10.35 of Select
Medical Corporations Form S-4 filed June 16, 2005 (Reg.
No. 333-125846).
|
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10
|
.46
|
|
Other Senior Management Agreement, dated as of March 28, 1997,
between Select Medical Corporation and Michael E. Tarvin,
incorporated by reference to Exhibit 10.21 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
|
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10
|
.47
|
|
Change of Control Agreement, dated as of March 1, 2000, between
Select Medical Corporation and Michael E. Tarvin, incorporated
by reference to Exhibit 10.22 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.48
|
|
Amendment to Change of Control Agreement, dated as of February
23, 2001, between Select Medical Corporation and Michael E.
Tarvin, incorporated by reference to Exhibit 10.54 of Select
Medical Corporations Registration Statement on Form S-1
filed March 30, 2001 (Reg. No. 333-48856).
|
|
10
|
.49
|
|
Second Amendment to Change of Control Agreement, dated as of
February 24, 2005, between Select Medical Corporation and
Michael E. Tarvin, incorporated by reference to Exhibit 10.39 of
Select Medical Corporations Form S-4 filed June 16,
2005 (Reg. No. 333-125846).
|
|
10
|
.50
|
|
Change of Control Agreement, dated as of March 1, 2000, between
Select Medical Corporation and Scott A. Romberger,
incorporated by reference to Exhibit 10.56 of Select Medical
Corporations Annual Report on Form 10-K for the fiscal
year ended December 31, 2001 (Reg. No. 000-32499).
|
|
10
|
.51
|
|
Amendment to Change of Control Agreement, dated as of February
23, 2001, between Select Medical Corporation and Scott A.
Romberger, incorporated by reference to Exhibit 10.57 of Select
Medical Corporations Annual Report on Form 10-K for the
fiscal year ended December 31, 2001 (Reg. No. 000-32499).
|
|
10
|
.52
|
|
Second Amendment to Change of Control Agreement, dated as of
February 24, 2005, between Select Medical Corporation and Scott
A. Romberger, incorporated by reference to Exhibit 10.42 of
Select Medical Corporations Form S-4 filed June 16, 2005
(Reg. No. 333-125846).
|
|
10
|
.53
|
|
Fifth Amendment to Employment Agreement, dated as of April 18,
2005, between Select Medical Corporation and David W. Cross,
incorporated by reference to Exhibit 10.43 of Select Medical
Corporations Form S-4 filed June 16, 2005 (Reg. No.
333-125846).
|
|
10
|
.54**
|
|
Form of Unit Award Agreement.
|
|
10
|
.55
|
|
Consulting Agreement, dated as of January 1, 2004, between
Select Medical Corporation and Thomas A. Scully,
incorporated by reference to Exhibit 10.1 of Select Medical
Corporations Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2004 (Reg. No. 001-31441).
|
II-18
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.56
|
|
First Amendment to Consulting Agreement, dated as of April 18,
2005, between Select Medical Corporation and Thomas A. Scully,
incorporated by reference to Exhibit 10.45 of Select Medical
Corporations Form S-4 filed June 16, 2005 (Reg. No.
333-125846).
|
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10
|
.57
|
|
Office Lease Agreement, dated as of May 18, 1999, between Select
Medical Corporation and Old Gettysburg Associates, incorporated
by reference to Exhibit 10.24 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.58
|
|
First Addendum to Lease Agreement, dated as of June 1999,
between Select Medical Corporation and Old Gettysburg
Associates, incorporated by reference to Exhibit 10.25 of Select
Medical Corporations Registration Statement on Form S-1
filed October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.59
|
|
Second Addendum to Lease Agreement, dated as of February 1,
2000, between Select Medical Corporation and Old Gettysburg
Associates, incorporated by reference to Exhibit 10.26 of Select
Medical Corporations Registration Statement on Form S-1
filed October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.60
|
|
Third Addendum to Lease Agreement, dated as of May 17,
2001, between Select Medical Corporation and Old Gettysburg
Associates, incorporated by reference to Exhibit 10.52 of Select
Medical Corporations Registration Statement on Form S-4
filed June 26, 2001 (Reg. No. 333-63828).
|
|
10
|
.61
|
|
Fourth Addendum to Lease Agreement, dated as of September 1,
2001, by and between Old Gettysburg Associates and Select
Medical Corporation, incorporated by reference to Exhibit 10.54
of Select Medical Corporations Annual Report on Form 10-K
for the fiscal year ended December 31, 2001 (Reg. No. 000-32499).
|
|
10
|
.62
|
|
Fifth Addendum to Lease Agreement, dated as of February 19,
2004, by and between Old Gettysburg Associates and Select
Medical Corporation, incorporated by reference to Exhibit 10.59
of Select Medical Corporations Form S-4 filed June 16,
2005 (Reg. No. 333-125846).
|
|
10
|
.63**
|
|
Sixth Addendum to Lease Agreement, dated as of April 25,
2008, by and between Old Gettysburg Associates and Select
Medical Corporation.
|
|
10
|
.64
|
|
Office Lease Agreement, dated as of June 17, 1999, between
Select Medical Corporation and Old Gettysburg Associates III,
incorporated by reference to Exhibit 10.27 of Select Medical
Corporations Registration Statement on Form S-1 filed
October 27, 2000 (Reg. No. 333-48856).
|
|
10
|
.65**
|
|
First Addendum to Lease Agreement, dated as of April 25,
2008, between Old Gettysburg Associates III and Select
Medical Corporation.
|
|
10
|
.66
|
|
Office Lease Agreement, dated as of May 15, 2001, by and between
Select Medical Corporation and Old Gettysburg Associates II,
incorporated by reference to Exhibit 10.53 of Select Medical
Corporations Registration Statement on Form S-4 filed
June 26, 2001 (Reg. No. 333-63828).
|
|
10
|
.67
|
|
First Addendum to Lease Agreement, dated as of February 26,
2002, by and between Old Gettysburg Associates II and
Select Medical Corporation, incorporated by reference to Exhibit
10.2 of Select Medical Corporations Quarterly Report on
Form 10-Q for the quarter ended June 30, 2002 (Reg. No.
000-32499).
|
|
10
|
.68
|
|
Second Addendum to Lease Agreement, dated as of February 26,
2002, by and between Old Gettysburg Associates II and
Select Medical Corporation, incorporated by reference to Exhibit
10.3 of Select Medical Corporations Quarterly Report on
Form 10-Q for the quarter ended June 30, 2002 (Reg. No.
000-32499).
|
|
10
|
.69
|
|
Third Addendum to Lease Agreement, dated as of February 26,
2002, by and between Old Gettysburg Associates II and
Select Medical Corporation, incorporated by reference to Exhibit
10.4 of Select Medical Corporations Quarterly Report on
Form 10-Q for the quarter ended June 30, 2002 (Reg. No.
000-32499).
|
|
10
|
.70**
|
|
Fourth Addendum to Lease Agreement, dated as of October 1, 2008,
by and between Old Gettysburg Associates II and Select Medical
Corporaton.
|
II-19
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.71**
|
|
Fifth Addendum to Lease Agreement, dated April 13, 2009, by
and between Old Gettysburg Associates II and Select Medical
Corporation.
|
|
10
|
.72
|
|
Office Lease Agreement, dated as of October 29, 2003, by and
between Select Medical Corporation and Old Gettysburg
Associates, incorporated by reference to Exhibit 10.74 of Select
Medical Corporations Annual Report on Form 10-K for the
fiscal year ended December 31, 2003 (Reg. No. 001-31441).
|
|
10
|
.73**
|
|
First Addendum to Lease Agreement, dated November 1, 2008,
by and between Select Medical Corporation and Old Gettysburg
Associates.
|
|
10
|
.74**
|
|
Second Addendum to Lease Agreement, dated April 13, 2009,
by and between Select Medical Corporation and Old Gettysburg
Associates.
|
|
10
|
.75
|
|
Office Lease Agreement, dated as of October 29, 2003, by and
between Select Medical Corporation and Old Gettysburg Associates
II, incorporated by reference to Exhibit 10.75 of Select Medical
Corporations Annual Report on Form 10-K for the fiscal
year ended December 31, 2003 (Reg. No. 001-31441).
|
|
10
|
.76**
|
|
First Addendum to Lease Agreement, dated October 1, 2008,
by and between Select Medical Corporation and Old Gettysburg
Associates II.
|
|
10
|
.77**
|
|
Second Addendum to Lease Agreement, dated April 13, 2009,
by and between Select Medical Corporation and Old Gettysburg
Associates II, LP.
|
|
10
|
.78
|
|
Office Lease Agreement, dated as of March 19, 2004, by and
between Select Medical Corporation and Old Gettysburg Associates
II, incorporated by reference to Exhibit 10.3 of Select Medical
Corporations Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2004 (Reg. No. 001-31441).
|
|
10
|
.79
|
|
Office Lease Agreement, dated as of March 19, 2004, by and
between Select Medical Corporation and Old Gettysburg
Associates, incorporated by reference to Exhibit 10.4 of Select
Medical Corporations Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2004 (Reg. No. 001-31441).
|
|
10
|
.80**
|
|
First Addendum to Lease Agreement, dated March 6, 2009, by
and between Old Gettysburg Associates II, LP and Select
Medical Corporation.
|
|
10
|
.81**
|
|
Second Addendum to Lease Agreement, dated April 13, 2009,
by and between Old Gettysburg Associates II, LP and Select
Medical Corporation.
|
|
10
|
.82
|
|
Office Lease Agreement, dated August 25, 2006, between Old
Gettysburg Associates IV, L.P. and Select Medical Corporation,
incorporated by reference to Exhibit 10.1 of Select Medical
Corporations Quarterly Report on
Form 10-Q
for the quarter ended September 30, 2006 (Reg. No.
001-31441).
|
|
10
|
.83
|
|
Office Lease Agreement, dated August 10, 2005, among Old
Gettysburg Associates II and Select Medical Corporation,
incorporated by reference to Exhibit 10.1 of Select Medical
Corporations Current Report on Form 8-K filed August 16,
2005 (Reg. No. 001-31441).
|
|
10
|
.84**
|
|
First Addendum to Lease Agreement, dated April 13, 2009, by
and between Old Gettysburg Associates II and Select Medical
Corporation.
|
|
10
|
.85**
|
|
Office Lease Agreement, dated October 5, 2006, by and between
Select Medical Corporation and Old Gettysburg Associates.
|
|
10
|
.86
|
|
Naming, Promotional and Sponsorship Agreement, dated as of
October 1, 1997, between NovaCare, Inc. and the Philadelphia
Eagles Limited Partnership, assumed by Select Medical
Corporation in a Consent and Assumption Agreement dated November
19, 1999 by and among NovaCare, Inc., Select Medical Corporation
and the Philadelphia Eagles Limited Partnership, incorporated by
reference to Exhibit 10.36 of Select Medical Corporations
Registration Statement on Form S-1 filed December 7, 2000
(Reg. No. 333-48856).
|
|
10
|
.87
|
|
First Amendment to Naming, Promotional and Sponsorship
Agreement, dated as of January 1, 2004, between Select Medical
Corporation and Philadelphia Eagles, LLC, incorporated by
reference to Exhibit 10.63 of Select Medical Corporations
Form S-4 filed June 16, 2005 (Reg. No. 333-125846).
|
|
10
|
.88**
|
|
Select Medical Holdings Corporation 2005 Equity Incentive Plan,
as amended and restated.
|
II-20
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.89**
|
|
Select Medical Holdings Corporation 2005 Equity Incentive Plan
for Non-Employee Directors, as amended and restated.
|
|
10
|
.90**
|
|
Select Medical Holdings Corporation Long Term Cash Incentive
Plan, as amended.
|
|
10
|
.91**
|
|
First Amendment to Select Medical Holdings Corporation Long Term
Cash Incentive Plan, dated as of August 20, 2008.
|
|
10
|
.92**
|
|
Second Amendment to Select Medical Holdings Corporation Long
Term Cash Incentive Plan, dated as of August 12, 2009.
|
|
10
|
.93**
|
|
Second Amendment to Employment Agreement, dated as of
October 26, 2001 between Select Medical Corporation and
David W. Cross.
|
|
10
|
.94**
|
|
Third Amendment to Employment Agreement, dated as of
November 1, 2002 between Select Medical Corporation and
David W. Cross.
|
|
10
|
.95**
|
|
Fourth Amendment to Employment Agreement, dated as of
December 31, 2003 between Select Medical Corporation and
David W. Cross.
|
|
10
|
.96**
|
|
Amendment No. 6 to Employment Agreement between Select Medical
Corporation and Rocco A. Ortenzio.
|
|
10
|
.97**
|
|
Amendment No. 6 to Employment Agreement between Select Medical
Corporation and Robert A. Ortenzio.
|
|
10
|
.98**
|
|
Amendment No. 7 to Employment Agreement between Select Medical
Corporation and Patricia A. Rice.
|
|
10
|
.99**
|
|
Sixth Amendment to Employment Agreement between Select Medical
Corporation and David W. Cross.
|
|
10
|
.100**
|
|
Second Amendment to Change of Control Agreement between Select
Medical Corporation and David W. Cross.
|
|
10
|
.101**
|
|
Third Amendment to Change of Control Agreement between Select
Medical Corporation and Michael E. Tarvin.
|
|
10
|
.102**
|
|
Third Amendment to Change of Control Agreement between Select
Medical Corporation and James J. Talalai.
|
|
10
|
.103**
|
|
Third Amendment to Change of Control Agreement between Select
Medical Corporation and Scott A. Romberger.
|
|
10
|
.104**
|
|
Third Amendment to Change of Control Agreement between Select
Medical Corporation and Martin F. Jackson.
|
|
10
|
.105**
|
|
Third Amendment to Change of Control Agreement between Select
Medical Corporation and S. Frank Fritsch.
|
|
10
|
.106
|
|
Amendment No. 1, dated as of September 26, 2005, to Credit
Agreement, dated as of February 24, 2005, among Select Medical
Holdings Corporation, Select Medical Corporation, as Borrower,
the Lenders party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent and Collateral Agent, Wachovia Bank,
National Association, as Syndication Agent and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and CIBC Inc., as
Co-Documentation Agents, incorporated by reference to Exhibit
10.2 of Select Medical Corporations Quarterly Report on
Form 10-Q for the quarter ended September 30, 2005 (Reg.
No. 001-31441).
|
|
10
|
.107
|
|
Amendment No. 2 and Waiver, dated as of March 19, 2007, to
Credit Agreement, dated as of February 24, 2005, among Select
Medical Holdings Corporation, Select Medical Corporation, as
Borrower, the Lenders party thereto, JPMorgan Chase Bank, N.A.,
as Administrative Agent and Collateral Agent, Wachovia Bank,
National Association, as Syndication Agent and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and CIBC Inc., as
Co-Documentation Agents, incorporated by reference to Exhibit
10.1 of Select Medical Corporations Current Report on Form
8-K filed March 23, 2007 (Reg. No. 001-31441).
|
|
10
|
.108
|
|
Incremental Facility Amendment, dated as of March 28, 2007, to
Credit Agreement, dated as of February 24, 2005, among
Select Medical Holdings Corporation, Select Medical Corporation,
as Borrower, the Lenders party thereto, JPMorgan Chase Bank,
N.A., as Administrative Agent and Collateral Agent, Wachovia
Bank, National Association, as Syndication Agent and Merrill
Lynch, Pierce, Fenner & Smith Incorporated and CIBC Inc.,
as Co-Documentation Agents, incorporated by reference to Exhibit
10.1 of Select Medical Corporations Current Report on Form
8-K filed March 30, 2007 (Reg. No. 001-31441).
|
II-21
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.109**
|
|
Amendment No. 3, dated as of August 5, 2009, to Credit
Agreement, dated as of February 24, 2005, among Select
Medical Holdings Corporation, Select Medical Corporation, as
Borrower, the Lenders party thereto, JPMorgan Chase Bank, N.A.,
as Administrative Agent and Collateral Agent, Wachovia Bank,
National Association, as Syndication Agent and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and CIBC Inc., as
Co-Documentation Agents.
|
|
10
|
.110
|
|
Indenture governing
7
5
/
8
% Senior
Subordinated Notes due 2015 among Select Medical Corporation,
the Guarantors named therein and U.S. Bank Trust National
Association, dated February 24, 2005, incorporated by reference
to Exhibit 4.4 of Select Medical Corporations Form S-4
filed June 16, 2005 (Reg. No. 333-125846).
|
|
10
|
.111
|
|
Form of
7
5
/
8
% Senior
Subordinated Notes due 2015 (included in Exhibit 4.4),
incorporated by reference to Select Medical Corporations
Form S-4 filed June 16, 2005 (Reg. No. 333-125846).
|
|
10
|
.112
|
|
Exchange and Registration Rights Agreement, dated as of February
24, 2005, by and among Select Medical Corporation, the
Guarantors named therein, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, J.P. Morgan Securities Inc., Wachovia
Capital Markets, LLC, CIBC World Markets Corp. and PNC Capital
Markets, Inc., incorporated by reference to Exhibit 4.6 of
Select Medical Corporations Form S-4 filed June 16,
2005 (Reg. No. 333-125846).
|
|
10
|
.113
|
|
Registration Rights Agreement, dated as of February 24, 2005,
between Select Medical Holdings Corporation, WCAS Capital
Partners IV, L.P., Rocco A. Ortenzio, Robert A. Ortenzio, John
M. Ortenzio, Martin J. Ortenzio, Martin J. Ortenzio Descendants
Trust and Ortenzio Family Foundation, incorporated by reference
to Exhibit 10.78 of Select Medical Holdings
Corporations Form S-4 filed April 13, 2006 (Reg. No.
333-133284).
|
|
10
|
.114
|
|
Indenture governing Senior Floating Rate Notes due 2015 among
Select Medical Holdings Corporation and U.S. Bank Trust National
Association, dated September 29, 2005, incorporated by reference
to Exhibit 4.7 of Select Medical Holdings Corporations
Form S-4 filed April 13, 2006 (Reg. No. 333-133284).
|
|
10
|
.115
|
|
Form of Senior Floating Rate Notes due 2015 (included in
Exhibit 4.7), incorporated by reference to Select Medical
Holdings Corporations Form S-4 filed April 13, 2006 (Reg.
No. 333-133284).
|
|
10
|
.116
|
|
Exchange and Registration Rights Agreement, dated as of
September 29, 2005, by and among Select Medical Holdings
Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Wachovia Capital Markets, LLC and J.P. Morgan
Securities Inc., incorporated by reference to Exhibit 4.9 of
Select Medical Holdings Corporations Form S-4 filed April
13, 2006 (Reg. No. 333-133284).
|
|
10
|
.117
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of WCAS Capital Partners IV, L.P., amended and restated as of
September 29, 2005, incorporated by reference to Exhibit 10.69
of Select Medical Holdings Corporations Form S-4 filed
April 13, 2006 (Reg. No. 333-133284).
|
|
10
|
.118
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of Rocco A. Ortenzio, amended and restated as of September 29,
2005, incorporated by reference to Exhibit 10.70 of Select
Medical Holdings Corporations Form S-4 filed April 13,
2006 (Reg. No. 333-133284).
|
|
10
|
.119
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of Robert A. Ortenzio, amended and restated as of September 29,
2005, incorporated by reference to Exhibit 10.71 of Select
Medical Holdings Corporations Form S-4 filed April 13,
2006 (Reg. No. 333-133284).
|
|
10
|
.120
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of John M. Ortenzio, amended and restated as of September 29,
2005, incorporated by reference to Exhibit 10.72 of Select
Medical Holdings Corporations Form S-4 filed April 13,
2006 (Reg. No. 333-133284).
|
|
10
|
.121
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of Martin J. Ortenzio, amended and restated as of September 29,
2005, incorporated by reference to Exhibit 10.73 of Select
Medical Holdings Corporations Form S-4 filed April 13,
2006 (Reg. No. 333-133284).
|
|
10
|
.122
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of Martin J. Ortenzio Descendants Trust, amended and restated as
of September 29, 2005, incorporated by reference to Exhibit
10.74 of Select Medical Holdings Corporations Form S-4
filed April 13, 2006 (Reg. No. 333-133284).
|
II-22
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
10
|
.123
|
|
10% Senior Subordinated Note due December 31, 2015 in favor
of Ortenzio Family Foundation, amended and restated as of
September 29, 2005, incorporated by reference to Exhibit 10.75
of Select Medical Holdings Corporations Form S-4 filed
April 13, 2006 (Reg. No. 333-133284).
|
|
10
|
.124
|
|
Letter Agreement, dated November 12, 2007, by and among Select
Medical Corporation, SLMC Finance Corporation, Cedar Cliff
Acquisition Corporation, CORA Health Services, Inc. and Brad C.
Roush, as Stockholders Agent, incorporated by reference to
Exhibit 99.1 of Select Medical Corporations Current Report
on Form 8-K filed November 13, 2007 (Reg. No. 001-31441).
|
|
10
|
.125
|
|
Letter Agreement, dated June 7, 2007, by and among Select
Medical Corporation, Nexus Health Systems, Inc., Neurobehavioral
Management Services L.L.C., and Nexus Health Inc, incorporated
by reference to Exhibit 99.1 of Select Medical
Corporations Current Report on Form 8-K filed June 8, 2007
(Reg. No. 001-31441).
|
|
21
|
.1**
|
|
Subsidiaries of Select Medical Holdings Corporation.
|
|
23
|
.1**
|
|
Consent of PricewaterhouseCoopers LLP.
|
|
23
|
.2
|
|
Consent of Dechert LLP (included in Exhibit 5.1).
|
|
24
|
.1**
|
|
Powers of Attorney (see signature pages to Amendment No. 1
to the Registration Statement).
|
|
24
|
.2**
|
|
Power of Attorney for James S. Ely III.
|
* To be filed by
amendment.
** Previously filed.
II-23
Exhibit 1.1
Shares
Select Medical Holdings Corporation
Common Stock, par value $0.001 per share
UNDERWRITING AGREEMENT
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center
New York, New York 10080
J.P. Morgan Securities Inc.
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Select Medical Holdings Corporation, a Delaware corporation (the
Company
), proposes to issue
and sell to the several Underwriters named in Schedule I hereto (the
Underwriters
) an aggregate
of shares of the common stock, par value $0.001 per share, of the Company (the
Firm Shares
).
The
Company also proposes to issue and sell to the several Underwriters not more than an additional shares of its common stock, par value $0.001 per share (the
Additional Shares
), if and
to the extent that you, as managers of the offering, shall have determined to exercise, on behalf
of the Underwriters, the right to purchase such shares of common stock granted to the Underwriters
in Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the
Shares
. The shares of common stock, par value $0.001 per share, of the Company
to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to
as the
Common Stock
.
The Company has filed with the Securities and Exchange Commission (the
Commission
) a
registration statement on Form S-1, as amended (No. 333-152514), including a prospectus, relating
to the Shares. The registration statement
as amended at the time it becomes effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the
Securities Act
), is hereinafter referred to as the
Registration Statement
; the prospectus in the form first used to confirm sales of Shares (or in
the form first made available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the
Prospectus
. If
the Company has filed an abbreviated registration statement to register additional shares of Common
Stock pursuant to Rule 462(b) under the Securities Act (the
Rule 462 Registration Statement
),
then any reference herein to the term
Registration Statement
shall be deemed to include such Rule
462 Registration Statement.
For purposes of this Agreement,
free writing prospectus
has the meaning set forth in Rule
405 under the Securities Act,
Time of Sale Prospectus
means the preliminary prospectus together
with the free writing prospectuses, if any, each identified in Schedule II hereto, and
broadly
available road show
means a bona fide electronic road show as defined in Rule 433(h)(5) under
the Securities Act that has been made available without restriction to any person. As used herein,
the terms Registration Statement, preliminary prospectus, Time of Sale Prospectus and
Prospectus shall include the documents, if any, incorporated by reference therein.
Merrill Lynch, Pierce, Fenner & Smith Incorporated (
Merrill Lynch
) has agreed to reserve a
portion of the Shares to be purchased by it under this Agreement for sale to the Companys
directors, officers, employees and business associates and other parties related to the Company
(collectively,
Participants
), as set forth in the Prospectus under the heading Underwriters
(the
Directed Share Program
). The Shares to be sold by Merrill Lynch and its affiliates pursuant
to the Directed Share Program are referred to hereinafter as the
Directed Shares.
Any Directed
Shares not confirmed orally or in writing for purchase by any Participant by the end of the
business day on which this Agreement is executed will be offered to the public by the Underwriters
as set forth in the Prospectus.
1.
Representations and Warranties of the Company
. The Company represents and warrants to and
agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not contain and, as amended
or supplemented, if applicable, as of the date of such amendment or supplement will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make
2
the statements therein not misleading, (ii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, as of the date of such amendment or
supplement will comply in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at
the time of each sale of the Shares in connection with the offering when the Prospectus is not yet
available to prospective purchasers and at the Closing Date (as defined in Section 4 hereof), the
Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not,
contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading, (iv) each broadly available road show, if any, when considered together with the Time
of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (v) the Prospectus does not contain and, as amended or
supplemented, if applicable, as of the date of such amendment or supplement will not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading
and (vi) each free writing prospectus, if any, identified in Schedule II hereto, and any broadly
available road show does not conflict with the information then contained in the Registration
Statement, the Time of Sale Prospectus or the Prospectus, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions in the Registration
Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you expressly for use
therein.
(c) The Company is not an ineligible issuer in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule II hereto, and electronic road shows, if any, each furnished to you before
first use, the Company has not prepared, used or referred to, and will not, without your prior
consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to
3
conduct its business as described in the Time of Sale Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(e) Each of the Companys significant subsidiaries within the meaning of Rule 1-02 of
Regulation S-X under the Securities Exchange Act of 1934, as amended (the
Exchange Act
) (each, a
Material Subsidiary
) has been duly organized, is validly existing as a corporation, limited
liability company or partnership in good standing under the laws of the jurisdiction of its
organization, has the corporate, limited liability company, or partnership power and authority to
own its property and to conduct its business as described in the Time of Sale Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of
capital stock or other equity interests of each Material Subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and are owned directly by the
Company or through subsidiaries of the Company, free and clear of all liens, encumbrances, equities
or claims, except for any lien or encumbrance in connection with the Credit Agreement (the
Credit
Agreement
), dated as of February 24, 2005, as subsequently amended, among Select Medical Holdings
Corporation, Select Medical Corporation, as Borrower, the Lenders party thereto, JPMorgan Chase
Bank, N.A., as Administrative Agent and Collateral Agent, Wachovia Bank, National Association, as
Syndication Agent and Merrill Lynch and CIBC Inc., as Co-Documentation Agents, and (ii) equity
interests owned by minority investors in non-wholly owned subsidiaries.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of the Shares to be sold by
the Company have been duly authorized and are validly issued, fully paid and nonassessable.
(i) The Shares to be sold by the Company have been duly authorized and, when issued and
delivered by the Company and paid for in accordance with the terms of this Agreement, will be
validly issued, fully paid and nonassessable, and the issuance of such Shares will not be subject
to any preemptive or similar rights.
4
(j) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene: (i) any provision of applicable law, (ii)
the certificate of incorporation or by-laws of the Company, (iii) any agreement or other instrument
binding upon the Company or any of its subsidiaries, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any subsidiary, except
in the case of clauses (i), (iii) and (iv) above, where such contravention would not, singly or in
the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a
whole, or on the power and ability of the Company to perform its obligations under this Agreement
or to consummate the transactions contemplated by the Time of Sale Prospectus. No consent,
approval, authorization or order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this Agreement, except such as
(X) have been obtained and made or (Y) may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Shares and the rules and regulations of
the Financial Industry Regulatory Authority (
FINRA
).
(k) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus.
(l) There are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject (a) other than proceedings (i)
accurately described in all material respects in the Time of Sale Prospectus, (ii) that would not
have a material adverse effect on the Company and its subsidiaries, taken as a whole, or (iii) that
would not have a material adverse effect on the power or ability of the Company to perform its
obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale
Prospectus or (b) that are required to be described in the Registration Statement or the Prospectus
and are not so described; and there are no statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as required.
(m) Each preliminary prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the
5
Prospectus will not be, required to register as an investment company as such term is
defined in the Investment Company Act of 1940, as amended.
(o) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(
Environmental Laws
), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(p) To the knowledge of the Company, neither the Company nor its subsidiaries have any
outstanding obligation to incur costs pursuant to or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required for the clean-up or
closure of properties pursuant to Environmental Laws or compliance with Environmental Laws,
including any permit, license, approval or any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the aggregate, reasonably be
expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(q) Except as described in the Time of Sale Prospectus and the Prospectus, there are no
contracts, agreements or understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the Securities Act with respect
to any securities of the Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
(r) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any
director, officer, employee, agent or representative of the Company or of any of its subsidiaries,
has taken any action on behalf of the Company in furtherance of an offer, payment, promise to pay,
or authorization or approval of the payment or giving of money, property, gifts or anything else of
value, directly or indirectly, to any government official (including any officer or employee of a
government or government-owned or controlled entity or of a public international organization, or
any person acting in an official capacity for or on behalf of any of the foregoing, or any
political party or party official or candidate for political office) to influence official action
or secure an improper advantage; and the Company and its subsidiaries have conducted their
businesses in compliance with applicable anti-corruption laws to which they may be subject.
6
(s) (i) The Company represents that neither the Company nor any of its subsidiaries
(collectively, the
Entity
) or, to the knowledge of the Entity, any director, officer or employee
of the Entity, is an individual or entity (
Person
) that is, or is owned or controlled by a Person
that is the subject of any sanctions administered or enforced by the U.S. Department of Treasurys
Office of Foreign Assets Control (
OFAC
) (
Sanctions
).
(ii) Without precedential effect, except as to proceeds used for the Entitys repayment of
its senior secured credit facility, 7 5/8% senior subordinated notes or senior floating rate notes
to the Underwriters or affiliates of the Underwriters, the Entity represents and covenants that it
will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other Person to
fund or facilitate any activities or business of or with any Person or in any country or territory
that, at the time of such funding or facilitation, is the subject of Sanctions.
(t) Subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus: (i) the Company and its
subsidiaries have not incurred any material liability or obligation, direct or contingent, nor
entered into any material transaction, (ii) the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends and (iii) there has not been any material
change in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries,
except in each case as described in each of the Registration Statement, the Time of Sale Prospectus
and the Prospectus, respectively.
(u) The Company and its subsidiaries have good title in fee simple to all real property and
good title to all personal property owned by them which is material to the business of the Company
and its subsidiaries, in each case free and clear of all liens, encumbrances and defects except
such as (i) are described in the Time of Sale Prospectus or (ii) would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and any real property and buildings
held under lease by the Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, in each case except as described in the Time of Sale
Prospectus.
(v) The Company and its subsidiaries own or possess, or, to the knowledge of the Company, can
acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now operated by them. Neither the
Company nor any of its Material Subsidiaries has received any
7
unresolved notice of infringement of or conflict with the intellectual property rights of
others with respect to any of the foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(w) No material labor dispute with the employees of the Company or any of its subsidiaries
exists, except as described in the Time of Sale Prospectus, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers or contractors that would reasonably
be expected to have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(x) The Company and each of its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as the Company believes are
prudent and customary in the businesses in which they are engaged; neither the Company nor any of
its subsidiaries has been refused any material insurance coverage sought or applied for since
January 1, 2005; and neither the Company nor any of its subsidiaries has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to continue its business at a
cost that would not have a material adverse effect on the Company and its subsidiaries, taken as a
whole, except as described in the Time of Sale Prospectus.
(y) The Company and its subsidiaries possess all certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, including, without limitation, such certificates, authorizations and
permits as are required (i) under such federal and state healthcare laws as are applicable to the
Company and such subsidiary and (ii) with respect to those facilities operated by the Company or
any of its subsidiaries that participate in Medicare and/or Medicaid, to receive reimbursement
thereunder, except in the case of clauses (i) and (ii) above where the failure to possess such
certificates, authorizations and permits would not reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole, and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole, except as described in the Time of Sale
Prospectus. The Company and each of its subsidiaries have fulfilled and performed all of their
obligations with respect to such certificates, authorizations and permits, except for such
instances which would not have a material adverse effect on the Company and its subsidiaries, taken
as a whole, and no event or change in condition has occurred which allows, or after notice or lapse
of time would allow, revocation or termination of any such
8
certificates, authorizations and permits or result in any other material impairment of the
rights of the holder thereof, except for such instances as may be set forth in the Time of Sale
Prospectus and the Prospectus or which would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole. Except for any specialty hospitals or outpatient
rehabilitation facilities under development as of the date hereof or as disclosed in the Time of
Sale Prospectus, all of the specialty hospitals and substantially all of the outpatient
rehabilitation facilities operated by the Company and its subsidiaries are eligible to participate
in the Medicare program.
(z) Neither the Company nor any of its subsidiaries has failed to file with applicable
regulatory authorities any statement, report, information or form required by any applicable law,
regulation or order, except to the extent that the failure to so file would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole, and all such filings or
submissions were in compliance with applicable laws when filed and no deficiencies have been
asserted by any regulatory commission, agency or authority with respect to any such filings or
submissions, except to the extent that such non-compliance or deficiency would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(aa) During the period for which financial statements are included in the Time of Sale
Prospectus and the Prospectus, denials by third party payors of claims for reimbursement for
services rendered by the Company have not had a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(bb) Neither the Company nor any of its subsidiaries has received any written notice from a
federal health care program, including but not limited to Medicare and Medicaid, or other managed
care insurer seeking, threatening, requesting or claiming recoupment against the Company or any of
its subsidiaries, except (i) for claims rejected or payments recouped in the ordinary course of
business or (ii) to the extent that such recoupment would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(cc) The accounts receivable of the Company and its subsidiaries have been and will continue
to be adjusted to reflect reimbursement policies of third party payors such as Medicare, Medicaid,
private insurance companies, health maintenance organizations, preferred provider organizations,
managed care systems and other third party payors in accordance with generally accepted accounting
principles. The accounts receivable relating to such third party payors do not and shall not
exceed amounts the Company and its subsidiaries estimate that they are entitled to receive, subject
to adjustments to reflect reimbursement policies of third party payors and normal discounts in the
ordinary course of business.
(dd) None of the Company, its subsidiaries nor, to the knowledge of the Company, any of their
respective officers, directors, stockholders, employees or
9
agents, has engaged on behalf of the Company or such subsidiary in any of the following: (A)
knowingly and willfully making or causing to be made a false statement or representation of a
material fact in any applications for any benefit or payment under the Medicare or Medicaid program
or from any third party (where applicable federal or state law prohibits such payments to third
parties), (B) knowingly and willfully making or causing to be made any false statement or
representation of a material fact for use in determining rights to any benefit or payment under the
Medicare or Medicaid program or from any third party (where applicable federal or state law
prohibits such payments to third parties), (C) knowingly and willfully failing to disclose
knowledge by a claimant of the occurrence of any event affecting the initial or continued right to
any benefit or payment under the Medicare or Medicaid program or from any third party (where
applicable federal or state law prohibits such payments to third parties) on its own behalf or on
behalf of another, with intent to secure such benefit or payment fraudulently or (D) knowingly and
willfully offering, paying, soliciting or receiving any remuneration (including any kickback, bribe
or rebate), directly or indirectly, overtly or covertly, in cash or in kind (1) in return for
referring an individual to a person for the furnishing or arranging for the furnishing of any item
or service for which payment may be made in whole or in part by Medicare or Medicaid or any third
party (where applicable federal or state law prohibits such payments to third parties) or (2) in
return for purchasing, leasing or ordering or arranging for or recommending the purchasing, leasing
or ordering of any good, facility, service or item for which payment may be made in whole or in
part by Medicare or Medicaid or any third party (where applicable federal or state law prohibits
such payments to third parties), except in each of clauses (A)-(D) above where such activities
would not reasonably be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(ee) The Company and each of its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
managements general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with managements general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as described in the Time of
Sale Prospectus, since the end of the Companys most recent audited fiscal year, there has been (i)
no material weakness in the Companys internal control over financial reporting (whether or not
remediated) and (ii) no change in the Companys internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Companys internal control
over financial reporting.
(ff) Except as described in the Time of Sale Prospectus, the Company has not sold, issued or
distributed any shares of Common Stock during the six-
10
month period preceding the date hereof,
including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock option plans or other
employee compensation plans or pursuant to outstanding options, rights or warrants.
(gg) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (
ERISA
), that is maintained, administered or contributed
to by the Company or any of its affiliates for employees or former employees of the Company has
been maintained in all material respects in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including ERISA and the Internal Revenue Code
of 1986, as amended (the
Code
). No prohibited transaction, within the meaning of Section 406 of
ERISA or Section 4975 of the Code, has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption and transactions with
respect to which no material liability to the Company has occurred or could reasonably be expected
to occur, either individually or in the aggregate; and no such employee benefit plan is subject to
the funding rules of Section 412 of the Code or Section 302 of ERISA.
(hh) Neither the Company nor any of its Material Subsidiaries is in (i) violation of its
certificate of incorporation or by-laws or (ii) default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any indenture, mortgage,
deed of trust, credit agreement or other agreement or instrument to which it is a party or by which
it is bound or to which any of its property or assets is subject, except for any default described
in clause (ii) above which would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(ii) The Registration Statement, the Prospectus, the Time of Sale Prospectus and any
preliminary prospectus comply, and any amendments or supplements thereto, if applicable, as of the
date of such amendment or supplement will comply in all material respects with any applicable laws
or regulations of foreign jurisdictions in which the Prospectus, the Time of Sale Prospectus or any
preliminary prospectus, as amended or supplemented, if applicable, are distributed in connection
with the Directed Share Program.
(jj) No consent, approval, authorization or order of, or qualification with, any governmental
body or agency, other than those obtained, is required in connection with the offering of the
Directed Shares in any jurisdiction where the Directed Shares are being offered, except (i) such as
have been obtained and made or (ii) such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Shares and the rules and
regulations of FINRA.
11
(kk) The Company has not offered, or caused Merrill Lynch to offer, Shares to any person
pursuant to the Directed Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customers or suppliers level or type of business
with the Company or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
2.
Agreements to Sell and Purchase
. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Company at $ a share (the
Purchase Price
)
the number of Firm Shares (subject to such adjustments to eliminate fractional shares as you may
determine) set forth in Schedule I hereto opposite the name of such Underwriter.
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and
the Underwriters shall have the right to purchase, severally and not
jointly, up to Additional
Shares at the Purchase Price. Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated, Merrill
Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities Inc. (the
Representatives
)
may exercise this right on behalf of the Underwriters in whole or from time to time in part by
giving written notice to the Company not later than 30 days after the date of this Agreement. Any
exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters
and the date on which such shares are to be purchased. Each purchase date must be at least one
full business day after the written notice to the Company is given and may not be earlier than the
closing date for the Firm Shares nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 4 hereof solely for the purpose of
covering over-allotments, if any, made in connection with the offering of the Firm Shares. On each
day, if any, that Additional Shares are to be purchased (an
Option Closing Date
), each
Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject
to such adjustments to eliminate fractional shares as you may determine) that bears the same
proportion to the total number of Additional Shares to be purchased on such Option Closing Date as
the number of Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter
bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of two of the four
Representatives on behalf of the Underwriters, it will not, during the period ending 180 days after
the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for Common Stock or
12
(2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise or (3) file any registration statement with the Commission relating to the
offering of any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock.
The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be
sold hereunder, (b) the issuance by the Company of shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing, (c) the issuance by the Company of options to purchase
shares of Common Stock under stock option or similar plans as in effect on the date of this
Agreement and as described in the Time of Sale Prospectus, (d) the establishment of a trading plan pursuant to Rule
10b5-1 under the Exchange Act for the transfer of shares of Common Stock,
provided
that such plan
does not provide for the transfer of Common Stock during the 180-day restricted period or (i) the
filing by the Company of any registration statement on Form S-8 with the Commission relating to the
offering of securities pursuant to terms of a stock option or similar plan in effect on the date of
this Agreement and as described in the Time of Sale Prospectus. Notwithstanding the foregoing, if
(1) during the last 17 days of the 180-day restricted period the Company issues an earnings release
or material news or a material event relating to the Company occurs; or (2) prior to the expiration
of the 180-day restricted period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 180-day period, the restrictions imposed
by this agreement shall continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the occurrence of the material news or material event. The
Company shall promptly notify the Representatives of any earnings release, news or event that may
give rise to an extension of the initial 180-day restricted period.
3.
Terms of Public Offering
. The Company is advised by you that the Underwriters propose to
make a public offering of the Shares as soon after the Registration Statement and this Agreement
have become effective as in your judgment is advisable. The Company is further advised by you that
the Shares are to be offered to the public initially at $ a share (the
Public Offering Price
) and
to certain dealers selected by you at a price that represents a concession not in excess of $ a
share under the Public Offering Price. The Public Offering Price of the Shares is not in excess of
the price recommended by Goldman, Sachs & Co., acting as a qualified independent underwriter
within the meaning of Rule 2720 of the Rules of Conduct of the National Association of Securities
Dealers, Inc.
The Company hereby confirms its engagement of Goldman, Sachs & Co. as, and Goldman, Sachs & Co.
hereby confirms its agreement with the Company
13
to render services as, a qualified independent underwriter within the meaning of Rule
2720(f)(12) of the Financial Industry Regulatory Authority (FINRA) with respect to the offering
and sale of the Shares. Goldman, Sachs & Co., in its capacity as qualified independent underwriter
and not otherwise, is referred to herein as the qualified independent underwriter.
4.
Payment and Delivery
. Payment for the Firm Shares shall be made to the Company in Federal
or other funds immediately available in New York City by wire transfer as designated by the Company
against delivery of such Firm Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on , 2009, or at such other time on the same or such other date,
not later than , 2009, as shall be designated in writing by you. The time and date of such payment
are hereinafter referred to as the
Closing Date
.
Payment for any Additional Shares shall be made to the Company in Federal or other funds
immediately available in New York City by wire transfer as designated by the Company against
delivery of such Additional Shares for the respective accounts of the several Underwriters at 10:00
a.m., New York City time, on the date specified in the corresponding notice described in Section 2
hereof or at such other time on the same or on such other date, in any event not later than , 2009,
as shall be designated in writing by you.
The Firm Shares and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you on the Closing Date or an Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly paid, against
payment of the Purchase Price therefor.
5.
Conditions to the Underwriters Obligations
. The obligations of the Company to sell the
Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for
the Shares on the Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the
14
possible change, in the rating accorded any of the securities of the Company or any
of its subsidiaries by any nationally recognized statistical rating organization, as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to market the
Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Sections 5(a)(i)
and 5(a)(ii) above and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon his or her knowledge as to
prospective changes and proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of Dechert LLP,
outside counsel for the Company, dated the Closing Date, to the effect set forth on Exhibit B
hereto.
(d) The Underwriters shall have received on the Closing Date an opinion, of Michael E. Tarvin,
General Counsel of the Company, dated the Closing Date, substantially in the form attached as
Exhibit C hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Reed Smith LLP,
special regulatory counsel for the Company, dated the Closing Date, to the effect set forth on
Exhibit D hereto.
(f) The Underwriters shall have received on the Closing Date an opinion of Davis Polk &
Wardwell LLP, counsel for the Underwriters, dated the Closing Date, covering such matters as the
Underwriters may reasonably request.
With respect to Sections 5(c) - 5(f) above, Dechert LLP, Reed Smith LLP or Davis Polk &
Wardwell LLP, as applicable, may state that their opinions and beliefs are based upon their
participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the
Prospectus and any amendments or supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification, except as specified.
15
The opinions described in Sections 5(c) 5(e) above shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from PricewaterhouseCoopers LLP, independent public accountants,
containing statements and information of the type ordinarily included in accountants comfort
letters to underwriters with respect to the financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus;
provided
that the letter delivered on the Closing Date shall use a cut-off date not earlier than the date
hereof.
(h) The lock-up agreements, each substantially in the form of Exhibit A hereto, between you
and certain stockholders, officers and directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities, delivered to you on or before
the date hereof, shall be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and other matters related
to the issuance of such Additional Shares,
provided
that such requested documents shall be of the
type customarily delivered in connection with the closing of the exercise of an option to purchase
additional shares in an underwritten offering and, to the extent applicable, shall be in
substantially the same form (with conforming changes as necessary) as the documents delivered in
connection with the Closing Date.
6.
Covenants of the Company
. The Company covenants with each Underwriter as follows:
(a) To furnish to you upon request, without charge, four signed copies of the Registration
Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy
of the Registration Statement (without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date
of this Agreement and during the period mentioned in Section 6(e) or 6(f) below, as many copies of
the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not
to file any such proposed amendment
16
or supplement to which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be
filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale Prospectus so that the statements in
the Time of Sale Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to
in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the reasonable
opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the
Company) to which Shares may have been sold by you on behalf of the
17
Underwriters and to any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus,
as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the (or obtain exemptions from
the application of) securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; provided, however, that the Company shall not be obligated to qualify or register as a
foreign corporation or as a dealer in securities or to take any action that would subject it to
general service of process in any such jurisdiction where it is not presently qualified or
registered or where it would be subject to taxation.
(h) To make generally available to the Companys security holders and to you as soon as
practicable an earnings statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) To comply with all applicable securities and other laws, rules and regulations in each
jurisdiction in which the Directed Shares are offered in connection with the Directed Share
Program.
7.
Expenses
. Whether or not the transactions contemplated in this Agreement are consummated
or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses
incident to the performance of their obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Companys counsel and the Companys accountants in connection
with the registration and delivery of the Shares under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus
prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements
to any of the foregoing, including all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the qualification of the
Shares for offer and sale under state securities laws as provided in Section 6(g) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky or Legal Investment
18
memorandum, (iv) all filing fees incurred in connection with the review and qualification of the offering of the Shares by
FINRA, (v) the reasonable fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the Shares by FINRA in an amount
that, taken together with any counsel fees pursuant to clause (vi) below, is not greater than
$30,000, (vi) any counsel fees reasonably incurred on behalf of or disbursements by Goldman, Sachs
& Co. in its capacity as qualified independent underwriter in an amount that, taken together with
any fess and disbursements of counsel pursuant to clause (v) above, is not greater than the amount
specified in clause (v) above, (vii) all fees and expenses in connection with the preparation and
filing of the registration statement on Form 8-A relating to the Common Stock and all costs and
expenses incident to listing the Shares on the New York Stock Exchange, (viii) the cost of printing
certificates representing the Shares, (ix) the costs and charges of any transfer agent, registrar
or depositary, (x) the costs and expenses of the Company relating to investor presentations on any
road show undertaken in connection with the marketing of the offering of the Shares, including,
without limitation, expenses associated with the preparation or dissemination of any electronic
road show, expenses associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and half of the cost of any aircraft chartered in connection with
the road show, (xi) the document production charges and expenses associated with printing this
Agreement, (xii) all fees and disbursements of counsel incurred by the Underwriters in connection
with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any,
incurred by the Underwriters in connection with the Directed Share Program and (xiii) all other
costs and expenses incident to the performance of the obligations of the Company hereunder for
which provision is not otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 9 entitled Indemnity and Contribution, Section 10 entitled
Directed Share Program Indemnification and the last paragraph of Section 13 below, the
Underwriters will pay all of their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by them, any advertising
expenses connected with any offers they may make and half of the cost of any aircraft chartered in
connection with the road show as described in clause (x) above.
8.
Covenants of the Underwriters
. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action of such
Underwriter.
19
9.
Indemnity and Contribution
. (a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter
within the meaning of Rule 405 under the Securities Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or the Prospectus or any amendment or supplement thereto, or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, the directors of the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free
writing prospectus or the Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b)
above, such person (the
indemnified
20
party
) shall promptly notify the person against whom such
indemnity may be sought (the
indemnifying party
) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the
Securities Act and (ii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either such Section, and that
all such fees and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons and affiliates of any Underwriters,
such firm shall be designated in writing by the Representatives. In the case of any such separate
firm for the Company, and such directors, officers and control persons of the Company, such firm
shall be designated in writing by the Company. Notwithstanding anything contained herein to the
contrary, if indemnity may be sought pursuant to Section 9(a) above in respect of such action or
proceeding, then in addition to such separate firm for the indemnified parties, the indemnifying
party shall be liable for the reasonable fees and expenses of not more than one separate firm (in
addition to any local counsel) for Goldman, Sachs & Co. in its capacity as a qualified independent
underwriter and all persons, if any, who control Goldman, Sachs & Co. within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act. The indemnifying party shall
not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i) such settlement is
21
entered into more than 30 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless (i) such settlement includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such proceeding and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 9(a) or 9(b) above is
unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party or parties on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause 9(d)(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 9(f)(i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net proceeds from the
offering of the Shares (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Company on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriters and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Underwriters respective obligations to contribute pursuant to this Section 9 are several in
proportion to the respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 9 were determined by
pro rata
allocation (even if the
Underwriters were treated as one entity for such purpose)
22
or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 9(d) above shall be deemed to include, subject to the limitations set forth
above, 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 9, no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such 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 remedies provided for in this Section 9 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 9 and the
representations, warranties and other statements of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter, any person controlling any
Underwriter or any affiliate of any Underwriter, or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of the Shares.
10.
Directed Share Program Indemnification.
(a) The Company agrees to indemnify and hold
harmless Merrill Lynch, each person, if any, who controls Merrill Lynch within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of
Merrill Lynch within the meaning of Rule 405 of the Securities Act (
Merrill Lynch Entities
) from
and against any and all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or investigating any such
action or claim) (i) caused by any untrue statement or alleged untrue statement of a material fact
contained in any material prepared by or with the consent of the Company for distribution to
Participants in connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) caused by the failure of any Participant to pay for and
accept delivery of Directed Shares that the Participant agreed to
purchase; (iii) arising out of the violation of any applicable
laws or regulations of foreign jurisdictions where the Directed Share
Program has been offered or (iv) related to,
arising out of, or in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally judicially determined to
have resulted from the willful misconduct, bad faith or gross negligence of Merrill Lynch Entities.
23
(b) In case any proceeding (including any governmental investigation) shall be instituted
involving any Merrill Lynch Entity in respect of which indemnity may be sought pursuant to Section
10(a) above, the Merrill Lynch Entity seeing indemnity, shall promptly notify the Company in
writing and the Company, upon request of the Merrill Lynch Entity, shall retain counsel reasonably
satisfactory to the Merrill Lynch Entity to represent the Merrill Lynch Entity and any others the
Company may designate in such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any Merrill Lynch Entity shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of
such Merrill Lynch Entity unless (i) the Company shall have agreed to the retention of such counsel
or (ii) the named parties to any such proceeding (including any impleaded parties) include both the
Company and the Merrill Lynch Entity and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. The Company shall
not, in respect of the legal expenses of the Merrill Lynch Entities in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all Merrill Lynch Entities. Any
such separate firm for the Merrill Lynch Entities shall be designated in writing by Merrill Lynch.
The Company shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the
Company agrees to indemnify the Merrill Lynch Entities from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time a
Merrill Lynch Entity shall have requested the Company to reimburse it for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the Company agrees
that it shall be liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by the Company of the
aforesaid request and (ii) the Company shall not have reimbursed the Merrill Lynch Entity in
accordance with such request prior to the date of such settlement. The Company shall not, without
the prior written consent of Merrill Lynch, effect any settlement of
any pending or threatened proceeding in respect of which any Merrill Lynch Entity is or could
have been a party and indemnity could have been sought hereunder by such Merrill Lynch Entity,
unless such settlement includes an unconditional release of the Merrill Lynch Entities from all
liability on claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 10(a) above is unavailable to a
Merrill Lynch or insufficient in respect of any losses, claims, damages or liabilities referred to
therein, then the Company in lieu of indemnifying the Merrill Lynch Entity thereunder, shall
contribute to the amount paid or payable by the Merrill Lynch Entity as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Merrill Lynch Entities on the other hand
from the offering of the Directed Shares or (ii) if the allocation
24
provided by clause 10(c)(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 10(c)(i) above but also
the relative fault of the Company on the one hand and of the Merrill Lynch Entities on the other
hand in connection with any statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Merrill Lynch Entities on the other hand in
connection with the offering of the Directed Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Directed Shares (before deducting
expenses) and the total underwriting discounts and commissions received by the Merrill Lynch
Entities for the Directed Shares, bear to the aggregate Public Offering Price of the Directed
Shares. If the loss, claim, damage or liability is caused by an untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact, the relative fault
of the Company on the one hand and the Merrill Lynch Entities on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue statement or the omission
or alleged omission relates to information supplied by the Company or by the Merrill Lynch Entities
and the parties relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(d) The Company and the Merrill Lynch Entities agree that it would not be just or equitable if
contribution pursuant to this Section 10 were determined by
pro rata
allocation (even if the
Merrill Lynch Entities were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in Section 10(c)
above. The amount paid or payable by the Merrill Lynch Entities as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses reasonably
incurred by the Merrill Lynch Entities in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 10, no Merrill Lynch Entity shall
be required to contribute any amount in excess of the amount by which the total price at which the
Directed Shares distributed to the public were offered to the public exceeds the amount of any
damages that such Merrill Lynch Entity has otherwise been required to pay. The remedies provided
for in this Section 10 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(e) The indemnity and contribution provisions contained in this Section 10 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Merrill Lynch Entity or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and payment for any of the
Directed Shares.
25
11.
Qualified Independent Underwriter Indemnification
. (a) The Company will indemnify and
hold harmless Goldman, Sachs & Co., in its capacity as qualified independent underwriter, against
any losses, claims, damages or liabilities, joint or several, to which the qualified independent
underwriter may become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i)
an untrue statement or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto,
(ii) 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 (iii) any act or omission to
act or any alleged act or omission to act by Goldman, Sachs & Co. as qualified independent
underwriter in connection with any transaction contemplated by this Agreement or undertaken in
preparing for the purchase, sale and delivery of the Shares, except to the extent that any such
loss, claim, damage or liability results from the willful misconduct, gross negligence or bad faith
of Goldman, Sachs & Co. in performing the services as qualified independent underwriter, and will
reimburse the qualified independent underwriter for any legal or other expenses reasonably incurred
by the qualified independent underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred.
(b) Promptly after receipt by the qualified independent underwriter under subsection (a) above
of notice of the commencement of any action, the qualified independent underwriter shall, if a
claim in respect thereof is to be made against the Company under such subsection, notify the
Company in writing of the commencement thereof; but the omission so to notify the Company shall not
relieve it from any liability which it may have to the qualified independent underwriter otherwise
than under such subsection. In case any such action shall be brought against the qualified
independent underwriter and it shall notify the Company of the commencement thereof, the Company
shall be entitled to participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with counsel
satisfactory to the qualified independent underwriter (who shall not, except with the consent of
the qualified independent underwriter, be counsel to the Company), and, after notice from the
indemnifying party to the qualified independent underwriter of its election so to assume the
defense thereof, the indemnifying party shall not be liable to the qualified independent
underwriter under such subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by the qualified independent underwriter, in connection with the
defense thereof other than reasonable costs of investigation. The Company shall not, without the
written consent of the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the qualified
independent underwriter is an actual or potential party to such action or
26
claim) unless such settlement, compromise or judgment (i) includes an unconditional release of
the qualified independent underwriter from all liability arising out of such action or claim and
(ii) does not include a statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of the qualified independent underwriter.
(c) To the extent the indemnification provided for in this Section 11
is unavailable to or insufficient to hold harmless Goldman, Sachs & Co., in its capacity as qualified independent
underwriter, under subsection (a) above in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then the Company shall contribute to the
amount paid or payable by the qualified independent underwriter as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the qualified independent
underwriter on the other hand from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable law or if the
qualified independent underwriter failed to give the notice required under subsection (b) above,
then the Company shall contribute to such amount paid or payable by the qualified independent
underwriter in such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the qualified independent underwriter on
the other hand in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the one hand and the
qualified independent underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the Company, as set
forth in the table on the cover page of the Prospectus, bear to the fee, if any, payable to the
qualified independent underwriter pursuant to Section 3 hereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the qualified independent underwriter on the other hand
and the parties relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the qualified independent underwriter agree
that it would not be just and equitable if contributions pursuant to this subsection (c) were
determined by pro rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (c). The amount paid or
payable by the qualified independent underwriter as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection (c) shall be
deemed to include any legal or other expenses reasonably incurred by the qualified independent
underwriter in connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to
27
contribution from any person who was not guilty of such fraudulent misrepresentation.
(d) The obligations of the Company under this Section 11 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the qualified independent underwriter within the meaning of the
Securities Act.
12.
Termination
. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on, or by, as the case may be,
either of the New York Stock Exchange or the NASDAQ Global Market, (ii) trading of any securities
of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in the United States
shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared
by Federal or New York State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities, or any change in financial markets or any calamity or crisis that, in
your judgment, is material and adverse and which, singly or together with any other event specified
in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed with the
offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Time of
Sale Prospectus or the Prospectus.
13.
Effectiveness; Defaulting Underwriters
. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite their respective
names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date;
provided
that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 13 by an
amount in excess of one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date,
and arrangements satisfactory to you and the Company for the purchase
28
of such Firm Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in the Registration
Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate number of Additional
Shares to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the
option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on
such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the absence of such default.
Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be validly terminated by the Underwriters, or any of them, in
accordance with the terms of this Agreement, and at such time the Company failed or refused to
comply with the terms or to fulfill any of the conditions of this Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect
to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of
their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the
offering contemplated hereunder.
14.
Entire Agreement
. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Shares, represents the entire agreement between the Company and the
Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Shares.
29
15.
Counterparts
. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
16.
Applicable Law
. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
17.
Headings
. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
18.
Notices.
All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you as Representatives in care of
Goldman, Sachs & Co., 85 Broad Street, 20
th
Floor, New York, NY 10004, Attention:
Registration Department; Morgan Stanley & Co. Incorporated, 1585 Broadway, New York, New York
10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department; Merrill Lynch,
Pierce, Fenner & Smith Incorporated, 4 World Financial Center, New York, New York 10080 (fax:
212-449-3207), Attention: Global Origination Counsel; and J.P. Morgan Securities Inc., 383 Madison
Avenue, New York, New York 10179 (fax: 212-622-8358), Attention: Equity Syndicate Desk.
and if to the Company shall be delivered, mailed or sent to:
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Select Medical Holdings Corporation
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4714 Gettysburg Road
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P.O. Box 2034
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Mechanicsburg, Pennsylvania 17055
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Attention: General Counsel
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with a copy to (which shall not constitute notice):
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Dechert LLP
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Cira Centre
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2929 Arch Street
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Philadelphia, PA 19104-2857
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Attention: Stephen M. Leitzell, Esq.
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30
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Very truly yours,
Select Medical Holdings Corporation
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By:
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Name:
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Title:
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31
Accepted as of the date hereof
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Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
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Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto
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By:
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Goldman, Sachs & Co.
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By:
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(Goldman, Sachs & Co.)
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By:
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Morgan Stanley & Co. Incorporated
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By:
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Name:
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Title:
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By:
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
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By:
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Name:
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Title:
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By:
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J.P. Morgan Securities Inc.
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By:
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Name:
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Title:
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32
Exhibit 3.4
SELECT MEDICAL HOLDINGS CORPORATION
AMENDED AND RESTATED BYLAWS
Table of Contents
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ARTICLE I STOCKHOLDERS
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1
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Section 1.1 Annual Meetings
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1
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Section 1.2 Special Meetings
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1
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Section 1.3 Notice of Meetings; Waiver
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1
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Section 1.4 Quorum
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1
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Section 1.5 Voting
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2
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Section 1.6 Voting by Ballot
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2
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Section 1.7 Adjournment
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2
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Section 1.8 Proxies
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2
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Section 1.9 Notice of Stockholder Business and Nominations
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3
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Section 1.10 Organization; Procedure
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5
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Section 1.11 Inspectors of Elections
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5
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Section 1.12 Opening and Closing of Polls
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6
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Section 1.13 No Stockholder Action by Written Consent or Telephone Conference
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6
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ARTICLE II BOARD OF DIRECTORS
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6
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Section 2.1 General Powers
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6
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Section 2.2 Number and Term of Office
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7
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Section 2.3 Election of Directors
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7
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Section 2.4 Annual and Regular Meetings
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7
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Section 2.5 Special Meetings; Notice
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7
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Section 2.6 Quorum; Voting
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8
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Section 2.7 Adjournment
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8
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Section 2.8 Action Without a Meeting
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8
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Section 2.9 Regulations; Manner of Acting
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9
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Section 2.10 Resignations
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9
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Section 2.11 Removal of Directors
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9
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Section 2.12 Vacancies and Newly Created Directorships
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9
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Section 2.13 Reliance on Accounts and Reports, etc
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9
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ARTICLE III COMMITTEES OF DIRECTORS AND ADVISORY BOARD
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10
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i
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Section 3.1 Committees of Directors
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10
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Section 3.2 Proceedings
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10
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Section 3.3 Quorum and Manner of Acting
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10
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Section 3.4 Action by Telephonic Communications
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10
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Section 3.5 Absent or Disqualified Members
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11
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Section 3.6 Resignations
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11
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Section 3.7 Removal
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11
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Section 3.8 Vacancies
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11
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ARTICLE IV OFFICERS
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11
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Section 4.1 Number
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11
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Section 4.2 Election
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11
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Section 4.3 Compensation
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11
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Section 4.4 Removal and Resignation; Vacancies
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12
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Section 4.5 Authority and Duties of Officers
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12
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Section 4.6 Chairman of the Board
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12
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Section 4.7 Vice Chairman of the Board
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12
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Section 4.8 Chief Executive Officer
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12
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Section 4.9 President
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13
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Section 4.10 Vice Presidents
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13
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Section 4.11 Secretary
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13
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Section 4.12 Assistant Secretary
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14
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Section 4.13 Treasurer
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14
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Section 4.14 Additional Officers
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14
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Section 4.15 Security
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14
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ARTICLE V CAPITAL STOCK
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14
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Section 5.1 Uncertificated Shares
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14
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Section 5.2 Signatures; Facsimile
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15
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Section 5.3 Lost, Stolen or Destroyed Certificates
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15
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Section 5.4 Transfer of Stock
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15
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Section 5.5 Record Date
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15
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Section 5.6 Registered Stockholders
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16
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ii
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Section 5.7 Transfer Agent and Registrar
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16
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ARTICLE VI INDEMNIFICATION
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16
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Section 6.1 Nature of Indemnity
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16
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Section 6.2 Successful Defense
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17
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Section 6.3 Determination that Indemnification is Proper
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17
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Section 6.4 Advance Payment of Expenses
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17
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Section 6.5 Procedure for Indemnification of Directors and Officers
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18
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Section 6.6 Survival; Preservation of Other Rights
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18
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Section 6.7 Insurance
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19
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Section 6.8 Severability
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19
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Section 6.9 Limitation on Liability
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19
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Section 6.10 Appearance as a Witness
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19
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Section 6.11 Indemnification of Employees and Agents
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19
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ARTICLE VII OFFICES
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20
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Section 7.1 Registered Office and Agent
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20
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Section 7.2 Other Offices
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20
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ARTICLE VIII GENERAL PROVISIONS
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20
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Section 8.1 Dividends
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20
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Section 8.2 Reserves
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20
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Section 8.3 Execution of Instruments
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20
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Section 8.4 Deposits
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21
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Section 8.5 Checks
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21
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Section 8.6 Sale, Transfer, etc. of Securities
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21
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Section 8.7 Voting as Stockholder
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21
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Section 8.8 Fiscal Year
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21
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Section 8.9 Seal
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21
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Section 8.10 Books and Records; Inspection
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21
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ARTICLE IX AMENDMENT OF BYLAWS
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22
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Section 9.1 Amendment
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22
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ARTICLE X CONSTRUCTION
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22
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Section 10.1 Construction
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22
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iii
ARTICLE I
STOCKHOLDERS
Section 1.1
Annual Meetings
. The annual meeting of the stockholders of the
Corporation for the election of Directors and for the transaction of such other business as
properly may come before such meeting, including, without limitation, for the purpose of the
delivery of an annual report of the Board of Directors, shall be held at such place, within or
without the State of Delaware, such date, and such time as designated by the Board of Directors and
set forth in the notice or waiver of notice of the meeting.
Section 1.2
Special Meetings
. Special meetings of the stockholders for any proper
purpose or purposes may be called at any time by the Chief Executive Officer, or pursuant to a
resolution approved by a majority of the entire Board of Directors. Such special meetings of the
stockholders shall be held at such places, within or without the State of Delaware, as shall be
specified in the respective notices or waivers of notice thereof. Only business within the purpose
or purposes described in the notice or waiver thereof required by these Bylaws may be conducted at
a special meeting of the stockholders. No stockholder shall have the power to require that a
meeting of the stockholders be held or that any matter be voted on by the stockholders at any
special meeting, except as required by law.
Section 1.3
Notice of Meetings; Waiver
.
(a) Written or printed notice of the place, date and hour of the meeting of the stockholders,
and, in the case of a special meeting, the purpose or purposes for which such meeting is called,
shall be delivered not less than ten nor more than sixty days prior to the meeting, either
personally or by mail, by or at the direction of the Board of Directors or person calling the
meeting, to each stockholder of record entitled to vote at such meeting. If such notice is mailed,
it shall be deemed to have been delivered to a stockholder on the third day after it is deposited
in the United States mail, postage prepaid, addressed to the stockholder at his or her address as
it appears on the record of stockholders of the Corporation, or, if he or she shall have filed with
the Secretary of the Corporation a written request that notices to him or her be mailed to some
other address, then directed to him or her at such other address. Such further notice shall be
given as may be required by law or otherwise by these Bylaws.
(b) No notice of any meeting of stockholders need be given to any stockholder who submits a
signed waiver of notice, whether before or after the meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the stockholders need be
specified in a written waiver of notice. The attendance of any stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting is not lawfully called or convened.
Section 1.4
Quorum
. Except as otherwise required by law or by the Restated
Certificate of Incorporation, a quorum shall be present at a meeting of stockholders if the holders
of record of more than 50% of the then outstanding shares entitled to vote at a meeting of the
stockholders are represented at the meeting in person or by proxy.
Section 1.5
Voting
. If, pursuant to Section 5.5 of these Bylaws, a record date has
been fixed, every holder of record of shares entitled to vote at a meeting of stockholders shall be
entitled to one vote, or such other number of votes as may be prescribed in a Preferred Stock
Certificate of Designation (as such term is defined in the Restated Certificate of Incorporation),
for each share outstanding in his or her name on the books of the Corporation at the close of
business on such record date. If no record date has been fixed, then every holder of record of
shares entitled to vote at a meeting of stockholders shall be entitled to one vote, or such other
number of votes as may be prescribed in a Preferred Stock Certificate of Designation, for each
share of stock standing in his or her name on the books of the Corporation at the close of business
on the business day next preceding the day on which notice of the meeting is given, or, if notice
is waived, at the close of business on the business day next preceding the day on which the meeting
is held. Except as otherwise required by law or by the Restated Certificate of Incorporation or by
these Bylaws, the vote of a majority of the shares represented in person or by proxy at any meeting
at which a quorum is present shall be sufficient for the transaction of any business at such
meeting.
Section 1.6
Voting by Ballot
. No vote of the stockholders need be taken by written
ballot unless otherwise required by law. Any vote which need not be taken by ballot may be
conducted in any manner approved by the chairman of the meeting.
Section 1.7
Adjournment
. The chairman of the meeting or the holders of record of more
than 50% of the then outstanding shares entitled to vote at a meeting of the stockholders shall
have the power to adjourn such meeting from time to time, without any notice other than
announcement at the meeting of the time and place of the holding of the adjourned meeting, provided
that if the adjournment is for more than thirty days, or if after the adjournment a new record date
for the adjourned meeting is fixed pursuant to Section 5.5 of these Bylaws, a notice of the
adjourned meeting, conforming to the requirements of Section 1.3 of these Bylaws, shall be given to
each stockholder of record entitled to vote at such meeting. If such meeting is adjourned by the
stockholders, the resumption of such meeting shall occur at such time and place as shall be
determined by a vote of the holders of record of more than 50% of the then outstanding shares
entitled to vote at such meeting of the stockholders. Upon the resumption of such adjourned
meeting, any business may be transacted that might have been transacted at the meeting as
originally called.
Section 1.8
Proxies
. Any stockholder entitled to vote at any meeting of the
stockholders or to express consent to or dissent from corporate action in writing without a meeting
may vote in person or may authorize another person or persons to vote at any such meeting and
express such consent or dissent for him or her by proxy executed in writing by the stockholder. A
stockholder may authorize a valid proxy by executing a written instrument signed by such
stockholder, or by causing his or her signature to be affixed to such writing by any reasonable
means, including, but not limited to, by facsimile signature or photographic,
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photostatic, or similar reproduction or by transmitting or authorizing the transmission of a
telegram or any other means of electronic communication that results in a writing to the person
designated as the holder of the proxy, a proxy solicitation firm or a like authorized agent. No
such proxy shall be voted or acted upon after the expiration of three years from the date of such
proxy unless such proxy provides for a longer period. A stockholder may revoke any proxy which is
not irrevocable by attending the meeting and voting in person or by filing an instrument in writing
revoking the proxy or by filing another duly executed proxy bearing a later date with the
Secretary. Proxies by telegram or other electronic communication must either set forth or be
submitted with information from which it can be determined that the telegram or other electronic
communication was authorized by the stockholder. Any copy, facsimile telecommunication or other
reliable reproduction of a writing or transmission created pursuant to this section may be
substituted or used in lieu of the original writing or transmission for any and all purposes for
which the original writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Section 1.9
Notice of Stockholder Business and Nominations
.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders may be made at an annual meeting of
stockholders (i) by or at the direction of the Board of Directors or the Chairman of the Board or
(ii) by any stockholder of the Corporation who is entitled to vote at the meeting, who complies
with the notice procedures set forth in clauses (2) and (3) of this paragraph and who was a
stockholder of record at the time such notice is delivered to the Secretary or any Assistant
Secretary of the Corporation.
(2) For nominations or other business to be properly brought before an annual meeting by a
stockholder, pursuant to clause (ii) of paragraph (A)(1) of this Bylaw, the stockholder must have
given timely notice thereof in writing to the Secretary or any Assistant Secretary of the
Corporation. To be timely, a stockholders notice shall be delivered to the Secretary or any
Assistant Secretary at the principal executive offices of the Corporation not less than ninety days
nor more than one hundred and twenty days prior to the first anniversary of the preceding years
annual meeting; provided, that if the date of the annual meeting is advanced by more than twenty
days or delayed by more than seventy days from such anniversary date, notice by the stockholder to
be timely must be so delivered not earlier than one hundred and twenty days prior to such annual
meeting and not later than the close of business on the later of the ninetieth day prior to such
annual meeting or the tenth day following the day on which public announcement of the date of such
meeting is first made. In no event shall the adjournment of an annual meeting commence a new time
period for the giving of a stockholders notice as described above. Such stockholders notice
shall set forth (a) as to each person whom the stockholder proposes to nominate for election or
reelection as a Director all information relating to such person that is required to be disclosed
in solicitations of proxies for election of Directors,
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or is otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the Exchange Act), and Rule 14a-3 thereunder, in each case
including any successor Rule or Regulation thereto, including such persons written consent to
being named in the proxy statement as a nominee and to serving as a Director if elected; (b) as to
any other business that the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the reasons for conducting such business
at the meeting and any material interest in such business of such stockholder and of any beneficial
owner on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and any
beneficial owner on whose behalf the nomination or proposal is made (i) the name and address of
such stockholder, as they appear on the Corporations books, and of such beneficial owner and (ii)
the class and number of shares of the Corporation which are owned beneficially and of record by
such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this Bylaw to the
contrary, in the event that the number of Directors to be elected to the Board of Directors is
increased and there is no public announcement naming all of the nominees for Director or specifying
the size of the increased Board of Directors made by the Corporation at least one hundred days
prior to the first anniversary of the preceding years annual meeting, a stockholders notice under
this paragraph shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the tenth day
following the day on which such public announcement is first made by the Corporation.
(b)
Special Meetings of Stockholders
. Only such business as shall have been brought
before the special meeting of the stockholders pursuant to the Corporations notice of meeting
pursuant to Section 1.3 of these Bylaws shall be conducted at such meeting. Nominations of persons
for election to the Board of Directors may be made at a special meeting of stockholders at which
Directors are to be elected pursuant to the Corporations notice of meeting (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the Corporation who is entitled
to vote at the meeting, who complies with the notice procedures set forth in this Bylaw and who is
a stockholder of record at the time such notice is delivered to the Secretary of the Corporation.
Nominations by stockholders of persons for election to the Board of Directors may be made at such
special meeting of stockholders if the stockholders notice as required by paragraph (A)(2) of this
Bylaw shall be delivered to the Secretary at the principal executive offices of the Corporation not
earlier than the one hundred and twentieth day prior to such special meeting and not later than the
close of business on the later of the ninetieth day prior to such special meeting or the tenth day
following the day on which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such meeting. In no event
shall the adjournment of a special meeting commence a new time period for the giving of a
stockholders notice as described above.
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(c)
General
.
(1) Only persons who are nominated in accordance with the procedures set forth in this Bylaw
shall be eligible to serve as Directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with the procedures set
forth in this Bylaw. Except as otherwise provided by law, the Restated Certificate of
Incorporation or these Bylaws, the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the meeting was made
in accordance with the procedures set forth in this Bylaw and, if any proposed nomination or
business is not in compliance with this Bylaw, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this Bylaw, public announcement shall mean disclosure in a press release
reported by PR Newswire, Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall also comply
with all applicable requirements of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect
any right of stockholders to request inclusion of proposals in the Corporations proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
Section 1.10
Organization; Procedure
. At every meeting of stockholders the presiding
officer shall be the chairman of the meeting, who shall be a Director (or representative thereof)
designated by a majority of the Board of Directors. The order of business and all other matters of
procedure at every meeting of stockholders, including the regulation of the manner of voting and
the conduct of discussion as seem to him or her in order, shall be determined by such presiding
officer. All meetings of the stockholders shall be held at the principal place of business of the
Corporation or at such other place within or without the State of Delaware as shall be specified or
fixed in the notices or waivers of notice thereof.
Section 1.11
Inspectors of Elections
. Preceding any meeting of the stockholders, the
Board of Directors shall appoint one or more persons to act as inspectors of elections, and may
designate one or more alternate inspectors. In the event no inspector or alternate is able to act,
the person presiding at the meeting shall appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of the duties of an inspector, shall take and
sign an oath faithfully to execute the duties of inspector with strict impartiality and according
to the best of his or her ability. The inspector shall:
(a) ascertain the number of shares outstanding and the voting power of each,
(b) determine the shares represented at a meeting and the validity of proxies and ballots,
count all votes and ballots,
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(c) determine and retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors; and
(d) certify his or her determination of the number of shares represented at the meeting, and
his or her count of all votes and ballots.
The inspector may appoint or retain other persons or entities to assist in the performance of
the duties of inspector.
When determining the shares represented and the validity of proxies and ballots, the inspector
shall be limited to an examination of the proxies, any envelopes submitted with those proxies, any
information provided in accordance with Section 1.8 of these Bylaws, ballots and the regular books
and records of the Corporation. The inspector may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers or
their nominees or a similar person which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder holds of record. If the
inspector considers other reliable information as outlined in this section, the inspector, at the
time of his or her certification pursuant to clause (d) of this section, shall specify the precise
information considered, the person or persons from whom the information was obtained, when this
information was obtained, the means by which the information was obtained, and the basis for the
inspectors belief that such information is accurate and reliable.
Section 1.12
Opening and Closing of Polls
. The date and time for the opening and the
closing of the polls for each matter to be voted upon at a stockholder meeting shall be announced
at the meeting. The inspector of the election shall be prohibited from accepting any ballots,
proxies or votes or any revocations thereof or changes thereto after the closing of the polls,
unless the Court of Chancery upon application by a stockholder shall determine otherwise.
Section 1.13
No Stockholder Action by Written Consent or Telephone Conference
.
Any action required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of the stockholders of the Corporation, and the
ability of the stockholders to consent in writing or by telephone to the taking of any action is
specifically denied.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1
General Powers
. Except as may otherwise be provided by law, by the
Restated Certificate of Incorporation or by these Bylaws, the property, affairs and business of the
Corporation shall be managed by or under the direction of the Board of Directors and the Board of
Directors may exercise all the powers of the Corporation and may make all decisions and take all
actions for the Corporation. The powers of the Corporation which may be exercised by the Directors
without the approval of the stockholders shall include, without limitation, the power to
6
purchase, hold and sell investments; to borrow and loan funds and provide guarantees of the
obligations of others; and to acquire other companies in the ordinary course of business.
Section 2.2
Number and Term of Office
. The number of Directors shall be fixed from
time to time exclusively pursuant to a resolution adopted by a majority of the entire Board of
Directors, but shall consist of not less than five (5) Directors
nor more than eleven (11)
Directors. The Directors, other than those who may be elected by the holders of any series of
Preferred Stock, if any, shall be divided into three classes, designated as Classes I, II and III,
which shall be as nearly equal in number as possible. Directors of Class I shall be elected to
hold office for a term expiring at the annual meeting of stockholders to be held in 2010, Directors
of Class II shall be elected to hold office for a term expiring at the annual meeting of
stockholders to be held in 2011 and Directors of Class III shall be elected to hold office for a
term expiring at the annual meeting of stockholders to be held in 2012. At each succeeding annual
meeting of stockholders following such initial classification and election, the respective
successors of each class shall be elected for three year terms. Each Director (whenever elected)
shall hold office until his or her successor has been duly elected and qualified, or until his or
her earlier death, insanity, retirement, resignation or removal from office. Directors need not be
residents of the State of Delaware.
Section 2.3
Election of Directors
. Except as otherwise provided in Sections 2.11 and
2.12 of these Bylaws, the Directors shall be elected at each annual meeting of the stockholders.
If the annual meeting for the election of Directors is not held on the date designated therefor,
the Directors shall cause the meeting to be held as soon thereafter as convenient. At each meeting
of the stockholders for the election of Directors, provided a quorum is present, the Directors
shall be elected by a plurality of the votes validly cast in such election.
Section 2.4
Annual and Regular Meetings
. The annual meeting of the Board of Directors
for the purpose of electing officers and for the transaction of such other business as may come
before the meeting shall be held as soon as possible following adjournment of the annual meeting of
the stockholders at the place of such annual meeting of the stockholders. Notice of such annual
meeting of the Board of Directors need not be given. The Board of Directors may from time to time
provide by resolution for the holding of regular meetings and fix the place (which may be within or
without the State of Delaware) and the date and hour of such meetings, provided that such meetings
shall be held no less frequently than quarterly. Notice of regular meetings need not be given,
provided, however, that if the Board of Directors shall fix or change the time or place of any
regular meeting, notice of such action shall be mailed promptly, or sent by telephone, including a
voice messaging system or other system or technology designed to record and communicate messages,
telegraph, facsimile, electronic mail or other electronic means to each Director who shall not have
been present at the meeting at which such action was taken, addressed to him or her at his or her
usual place of business, or shall be delivered to him or her personally.
Section 2.5
Special Meetings; Notice
. Special meetings of the Board of Directors
shall be held whenever called by the Chairman of the Board or the Chief Executive Officer, or by
7
a majority of the Directors, date and hour as may be specified in the respective notices or
waivers of notice of such meetings. Special meetings of the Board of Directors may be called on at
least twenty-four hours notice to each other Director, if notice is given to each Director
personally or by telephone, including a voice messaging system or other system or technology
designed to record and communicate messages, telegraph, facsimile, electronic mail or other
electronic means or on five days notice from the official date of deposit in the mail if notice is
mailed to each Director, addressed to him or her at his or her usual place of business. Such
notice need not state the purpose or purposes of, nor the business to be transacted at, such
meeting, except as may otherwise be required by law or provided for by the Restated Certificate of
Incorporation.
Section 2.6
Quorum; Voting
. Unless otherwise required by law or provided in the
Restated Certificate of Incorporation, at all meetings of the Board of Directors, the presence of a
majority of the total number of Directors then in office shall constitute a quorum for the
transaction of business of the Directors. Except as otherwise required by law, or except as
provided herein or in the Restated Certificate of Incorporation, the act or vote of a majority of
Directors present at a meeting at which a quorum is present shall be the act or vote of the Board
of Directors. A Director who is present at a meeting of the Directors at which action on any
matter of the Corporation is taken shall be presumed to have assented to the action unless his
dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent
to such action with the person acting as secretary of the meeting before the adjournment thereof or
shall deliver such dissent to the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a Director who voted in favor of such action.
Section 2.7
Adjournment
. A majority of the Directors present, whether or not a quorum
is present, may adjourn any meeting of the Board of Directors to another time or place. No notice
need be given of any adjourned meeting unless the time and place of the adjourned meeting are not
announced at the time of adjournment, in which case notice conforming to the requirements of
Section 2.5 of these Bylaws shall be given to each Director.
Section 2.8
Action Without a Meeting
. Any action permitted or required by law, the
Restated Certificate of Incorporation or these Bylaws to be taken at a meeting of the Directors or
of any committee designated by the Directors may be taken without a meeting if a consent in
writing, setting forth the action to be taken, is signed by all the Directors or members of such
committee, as the case may be, provided that the writing or writings are filed with the minutes of
proceedings of the Board of Directors or such committee. Such consent shall have the same force
and effect as a unanimous vote at a meeting and may be stated as such in any document or instrument
filed with the Secretary of State of Delaware, and the execution of such consent shall constitute
attendance or presence in person at a meeting of the Board of Directors or any such committee, as
the case may be. Subject to the requirements of law, the Restated Certificate of Incorporation or
these Bylaws for notice of meetings, Directors, or members of any committee designated by the Board
of Directors, may participate in and hold a meeting of the Board of Directors or any committee of
Directors, as the case may be, by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear each other, and
participation in such meeting shall constitute attendance and presence in
8
person at such meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
Section 2.9
Regulations; Manner of Acting
. Meetings of the Board of Directors may be
held at such place or places as shall be determined from time to time by resolution of the
Directors. At all meetings of the Board of Directors, business shall be transacted in such order
as shall from time to time be determined by resolution of the Directors to the extent consistent
with applicable law, the Restated Certificate of Incorporation and these Bylaws. The Board of
Directors may adopt such other rules and regulations for the conduct of meetings of the Board of
Directors and for the management of the property, affairs and business of the Corporation as the
Board of Directors may deem appropriate. Attendance of a Director at a meeting shall constitute a
waiver of notice of such meeting, except where a Director attends a meeting for the express purpose
of objecting to the transaction of any business on the ground that the meeting is not lawfully
called or convened. The Directors shall act only as a Board, and the individual Directors shall
have no power as such.
Section 2.10
Resignations
. Any Director may resign at any time. Such resignation
shall be made in writing, signed by such Director, to the Corporation and shall take effect at the
time specified therein, or if no time be specified, at the time of its receipt by the Chairman of
the Board or the Secretary. The acceptance of a resignation shall not be necessary to make it
effective, unless expressly so provided in the resignation.
Section 2.11
Removal of Directors
. Any Director may be removed at any time, but only
for cause upon the affirmative vote of the holders of a majority of the combined voting power of
the then outstanding stock of the Corporation entitled to vote generally in the election of
Directors at any meeting of such stockholders, including meetings called expressly for that
purpose, and at which a quorum of stockholders is present. Subject to the rights of the holders of
any series of preferred stock of the Corporation, any vacancy in the Board of Directors caused by
any such removal shall be filled at such meeting by the stockholders entitled to vote for the
election of the Director so removed.
Section 2.12
Vacancies and Newly Created Directorships
. Subject to the rights of the
holders of any series of preferred stock of the Corporation and except as provided in Section 2.11,
if any vacancies occur in the Board of Directors, by reason of death, resignation, removal or
otherwise, or if the authorized number of Directors shall be increased, the Directors then in
office shall continue to act and such vacancies and newly created Directorships may be filled by a
majority of the Directors then in office, although less than a quorum. A Director elected to fill
a vacancy or a newly created Directorship shall hold office until the next election of the class of
Directors for which such Director has been chosen and until his or her successor has been elected
and qualified or until his or her earlier death, resignation or removal.
Section 2.13
Reliance on Accounts and Reports, etc
. A Director, or a member of any
committee designated by the Board of Directors shall, in the performance of his or her duties, be
fully protected in relying in good faith upon the records of the Corporation and upon
9
information, opinions, reports or statements presented to the Corporation by any of the Corporations officers or employees,
or committees designated by the Board of Directors, or by any other person as to the matters the Director or member reasonably
believes are within such other persons professional or expert competence and who has been selected with reasonable care by
or on behalf of the Corporation.
ARTICLE III
COMMITTEES OF DIRECTORS AND ADVISORY BOARD
Section 3.1
Committees of Directors
. The Board of Directors may designate one or more
committees, each such committee to consist of one or more Directors, as fixed from time to time by
the Board of Directors. The Board of Directors may designate one or more Directors as alternate
members of any such committee, who may replace any absent or disqualified member or members at any
meeting of such committee. Thereafter, members (and alternate members, if any) of each such
committee may be designated at the annual meeting of the Board of Directors. Any such committee
may be dissolved or re-designated from time to time by the Board of Directors. Each member (and
each alternate member) of any such committee (whether designated at an annual meeting of the Board
of Directors or to fill a vacancy or otherwise) shall hold office until his or her successor shall
have been designated or until he or she shall cease to be a Director, or until his or her earlier
death, resignation or removal.
Section 3.2
Proceedings
. Any such committee may fix its own rules of procedure and
may meet at such place (within or without the State of Delaware), at such time and upon such
notice, if any, as it shall determine from time to time. Any such committee shall keep regular
minutes of its meetings and report the same to the Board of Directors at the next meeting of the
Board following such committee meeting, except that when the Board meeting is held within two days
after the committee meeting, such report shall, if not made at the first meeting, be made to the
Board of Directors at its second meeting following such committee meeting.
Section 3.3
Quorum and Manner of Acting
. Except as may be otherwise provided in the
resolution creating such committee, at all meetings of any committee the presence of members (or
alternate members) constituting a majority of the total authorized membership of such committee
shall constitute a quorum for the transaction of business. The act of the majority of the members
present at any meeting at which a quorum is present shall be the act of such committee. Any action
required or permitted to be taken at any meeting of any such committee may be taken without a
meeting if all members of such committee shall consent to such action in writing and such writing
or writings are filed with the minutes of the proceedings of the committee. The members of any
such committee shall act only as a committee, and the individual members of such committee shall
have no power as such.
Section 3.4
Action by Telephonic Communications
. Members of any committee designated
by the Board of Directors may participate in a meeting of such committee by means of conference
telephone or similar communications equipment by means of which all persons
10
participating in the meeting can hear each other, and participation in a meeting pursuant to
this provision shall constitute presence in person at such meeting.
Section 3.5
Absent or Disqualified Members
. In the absence or disqualification of a
member of any committee, the member or members thereof present at any meeting and not disqualified
from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
Section 3.6
Resignations
. Any member (and any alternate member) of any committee may
resign at any time by delivering a written notice of resignation, signed by such member, to the
Chairman of the Board, the Chief Executive Officer or the President. Unless otherwise specified
therein, such resignation shall take effect upon delivery.
Section 3.7
Removal
. Any member (and any alternate member) of any committee may be
removed from his or her position as a member (or alternate member, as the case may be) of such
committee at any time, either for or without cause, by resolution adopted by a majority of the
whole Board of Directors.
Section 3.8
Vacancies
. If any vacancy shall occur in any committee, by reason of
disqualification, death, resignation, removal or otherwise, the remaining members (and any
alternate members) shall continue to act, and any such vacancy may be filled by the Board of
Directors.
ARTICLE IV
OFFICERS
Section 4.1
Number
. The officers of the Corporation shall be designated by the Board
of Directors and shall include such officers as the Directors may from time to time determine,
which officers may (but need not) include a Chairman of the Board ( who may or may not be an
Executive Chairman), a Vice Chairman of the Board, a Chief Executive Officer, a President, one or
more Vice Presidents (and in the case of each such Vice Presidents, with such descriptive title, if
any, as the Directors shall deem appropriate), a Secretary, an Assistant Secretary and a Treasurer.
The Board of Directors also may elect one or more other officers as the Board of Directors may
determine. Any number of offices may be held by the same person. No officer need be a Director of
the Corporation.
Section 4.2
Election
. Officers shall be chosen in such manner and shall hold their
offices for such terms as determined by the Board of Directors. Each officer shall hold office
until his or her successor has been elected and qualified in his stead, or until his or her earlier
death, resignation, retirement, disqualification or removal from office.
Section 4.3
Compensation
. The Corporation shall have the authority to pay and provide
compensation and other benefits to its officers and employees. The compensation and
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benefits of all officers of the Corporation shall be fixed from time to time by the Board of
Directors, unless otherwise delegated by the Board of Directors to a particular committee or
officer.
Section 4.4
Removal and Resignation; Vacancies
. Any officer may be removed for or
without cause at any time by the Board of Directors, or by the Chief Executive Officer or the
President if such powers of removal have been expressly conferred to such individuals by the Board
of Directors, but such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Designation of an officer shall not itself create contract rights. Any officer
may resign at any time by delivering a written notice of resignation, signed by such officer, to
the Chairman of the Board, the Chief Executive Officer or the President. Unless otherwise
specified therein, such resignation shall take effect immediately upon delivery. Any vacancy
occurring in any office of the Corporation by death, resignation, removal or otherwise, shall be
filled by the Board of Directors. The Board of Directors may abolish any office at any time unless
prohibited by law or statute.
Section 4.5
Authority and Duties of Officers
. In addition to any specifically
enumerated duties, services and powers, the officers of the Corporation shall have such authority
and shall exercise such powers and perform such duties as may be specified by law or statute, by
the Restated Certificate of Incorporation or these Bylaws, or as the Board of Directors may from
time to time determine or as may be assigned to such officers by any competent superior officer.
The Board of Directors may also at any time limit or circumvent the enumerated duties, services and
powers of any officer. In addition to the designation of officers and the enumeration of their
respective duties, services and powers, the Board of Directors may grant powers of attorneys to
individuals to act as agent for or on behalf of the Corporation, to do any act which would be
binding on the Corporation, to incur any expenditures on behalf of or for the Corporation, or to
execute, deliver and perform any agreements, acts, transactions or other matters on behalf of the
Corporation. Such powers of attorney may be revoked or modified as deemed necessary by the Board
of Directors.
Section 4.6
Chairman of the Board
. The Chairman of the Board shall, if one is
designated by the Board of Directors and is present, preside at all meetings of the stockholders
and of the Board of Directors and exercise and perform such other powers and duties as may be
assigned from time to time by the Board of Directors. He shall also assist the Directors in the
formulation of the policies of the Corporation, and shall be available to other officers on a
reasonable basis for consultation and advice.
Section 4.7
Vice Chairman of the Board
. The Vice Chairman of the Board, if one is
designated by the Board of Directors, shall, in the absence of the Chairman of the Board, preside
at all meetings of the stockholders and of the Board of Directors and exercise and perform such
other powers and duties as may be from time to time assigned by the Board of Directors.
Section 4.8
Chief Executive Officer
. The Chief Executive Officer shall have
day-to-day supervision of the affairs of the Corporation, such powers and duties subject at all
times to the authority of the Board of Directors. In the absence or disability of the Chairman of
the Board
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and the Vice Chairman of the Board, the Chief Executive Officer shall exercise the powers and
perform the duties of the Chairman of the Board.
Section 4.9
President
. The President, if one is designated by the Board of Directors,
shall generally assist the Chief Executive Officer and shall have such powers and perform such
duties and services as shall from time to time be prescribed or delegated to him or her by the
Chief Executive Officer or the Board of Directors. In the absence or disability of the Chief
Executive Officer, the President shall exercise the powers and perform the duties of the Chief
Executive Officer.
Section 4.10
Vice Presidents
. Each Vice President that is designated by the Board of
Directors shall generally assist the President and shall have such powers and perform such duties
and services as shall from time to time be prescribed or delegated to him or her by the President
or the Board of Directors.
Section 4.11
Secretary
. The Secretary, if one is designated by the Board of
Directors, shall have the following powers and duties:
(a) He or she shall keep or cause to be kept a record of all the proceedings of the meetings
of the stockholders and of the Board of Directors in books provided for that purpose.
(b) He or she shall cause all notices to be duly given in accordance with the provisions of
these Bylaws and as required by law.
(c) Whenever any committee shall be appointed pursuant to a resolution of the Board of
Directors, he or she shall furnish a copy of such resolution to the members of such committee.
(d) He or she shall be the custodian of the records and of the seal of the Corporation and
cause such seal (or a facsimile thereof) to be affixed to all certificates representing shares of
the Corporation prior to the issuance thereof and to all instruments the execution of which on
behalf of the Corporation under its seal shall have been duly authorized in accordance with these
Bylaws, and when so affixed he or she may attest the same.
(e) He or she shall properly maintain and file all books, reports, statements, certificates
and all other documents and records required by law, the Restated Certificate of Incorporation or
these Bylaws.
(f) He or she shall have charge of the stock books and ledgers of the Corporation and shall
cause the stock and transfer books to be kept in such manner as to show at any time the number of
shares of stock of the Corporation of each class issued and outstanding, the names (alphabetically
arranged) and the addresses of the holders of record of such shares, the number of shares held by
each holder and the date as of which each became such holder of record.
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(g) He or she shall sign (unless the Treasurer, an Assistant Treasurer or an Assistant
Secretary shall have signed) certificates representing shares of the Corporation the issuance of
which shall have been authorized by the Board of Directors.
(h) He or she shall perform, in general, all duties incident to the office of Secretary and
such other duties as may be specified in these Bylaws or as may be assigned to him or her from time
to time by the Board of Directors, the Chief Executive Officer or the President.
Section 4.12
Assistant Secretary
. The Assistant Secretary, if one is designated by
the Board of Directors, shall generally assist the Secretary.
Section 4.13
Treasurer
. The Treasurer, if one is designated by the Board of
Directors, or such other officer as may be designated by the Board of Directors, shall be the chief
accounting and financial officer of the Corporation and have custody of all the funds, securities
and other valuables of the Corporation which may have or shall come into his or her hands. The
Treasurer shall have active control of and shall be responsible for all matters pertaining to the
accounts and finances of the Corporation and shall have such powers and perform such duties as may
be prescribed by the Chief Executive Officer, the President, the Board of Directors or elsewhere in
these Bylaws.
Section 4.14
Additional Officers
. The Board of Directors may appoint such other
officers and agents as it may deem appropriate, and such other officers and agents shall hold their
offices for such terms and shall exercise such powers and perform such duties as may be determined
from time to time by the Board of Directors. The Board of Directors from time to time may delegate
to the Chief Executive Officer or President the power to appoint subordinate officers or agents and
to prescribe their respective rights, terms of office, authorities and duties. Any such officer or
agent may remove any such subordinate officer or agent appointed by him or her, for or without
cause.
Section 4.15
Security
. The Board of Directors may require any officer, agent or
employee of the Corporation to provide security for the faithful performance of his or her duties,
in such amount and of such character as may be determined from time to time by the Board of
Directors.
ARTICLE V
CAPITAL STOCK
Section 5.1
Uncertificated Shares
. Except as otherwise provided in a resolution
approved by the Board, all shares of capital stock of the Corporation issued after the date hereof
shall be uncertificated shares. In the event that the Board elects to provide in a resolution that
certificates shall be issued to represent any shares of capital stock of the Corporation, holders
of such shares (and upon request every holder of uncertificated shares) shall be entitled to have a
certificate signed by, or in the name of the Corporation, by the Chairman of the Board or a Vice
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Chairman of the Board, the President or a Vice President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, representing the number of shares registered
in certificate form. Such certificate shall be in such form as the Board may determine, to the
extent consistent with applicable law, the Restated Certificate of Incorporation and these Bylaws.
Section 5.2
Signatures; Facsimile
. All of such signatures on the certificate referred
to in Section 5.1 of these Bylaws may be a facsimile, engraved or printed, to the extent permitted
by law. In case any officer, transfer agent or registrar who has signed, or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if he or she were such officer, transfer agent or registrar at the date of issue.
Section 5.3
Lost, Stolen or Destroyed Certificates
. The Corporation may direct that a
new certificate be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon delivery to the Corporation of an affidavit of the
owner or owners of such certificate, setting forth such allegation. The Corporation may require
the owner of such lost, stolen or destroyed certificate, or his or her legal representative, to
give the Corporation a bond sufficient to indemnify it against any claim that may be made against
it on account of the alleged loss, theft or destruction of any such certificate or the issuance of
any such new certificate.
Section 5.4
Transfer of Stock
. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares, duly endorsed or accompanied by appropriate
evidence of succession, assignment or authority to transfer, the Corporation shall issue a new
certificate to the person entitled thereto, cancel the old certificate and record the transaction
upon its books. Within a reasonable time after the transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice containing the information
required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a)
of the Delaware General Corporation Law. Subject to the provisions of the Restated Certificate of
Incorporation and these Bylaws, the Board of Directors may prescribe such additional rules and
regulations as it may deem appropriate relating to the issue, transfer and registration of shares
of the Corporation.
Section 5.5
Record Date
. In order to determine the stockholders entitled to notice
of, or entitled to vote at, any meeting of stockholders or any adjournment thereof, the Board of
Directors may fix in advance a record date, which record date shall not precede the date on which
the resolution fixing the record date is adopted by the Board of Directors, and which shall not be
more than sixty nor less than ten days before the date of such meeting. A determination of
stockholders of record entitled to notice of or entitled to vote at a meeting of stockholders shall
apply to any adjournment of the meeting, provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights of the stockholders
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entitled to exercise any rights in respect of any change, conversion or exchange of stock, or
for the purpose of any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action. If no record date is
fixed, the record date for determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 5.6
Registered Stockholders
. Prior to due surrender of a certificate for
registration of transfer, the Corporation may treat the registered owner as the person exclusively
entitled to receive dividends and other distributions, to vote, to receive notice and otherwise to
exercise all the rights and powers of the owner of the shares represented by such certificate, and
the Corporation shall not be bound to recognize any equitable or legal claim to or interest in such
shares on the part of any other person, whether or not the Corporation shall have notice of such
claim or interests. Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are
presented to the Corporation for transfer or uncertificated shares are requested to be transferred,
both the transferor and transferee request the Corporation to do so.
Section 5.7
Transfer Agent and Registrar
. The Board of Directors may appoint one or
more transfer agents and one or more registrars, and may require all certificates representing
shares to bear the signature of any such transfer agents or registrars.
ARTICLE VI
INDEMNIFICATION
Section 6.1
Nature of Indemnity
. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (a Proceeding), whether civil, criminal, administrative, arbitrative or
investigative, or any appeal in such a Proceeding or any inquiry or investigative (other than an
action by or in the right of the Corporation), by reason of the fact that he or she is or was
Director, officer, employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her or on his or her
behalf in connection with such action, suit or proceeding and any appeal therefrom, provided that
he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding
had no reasonable cause to believe his or her conduct was unlawful. The indemnification provided
in this Article VI could involve indemnification for negligence or under theories of strict
liability. In the case of an action or suit by or in the right of the Corporation to procure a
judgment in its favor (1) the indemnification of a Director or officer shall be limited to expenses
(including attorneys fees) actually and reasonably incurred by such person in the defense or
settlement of such action or suit, and (2) no indemnification shall be
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made in respect of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the Corporation unless and only to the extent that the Delaware Court of Chancery
or the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper. Notwithstanding the foregoing, but subject to
Section 6.5 of these Bylaws, the Corporation shall not be obligated to indemnify a Director or
officer of the Corporation in respect of a Proceeding (or part thereof) instituted by such Director
or officer, unless such Proceeding (or part thereof) has been authorized by the Board of Directors.
The termination of any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.
The rights granted pursuant to this Article VI shall be deemed contract rights. No amendment,
modification or repeal of this Article VI shall have the effect of limiting or denying any such
rights with respect to actions taken or Proceedings arising prior to any such amendment,
modification or repeal.
Section 6.2
Successful Defense
. To the extent that a present or former Director or
officer of the Corporation has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Section 6.1 of these Bylaws or in defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses (including attorneys fees)
actually and reasonably incurred by him or her in connection therewith.
Section 6.3
Determination that Indemnification is Proper
. Any indemnification of a
present or former Director or officer of the Corporation under Section 6.1 of these Bylaws (unless
ordered by a court) shall be made by the Corporation unless a determination is made that
indemnification of the Director or officer is not proper in the circumstances because he or she has
not met the applicable standard of conduct set forth in Section 6.1 of these Bylaws. Any such
determination shall be made (1) by a majority vote of the Directors who are not parties to such
action, suit or proceeding, even though less than a quorum, (2) by a committee of such Directors
designated by majority vote of such Directors, even though less than a quorum, (3) if there are no
such Directors, or if such Directors so direct, by independent legal counsel in a written opinion
or (4) by the stockholders.
Section 6.4
Advance Payment of Expenses
. The right to indemnification conferred in
this Article VI shall include the right to be paid or reimbursed by the Corporation the reasonable
expenses incurred by a person of the type entitled to be indemnified under Sections 6.1, 6.2, and
6.3 who was, is, or is threatened to be made a named defendant or respondent in a Proceeding in
advance of the final disposition of the Proceeding and without any determination as to the
17
persons ultimate entitlement to indemnification; provided, however, that the payment of such
expenses incurred by any such person in advance of the final disposition of a Proceeding shall be
made only upon delivery to the Corporation of a written affirmation by such person of his or her
good faith belief that he or she has met the standard of conduct necessary for indemnification
under this Article VI and a written undertaking, by or on behalf of such person, to repay all
amounts so advanced if it shall ultimately be determined that such person is not entitled to be
indemnified under this Article VI or otherwise. The Board of Directors may authorize the
Corporations counsel to represent such present or former Director or officer in any action, suit
or proceeding, whether or not the Corporation is a party to such action, suit or proceeding.
Section 6.5
Procedure for Indemnification of Directors and Officers
. Any
indemnification of a Director or officer of the Corporation under Sections 6.1, 6.2, and 6.3 of
these Bylaws, or advance of costs, charges and expenses to a Director or officer under Section 6.4
of these Bylaws, shall be made promptly, and in any event within thirty days, upon the written
request of such person. If a determination by the Corporation that the Director or officer is
entitled to indemnification pursuant to this Article is required, and the Corporation fails to
respond within sixty days to a written request for indemnity, the Corporation shall be deemed to
have approved such request. If the Corporation denies a written request for indemnity or
advancement of expenses, in whole or in part, or if payment in full pursuant to such request is not
made within thirty days, the right to indemnification or advances as granted by this Article shall
be enforceable by the Director or officer in any court of competent jurisdiction. Such persons
costs and expenses incurred in connection with successfully establishing his or her right to
indemnification, in whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses under Section 6.4 of these Bylaws where the
required undertaking, if any, has been received by or tendered to the Corporation) that the
claimant has not met the standard of conduct set forth in Section 6.1 of these Bylaws, but the
burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, its independent legal counsel, and its stockholders) to have
made a determination prior to the commencement of such action that indemnification of the claimant
is proper in the circumstances because he or she has met the applicable standard of conduct set
forth in Section 6.1 of these Bylaws, nor the fact that there has been an actual determination by
the Corporation (including its Board of Directors, its independent legal counsel, and its
stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense
to such action or create a presumption that the claimant has not met the applicable standard of
conduct.
Section 6.6
Survival; Preservation of Other Rights
. The foregoing indemnification
provisions shall be deemed to be a contract between the Corporation and each Director or officer
who serves in any such capacity at any time while these provisions are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing with respect to any
state of facts then or previously existing or any action, suit or proceeding previously or
thereafter brought or threatened based in whole or in part upon any such state of facts. Such a
contract right may not be modified retroactively without the consent of such Director or officer.
18
The indemnification and the advancement and payment of expenses provided by this Article VI
shall not be deemed exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, common or statutory law, provision of the Restated Certificate of Incorporation,
agreement, vote of stockholders or disinterested Directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a Director or officer and shall inure to the benefit
of the heirs, executors and administrators of such a person.
Section 6.7
Insurance
. The Corporation shall purchase and maintain insurance, at its
expense, to protect the Corporation and any person who is or was or has agreed to become a Director
or officer, or is or was serving at the request of the Corporation as a Director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or
domestic corporation, limited liability company, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise against any expense, liability, or loss asserted
against him or her or incurred by him or her or on his or her behalf in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions of this Article, provided that
such insurance is available on acceptable terms, which determination shall be made by a vote of a
majority of the entire Board of Directors.
Section 6.8
Severability
. If this Article VI or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify and hold harmless each Director or officer or any other person indemnified
pursuant to this Article VI as to costs, charges and expenses (including reasonable attorneys
fees), judgments, fines and amounts paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or investigative to the full extent permitted
by any applicable portion of this Article VI that shall not have been invalidated and to the
fullest extent permitted by applicable law.
Section 6.9
Limitation on Liability
. No Director or officer shall be personally
liable, as such, for any action taken or omitted from being taken unless: (i) such Director or
officer breached or failed to perform the duties of his office and (ii) the breach or failure to
perform constituted recklessness, self-dealing or willful misconduct. The foregoing shall not
apply to any responsibility or liability under a criminal statute or liability for the payment of
taxes under Federal, state or local law.
Section 6.10
Appearance as a Witness
. Notwithstanding any other provision of this
Article VI, the Corporation shall pay or reimburse expenses incurred by a Director or officer in
connection with his appearance as a witness or other participation in a Proceeding at a time when
he is not a named defendant or respondent in the Proceeding.
Section 6.11
Indemnification of Employees and Agents
. The Corporation, by adoption of
a resolution of the Board of Directors, may indemnify and advance expenses to an employee or agent
of the Corporation to the same extent and subject to the same conditions under which it may
indemnify and advance expenses to Directors and officers under this Article VI; and, the
19
Corporation may indemnify and advance expenses to persons who are not or were not Directors,
officers, employees or agents of the Corporation but who are or were serving at the request of the
Corporation as director, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic corporation, limited liability company,
partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise
against any liability asserted against him or her and incurred by him or her in such a capacity or
arising out of his or her status as such a person to the same extent that it may indemnify and
advance expenses to Directors and officers of the Corporation under this Article VI.
ARTICLE VII
OFFICES
Section 7.1
Registered Office and Agent
. The registered agent and office of the
Corporation in the State of Delaware shall be the Corporation Trust Company, located at 1209 Orange
Street in the City of Wilmington, County of New Castle (19801) or such other agent and office
(which need not be a place of business of the Corporation) as the Board of Directors may designate
from time to time in the manner provided by law.
Section 7.2
Other Offices
. The Corporation may maintain offices or places of business
at such other locations within or without the State of Delaware as the Board of Directors may from
time to time determine or as the business of the Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1
Dividends
. Subject to any applicable provisions of law and the Restated
Certificate of Incorporation, dividends upon the shares of the Corporation may be declared by the
Board of Directors at any regular or special meeting of the Board of Directors and any such
dividend may be paid in cash, property or shares of the Corporations capital stock.
Section 8.2
Reserves
. There may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to time, in its
absolute discretion, thinks proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation or for such
other purpose as the Board of Directors shall think conducive to the interest of the Corporation,
and the Board of Directors may similarly modify or abolish any such reserve.
Section 8.3
Execution of Instruments
. The Chief Executive Officer, the President, any
Vice President, the Secretary or the Treasurer may enter into any contract or execute and deliver
any instrument in the name and on behalf of the Corporation. The Board of Directors, the Chief
Executive Officer or the President may authorize any other officer or agent to enter into any
contract or execute and deliver any instrument in the name and on behalf of the Corporation. Any
such authorization may be general or limited to specific contracts or instruments.
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Section 8.4
Deposits
. Any funds of the Corporation may be deposited from time to time
in such banks, trust companies or other depositories as may be determined by the Board of
Directors, the Chief Executive Officer or the President, or by such officers or agents as may be
authorized by the Board of Directors, the Chief Executive Officer or the President to make such
determination.
Section 8.5
Checks
. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such agent or agents of the Corporation, and in such
manner, as the Board of Directors or the Chief Executive Officer or President from time to time may
determine.
Section 8.6
Sale, Transfer, etc. of Securities
. To the extent authorized by the Board
of Directors or by the Chief Executive Officer, the President, any Vice President, the Secretary or
the Treasurer or any other officers designated by the Board of Directors, the Chief Executive
Officer or the President may sell, transfer, endorse, and assign any shares of stock, bonds or
other securities owned by or held in the name of the Corporation, and may make, execute and deliver
in the name of the Corporation, under its corporate seal, any instruments that may be appropriate
to effect any such sale, transfer, endorsement or assignment.
Section 8.7
Voting as Stockholder
. Unless otherwise determined by resolution of the
Board of Directors, the Chief Executive Officer or the President or any Vice President shall have
full power and authority on behalf of the Corporation to attend any meeting of stockholders of any
corporation in which the Corporation may hold stock and to act, vote (or execute proxies to vote)
and exercise in person or by proxy all other rights, powers and privileges incident to the
ownership of such stock. Such officers acting on behalf of the Corporation shall have full power
and authority to execute any instrument expressing consent to or dissent from any action of any
such corporation without a meeting. The Board of Directors may by resolution from time to time
confer such power and authority upon any other person or persons.
Section 8.8
Fiscal Year
. The fiscal year of the Corporation shall commence on the
first day of January of each year (except for the Corporations first fiscal year which shall
commence on the date of incorporation) and shall terminate in each case on December 31.
Section 8.9
Seal
. The seal of the Corporation shall be circular in form, and shall
contain the name of the Corporation, the year of its incorporation and the words Corporate Seal
and Delaware. The form of such seal shall be subject to alteration by the Board of Directors.
The seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced,
or may be used in any other lawful manner.
Section 8.10
Books and Records; Inspection
. Except to the extent otherwise required
by law, the books and records of the Corporation shall be kept at such place or places within or
without the State of Delaware as may be determined from time to time by the Board of Directors.
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ARTICLE IX
AMENDMENT OF BYLAWS
Section 9.1
Amendment
. Subject to any express provision in the Restated Certificate
of Incorporation to the contrary, these Bylaws may be amended, altered or repealed:
(a) by resolution adopted by a majority of the Board of Directors at any special or regular
meeting of the Board of Directors without the assent or vote of the stockholders of the Corporation
if, in the case of such special meeting only, notice of such amendment, alteration or repeal is
contained in the notice or waiver of notice of such meeting; or
(b) at any regular or special meeting of the stockholders upon the affirmative vote of not
less than two-thirds (66⅔%) of the holders of the combined voting power of the outstanding shares
of the Corporation entitled to vote generally in the election of Directors if, in the case of such
special meeting only, notice of such amendment, alteration or repeal is contained in the notice or
waiver of notice of such meeting.
ARTICLE X
CONSTRUCTION
Section 10.1
Construction
. In the event of any conflict between the provisions of
these Bylaws as in effect from time to time and the provisions of the Restated Certificate of
Incorporation of the Corporation as in effect from time to time, the provisions of such Restated
Certificate of Incorporation shall be controlling.
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