EXHIBIT 9
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
among
PROXYMED, INC.
GENERAL ATLANTIC PARTNERS 74, L.P.,
GENERAL ATLANTIC PARTNERS 77, L.P.,
GAP COINVESTMENT PARTNERS II, L.P.,
GAP COINVESTMENTS III, LLC,
GAP COINVESTMENTS IV, LLC,
GAPSTAR, LLC,
GAPCO GMBH & CO. KG,
PVC FUNDING PARTNERS, LLC,
COMVEST VENTURE PARTNERS, L.P.,
ββββ VENTURES, LLC
AND
ββββββ ββββββ
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Dated: March 2, 2004
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TABLE OF CONTENTS
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1. Definitions...............................................................1
2. General; Securities Subject to this Agreement.............................6
(a) Grant of Rights......................................................6
(b) Registrable Securities...............................................6
(c) Holders of Registrable Securities....................................6
3. Demand Registration.......................................................6
(a) Request for Demand Registration......................................6
(b) Incidental or "Piggy-Back" Rights with Respect
to a Demand Registration..........................................7
(c) Effective Demand Registration........................................8
(d) Expenses.............................................................8
(e) Underwriting Procedures..............................................8
(f) Selection of Underwriters............................................9
4. Incidental or "Piggy-Back" Registration...................................9
(a) Request for Incidental Registration..................................9
(b) Expenses............................................................10
5. Shelf Registration.......................................................10
(a) Request for a Shelf Registration....................................10
(b) Shelf Underwriting Procedures.......................................10
(c) Expenses............................................................11
(d) No Demand Registration..............................................11
6. Holdback Agreements......................................................11
(a) Restrictions on Public Sale by Designated Holders...................11
(b) Restrictions on Public Sale by the Company..........................11
7. Registration Procedures..................................................12
(a) Obligations of the Company..........................................12
(b) Seller Information..................................................15
(c) Notice to Discontinue...............................................15
(d) Registration Expenses...............................................15
8. Indemnification; Contribution............................................16
(a) Indemnification by the Company......................................16
(b) Indemnification by Designated Holders...............................16
(c) Conduct of Indemnification Proceedings..............................17
(d) Contribution........................................................18
9. Rule 144.................................................................18
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10. Miscellaneous............................................................19
(a) Recapitalizations, Exchanges, etc...................................19
(b) No Inconsistent Agreements..........................................19
(c) Remedies............................................................19
(d) Amendments and Waivers..............................................19
(e) Notices.............................................................20
(f) Successors and Assigns; Third Party Beneficiaries...................22
(g) Counterparts........................................................23
(h) Headings............................................................23
(i) GOVERNING LAW.......................................................23
(j) Severability........................................................23
(k) Rules of Construction...............................................23
(l) Entire Agreement....................................................23
(m) Further Assurances..................................................23
(n) Other Agreements....................................................23
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated March 2,
2004 (this "Agreement"), among ProxyMed, Inc., a Florida corporation (the
"COMPANY"), General Atlantic Partners 77, L.P., a Delaware limited partnership
("GAP 77 LP"), General Atlantic Partners 74, L.P., a Delaware limited
partnership ("GAP 74 LP"), GAP Coinvestment Partners II, L.P., a Delaware
limited partnership ("GAP Coinvestment"), GAP Coinvestments III, LLC, a Delaware
limited liability company ("GAP COINVESTMENTS III"), GAP Coinvestments IV, LLC,
a Delaware limited liability company ("GAP COINVESTMENTS IV"), GapStar, LLC, a
Delaware limited liability company ("GAPSTAR"), GAPCO GmbH & Co. KG, a German
limited partnership ("GMBH COINVESTMENT"), PVC Funding Partners, LLC, a Delaware
limited liability company ("PVC"), ComVest Venture Partners, L.P., a Delaware
limited partnership ("COMVEST"), ββββ Ventures, LLC ("ββββ") and ββββββ ββββββ
("ββββββ"), amends and restates in its entirety the Registration Rights
Agreement, dated April 5, 2002, among the Company, GAP 74 LP, GAP Coinvestment,
GapStar and GmbH Coinvestment (the "ORIGINAL AGREEMENT").
WHEREAS, the Company, GAP 74 LP, GAP Coinvestment, GapStar and GmbH
Coinvestment are parties to the Original Agreement and wish to amend and restate
the Original Agreement in its entirety pursuant to this Agreement; and
WHEREAS, pursuant to the Stock Purchase Agreement, dated December 5,
2003 (the "STOCK PURCHASE AGREEMENT"), among the Company, GAP 77 LP, GAP
Coinvestment, GapStar, GmbH Coinvestment, PVC, ComVest, ββββ and ββββββ, the
Company has agreed to issue and sell to each of GAP 77 LP, GAP Coinvestment,
GapStar, GmbH Coinvestment, PVC, ComVest, ββββ and ββββββ shares of Common
Stock, par value $0.001 per share, of the Company;
WHEREAS, GAP 77 LP, GAP Coinvestment and GmbH Coinvestment have each
assigned certain of their respective rights and obligations to purchase shares
of Common Stock of the Company to GAP Coinvestments III and GAP Coinvestments
IV; and
WHEREAS, in order to induce each of GAP 77 LP, GAP Coinvestments III,
GAP Coinvestments IV, GapStar, GmbH Coinvestment, PVC, ComVest, ββββ and ββββββ
to purchase its shares of Common Stock, the Company, GAP 74 LP, GAP
Coinvestment, GapStar and GmbH Coinvestment have agreed to amend and restate the
Original Agreement in its entirety and thereby grant registration rights with
respect to the Registrable Securities (as hereinafter defined) as set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
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"AFFILIATE" shall mean any Person who is an "affiliate" as defined in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act. In
addition, the following shall be deemed to be Affiliates of GAP Coinvestment,
GAP Coinvestments III, GAP Coinvestments IV, GAP 74 LP, Gap 77 LP, GapStar and
GmbH Coinvestment: (a) GAP LLC, the members of GAP LLC, GmbH Management, the
shareholders of GmbH Management, the limited partners of each of GAP
Coinvestment, GAP 74 LP, GAP 77 LP and GmbH Coinvestment, and the members of
each of GAP Coinvestments II, GAP Coinvestments III and GapStar; (b) any
Affiliate of GAP LLC, the members of GAP LLC, the limited partners of GAP
Coinvestment or GmbH Coinvestment, or the members of GAP Coinvestments II, GAP
Coinvestments III or GapStar; and (c) any limited liability company or
partnership a majority of whose members or partners, as the case may be, are
members or former members of GAP LLC or consultants or key employees of General
Atlantic Service Corporation, a Delaware corporation and an Affiliate of GAP
LLC. In addition, GAP 74 LP, GAP 77 LP, GAP Coinvestment, GAP Coinvestments II,
GAP Coinvestments III, GapStar and GmbH Coinvestment shall be deemed to be
Affiliates of one another.
"AGREEMENT" mean this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"APPROVED UNDERWRITER" has the meaning set forth in Section 3(f) of
this Agreement.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"CLOSING DATE" has the meaning ascribed to such term in the Agreement
and Plan of Merger, dated as of December 5, 2003, by and among the Company,
Planvista Corporation, a Delaware corporation, and Planet Acquisition Corp., a
Delaware corporation.
"CLOSING PRICE" means, with respect to the Registrable Securities, as
of the date of determination, (a) if the Registrable Securities are listed on a
national securities exchange, the closing price per share of a Registrable
Security on such date published in THE WALL STREET JOURNAL (NATIONAL EDITION)
or, if no such closing price on such date is published in THE WALL STREET
JOURNAL (NATIONAL EDITION), the average of the closing bid and asked prices on
such date, as officially reported on the principal national securities exchange
on which the Registrable Securities are then listed or admitted to trading; or
(b) if the Registrable Securities are not then listed or admitted to trading on
any national securities exchange but are designated as national market system
securities by the NASD, the last trading price per share of a Registrable
Security on such date; or (c) if there shall have been no trading on such date
or if the Registrable Securities are not designated as national market system
securities by the NASD, the average of the reported closing bid and asked prices
of the Registrable Securities on such date as shown by The Nasdaq
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Stock Market, Inc. (or its successor) and reported by any member firm of The New
York Stock Exchange, Inc. selected by the Company; or (d) if none of (a), (b) or
(c) is applicable, a market price per share determined in good faith by the
Board of Directors or, if such determination is not satisfactory to the
Designated Holder for whom such determination is being made, by a nationally
recognized investment banking firm selected by the Company and such Designated
Holder, the expenses for which shall be borne equally by the Company and such
Designated Holder. If trading is conducted on a continuous basis on any
exchange, then the closing price shall be at 4:00 P.M. New York City time.
"COMMISSION" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
"COMMON STOCK" means the Common Stock, par value $0.001 per share, of
the Company or any other capital stock of the Company into which such stock is
reclassified or reconstituted and any other common stock of the Company.
"COMMONWEALTH STOCKHOLDERS" means PVC, ComVest, Shea, Priddy, any
Subsequent Commonwealth Purchaser and any Transferee thereof to whom Registrable
Securities are transferred in accordance with Section 10(f) of this Agreement.
"COMPANY" has the meaning set forth in the preamble to this Agreement.
"COMPANY UNDERWRITER" has the meaning set forth in Section 4(a) of this
Agreement.
"COMVEST" has the meaning set forth in the preamble of this Agreement.
"DEMAND REGISTRATION" has the meaning set forth in Section 3(a) of this
Agreement.
"DESIGNATED HOLDER" means each of the Commonwealth Stockholders and the
General Atlantic Stockholders and any transferee of any of them to whom
Registrable Securities have been transferred in accordance with Section 10(f) of
this Agreement, other than a transferee to whom Registrable Securities have been
transferred pursuant to a Registration Statement under the Securities Act or
Rule 144 or Regulation S under the Securities Act (or any successor rule
thereto).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder.
"GAP COINVESTMENT" has the meaning set forth in the preamble to this
Agreement.
"GAP COINVESTMENTS III" has the meaning set forth in the preamble to
this Agreement.
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"GAP COINVESTMENTS IV" has the meaning set forth in the preamble to
this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware limited
liability company and the general partner of GAP 74 LP and GAP 77 LP and the
managing member of GapStar, and any successor to such entity.
"GAP 74 LP" has the meaning set forth in the preamble to this
Agreement.
"GAP 77 LP" has the meaning set forth in the preamble to this
Agreement.
"GAPSTAR" has the meaning set forth in the preamble to this Agreement.
"GENERAL ATLANTIC STOCKHOLDERS" means GAP 74 LP, GAP 77 LP, GAP
Coinvestment, GAP Coinvestments III, GAP Coinvestments IV, GapStar, GmbH
Coinvestment, any Subsequent General Atlantic Purchaser and any Transferee
thereof to whom Registrable Securities are transferred in accordance with
Section 10(f) of this Agreement.
"GMBH COINVESTMENT" has the meaning set forth in the preamble to this
Agreement.
"GMBH MANAGEMENT" means GAPCO Management GmbH, a German company with
limited liability and the general partner of GmbH Coinvestment, and any
successor to such entity.
"HOLDERS' COUNSEL" has the meaning set forth in Section 7(a)(i) of this
Agreement.
"INCIDENTAL REGISTRATION" has the meaning set forth in Section 4(a) of
this Agreement.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8(c) of this
Agreement.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8(c) of this
Agreement.
"INITIATING HOLDERS" has the meaning set forth in Section 3(a) of this
Agreement.
"INSPECTOR" has the meaning set forth in Section 7(a)(vii) of this
Agreement.
"LIABILITY" has the meaning set forth in Section 8(a) of this
Agreement.
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"MARKET PRICE" means, on any date of determination, the average of the
daily Closing Price of the Registrable Securities for the immediately preceding
thirty (30) days on which the national securities exchanges are open for
trading.
"NASD" means the National Association of Securities Dealers, Inc.
"ORIGINAL AGREEMENT" has the meaning set forth in the preamble to this
Agreement.
"PERSON" means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"ββββββ" has the meaning set forth in the preamble to this Agreement.
"PVC" has the meaning set forth in the preamble to this Agreement.
"RECORDS" has the meaning set forth in Section 7(a)(vii) of this
Agreement.
"REGISTRABLE SECURITIES" means each of the following: (a) any and all
shares of Common Stock owned by the Designated Holders on the date hereof or
issued or issuable upon exercise of the Warrants, (b) any other shares of Common
Stock hereafter acquired or owned by any of the Designated Holders if such
Designated Holder is an Affiliate of the Company and (c) any shares of Common
Stock issued or issuable to any of the Designated Holders with respect to the
Registrable Securities by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise and any shares of Common Stock or voting common
stock issuable upon conversion, exercise or exchange thereof.
"REGISTRATION EXPENSES" has the meaning set forth in Section 7(d) of
this Agreement.
"REGISTRATION STATEMENT" means a Registration Statement filed pursuant
to the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"ββββ" has the meaning set forth in the preamble to this Agreement.
"SHELF INITIATING HOLDERS" has the meaning set forth in Section 5(a) of
this Agreement.
"SHELF REGISTRATION" has the meaning set forth in Section 5(a) of this
Agreement.
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"STOCK PURCHASE AGREEMENT" has the meaning set forth in the recitals to
this Agreement.
"SUBSEQUENT COMMONWEALTH PURCHASER" means any Affiliate of PVC,
ComVest, ββββ or ββββββ that, after the date hereof, acquires shares of Common
Stock, Preferred Stock, other shares of capital stock of the Company, or any
other security convertible, exchangeable or exercisable into or for shares of
Common Stock, Preferred Stock or other shares of capital stock of the Company,
and any option, warrant or other subscription or purchase right with respect to
any of the foregoing.
"SUBSEQUENT GENERAL ATLANTIC PURCHASER" means any Affiliate of GAP LLC
that, after the date hereof, acquires shares of Common Stock, Preferred Stock,
other shares of capital stock of the Company, or any other security convertible,
exchangeable or exercisable into or for shares of Common Stock, Preferred Stock
or other shares of capital stock of the Company, and any option, warrant or
other subscription or purchase right with respect to any of the foregoing.
"VALID BUSINESS REASON" has the meaning set forth in Section 3(a) of
this Agreement.
"WARRANTS" has the meaning set forth in the Stock Purchase Agreement.
2. GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT.
(a) GRANT OF RIGHTS. The Company hereby grants
registration rights to the Designated Holders upon the terms and conditions set
forth in this Agreement.
(b) REGISTRABLE SECURITIES. For the purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities, when
(i) a Registration Statement covering such Registrable Securities has been
declared effective under the Securities Act by the Commission and such
Registrable Securities have been disposed of pursuant to such effective
Registration Statement, (ii) (x) the entire amount of the Registrable Securities
owned by a Designated Holder may be sold in a single sale, in the opinion of
counsel satisfactory to the Company and such Designated Holder, each in their
reasonable judgment, without any limitation as to volume pursuant to Rule 144
(or any successor provision then in effect) under the Securities Act and (y)
such Designated Holder owning such Registrable Securities owns less than one
percent (1%) of the outstanding shares of Common Stock on a fully diluted basis,
or (iii) the Registrable Securities are proposed to be sold or distributed by a
Person not entitled to the registration rights granted by this Agreement.
(c) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed
to be a holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected. If the
Company receives conflicting instructions, notices or
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elections from two or more Persons with respect to the same Registrable
Securities, the Company may act upon the basis of the instructions, notice or
election received from the registered owner of such Registrable Securities.
Registrable Securities issuable upon exercise of an option or upon conversion of
another security shall be deemed outstanding for the purposes of this Agreement.
3. DEMAND REGISTRATION.
(a) REQUEST FOR DEMAND REGISTRATION. Subject to certain
restrictions on transfer set forth in Section 8.5 of the Stock Purchase
Agreement, at any time after the date hereof, one or more of (i) the General
Atlantic Stockholders, acting through GAP LLC or their written designee, or (ii)
the Commonwealth Stockholders, upon the affirmative vote of the holders of a
majority of the Registrable Securities held by the Commonwealth Stockholders
(each, an "INITIATING HOLDER" and together, the "INITIATING HOLDERS"), may make
a written request to the Company to register, and the Company shall register,
under the Securities Act (other than pursuant to a Registration Statement on
Form S-4 or S-8 or any successor thereto) (a "DEMAND REGISTRATION"), the number
of Registrable Securities stated in such request; PROVIDED, HOWEVER, that
subject to Section 3(c), the Company shall not be obligated to effect (x) more
than one such Demand Registration for the Commonwealth Stockholders as a group
and (y) more than one such Demand Registration for the General Atlantic
Stockholders as a group. For purposes of the preceding sentence, two or more
Registration Statements filed in response to one demand shall be counted as one
Demand Registration. If the Board of Directors, in its good faith judgment,
determines that any registration of Registrable Securities should not be made or
continued because it would materially interfere with any material financing,
acquisition, corporate reorganization or merger or other material transaction
involving the Company (a "VALID BUSINESS REASON"), the Company may (x) postpone
filing a Registration Statement relating to a Demand Registration until such
Valid Business Reason no longer exists, but in no event for more than one
hundred and twenty (120) days, and (y) in case a Registration Statement has been
filed relating to a Demand Registration, if the Valid Business Reason has not
resulted from actions taken by the Company, the Company, upon the approval of a
majority of the Board of Directors, may cause such Registration Statement to be
withdrawn and its effectiveness terminated or may postpone amending or
supplementing such Registration Statement. The Company shall give written notice
of its determination to postpone or withdraw a Registration Statement and of the
fact that the Valid Business Reason for such postponement or withdrawal no
longer exists, in each case, promptly after the occurrence thereof to the
Initiating Holder and any other Designated Holders exercising their piggy-back
rights pursuant to clause (b) of this Section 3. Notwithstanding anything to the
contrary contained herein, the Company may not postpone or withdraw a filing
under this Section 3(a) more than once in any twelve month period. Each request
for a Demand Registration by the Initiating Holders shall state the amount of
the Registrable Securities proposed to be sold and the intended method of
disposition thereof.
(b) INCIDENTAL OR "PIGGY-BACK" RIGHTS WITH RESPECT TO A
DEMAND REGISTRATION. Each of the Designated Holders (other than Initiating
Holders which have requested a registration under Section 3(a)) may offer its or
his Registrable
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Securities under any Demand Registration pursuant to this Section 3(b). Within
five (5) Business Days after the receipt of a request for a Demand Registration
from an Initiating Holder, the Company shall (i) give written notice thereof to
all of the Designated Holders (other than Initiating Holders which have
requested a registration under Section 3(a)) and (ii) subject to Section 3(e),
include in such registration all of the Registrable Securities held by such
Designated Holders from whom the Company has received a written request for
inclusion therein within ten (10) days of the receipt by such Designated Holders
of such written notice referred to in clause (i) above. Each such request by
such Designated Holders shall specify the number of Registrable Securities
proposed to be registered. The failure of any Designated Holder to respond
within such 10-day period referred to in clause (ii) above shall be deemed to be
a waiver of such Designated Holder's rights under this Section 3 with respect to
such Demand Registration. Any Designated Holder may waive its rights under this
Section 3 prior to the expiration of such 10-day period by giving written notice
to the Company, with a copy to the Initiating Holders. If a Designated Holder
sends the Company a written request for inclusion of part or all of such
Designated Holder's Registrable Securities in a registration, such Designated
Holder shall not be entitled to withdraw or revoke such request without the
prior written consent of the Company in its sole discretion unless, as a result
of facts or circumstances arising after the date on which such request was made
relating to the Company or to market conditions, such Designated Holder
reasonably determines that participation in such registration would have a
material adverse effect on such Designated Holder.
(c) EFFECTIVE DEMAND REGISTRATION. The Company shall use
its reasonable best efforts to cause any such Demand Registration to become and
remain effective not later than sixty (60) days after it receives a request
under Section 3(a) hereof. A registration shall not constitute a Demand
Registration until it has become effective and remains continuously effective
for the lesser of (i) the period during which all Registrable Securities
registered in the Demand Registration are sold and (ii) 120 days; PROVIDED,
HOWEVER, that a registration shall not constitute a Demand Registration if (x)
after such Demand Registration has become effective, such registration or the
related offer, sale or distribution of Registrable Securities thereunder is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason not
attributable to the Initiating Holders and such interference is not thereafter
eliminated or (y) the conditions specified in the underwriting agreement, if
any, entered into in connection with such Demand Registration are not satisfied
or waived, other than by reason of a failure by the Initiating Holder or (z)
less than 75% of the Registrable Securities requested to be included in any such
Demand Registration are not so included or are not sold pursuant to such Demand
Registration.
(d) EXPENSES. The Company shall pay all Registration
Expenses in connection with a Demand Registration, whether or not such Demand
Registration becomes effective.
(e) UNDERWRITING PROCEDURES. If the Company or the
Initiating Holders holding a majority of the Registrable Securities held by all
of the Initiating Holders so elect, the Company shall use its reasonable best
efforts to cause such Demand
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Registration to be in the form of a firm commitment underwritten offering and
the managing underwriter or underwriters selected for such offering shall be the
Approved Underwriter selected in accordance with Section 3(f). In connection
with any Demand Registration under this Section 3 involving an underwritten
offering, none of the Registrable Securities held by any Designated Holder
making a request for inclusion of such Registrable Securities pursuant to
Section 3(b) hereof shall be included in such underwritten offering unless such
Designated Holder accepts the terms of the offering as agreed upon by the
Company, the Initiating Holders and the Approved Underwriter, and then only in
such quantity as will not, in the opinion of the Approved Underwriter,
jeopardize the success of such offering by the Initiating Holders. If the
Approved Underwriter advises the Company that the aggregate amount of such
Registrable Securities requested to be included in such offering is sufficiently
large to have a material adverse effect on the success of such offering, then
the Company shall include in such registration only the aggregate amount of
Registrable Securities that the Approved Underwriter believes may be sold
without any such material adverse effect and shall reduce the amount of
Registrable Securities to be included in such registration, FIRST by eliminating
any shares included by the Company, SECOND as to the Designated Holders (who are
not Initiating Holders and who requested to participate in such registration
pursuant to Section 3(b) hereof) as a group, if any, and THIRD as to the
Initiating Holders as a group, pro rata within each group based on the number of
Registrable Securities owned by each such Designated Holder or Initiating
Holder, as the case may be.
(f) SELECTION OF UNDERWRITERS. If any Demand Registration
or Shelf Registration, as the case may be, of Registrable Securities is in the
form of an underwritten offering, the Company shall select and obtain an
investment banking firm of national reputation to act as the managing
underwriter of the offering (the "APPROVED UNDERWRITER"); PROVIDED, HOWEVER,
that the Approved Underwriter shall, in any case, also be approved by the
Initiating Holders or Shelf Initiating Holders, as the case may be, such
approval not to be unreasonably withheld.
4. INCIDENTAL OR "PIGGY-BACK" REGISTRATION.
(a) REQUEST FOR INCIDENTAL REGISTRATION. Subject to
certain restrictions on transfer set forth in Section 8.5 of the Stock Purchase
Agreement, if at any time after the date hereof the Company proposes to file a
Registration Statement under the Securities Act with respect to an offering by
the Company for its own account (other than a Registration Statement on Form S-4
or S-8 or any successor thereto) or for the account of any stockholder of the
Company other than the Designated Holders, then the Company shall give written
notice of such proposed filing to each of the Designated Holders at least twenty
(20) days before the anticipated filing date, and such notice shall describe the
proposed registration and distribution and offer such Designated Holders the
opportunity to register the number of Registrable Securities as each such
Designated Holder may request (an "INCIDENTAL REGISTRATION"). The Company shall
use its reasonable best efforts (within twenty (20) days of the notice provided
for in the preceding sentence) to cause the managing underwriter or underwriters
in the case of a proposed underwritten offering (the "COMPANY UNDERWRITER") to
permit each of the Designated Holders who have requested in writing to
participate in the Incidental Registration to include its or his
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Registrable Securities in such offering on the same terms and conditions as the
securities of the Company or the account of such other stockholder, as the case
may be, included therein. In connection with any Incidental Registration under
this Section 4(a) involving an underwritten offering, the Company shall not be
required to include any Registrable Securities in such underwritten offering
unless the Designated Holders thereof accept the terms of the underwritten
offering as agreed upon between the Company, such other stockholders, if any,
and the Company Underwriter, and then only in such quantity as the Company
Underwriter believes will not jeopardize the success of the offering by the
Company. If the Company Underwriter determines that the registration of all or
part of the Registrable Securities which the Designated Holders have requested
to be included would materially adversely affect the success of such offering,
then the Company shall be required to include in such Incidental Registration,
to the extent of the amount that the Company Underwriter believes may be sold
without causing such adverse effect, FIRST, all of the securities to be offered
for the account of the Company; SECOND, the Registrable Securities to be offered
for the account of the Designated Holders pursuant to this Section 4, pro rata
based on the number of Registrable Securities owned by each such Designated
Holder; THIRD, the securities held by any other stockholder of the Company that
the Company is contractually obligated to include in such Registration Statement
pursuant to a contract entered into prior to March 26, 2002 and set forth in
SCHEDULE 1; and FOURTH, any other securities requested to be included in such
offering.
(b) EXPENSES. The Company shall bear all Registration
Expenses in connection with any Incidental Registration pursuant to this Section
4, whether or not such Incidental Registration becomes effective.
5. SHELF REGISTRATION.
(a) REQUEST FOR A SHELF REGISTRATION. Subject to certain
restrictions on transfer set forth in Section 8.5 of the Stock Purchase
Agreement, at any time commencing after the date hereof, in the event that the
Company shall receive from one or more of (i) the Commonwealth Stockholders,
upon the affirmative vote of the holders of a majority of the Registrable
Securities held by the Commonwealth Stockholders, or (ii) the General Atlantic
Stockholders as a group, acting through GAP LLC or their written designee (each,
a "SHELF INITIATING HOLDER" and together, the "SHELF INITIATING HOLDERS"), a
written request that the Company register, under the Securities Act on Form S-3
(or any successor form then in effect) (a "SHELF REGISTRATION"), all or a
portion of the Registrable Securities owned by such Shelf Initiating Holders on
a shelf registration to be offered on a continuous basis, then the Company shall
register on Form S-3 all or such portion of the Registrable Securities owned by
such Shelf Initiating Holders and requested to be registered on such shelf
Registration and to be offered on a continuous basis. The Company shall give
written notice of such request to all of the Designated Holders (other than
Shelf Initiating Holders which have requested a Shelf Registration under this
Section 5(a)) at least ten (10) days before the anticipated filing date of such
Shelf Registration, and such notice shall describe the proposed registration and
offer such Designated Holders the opportunity to register the number of
Registrable Securities as each such Designated Holder may request in writing to
the Company, given within ten (10) days after their receipt from the Company of
the written notice of such
11
registration. The Shelf Registration pursuant to this Section 5(a) shall be for
an offering on a continuous basis pursuant to rule 415 under the Securities Act
and the Company shall, subject to the Securities Act, maintain the effectiveness
of the Shelf Registration until all of the Registrable Securities included on
such Shelf Registration have been disposed of or otherwise no longer constitute
Registrable Securities. With respect to each Shelf Registration, the Company
shall, subject to Section 5(b), (i) include in such offering the Registrable
Securities of the Shelf Initiating Holders and the Designated Holders (other
than Shelf Initiating Holders which have requested a Shelf Registration under
this Section 5(a)) who have requested in writing to participate in such
registration on the same terms and conditions as the Registrable Securities of
the Shelf Initiating Holders included therein and (ii) use its reasonable best
efforts to cause such registration pursuant to this Section 5(a) to become and
remain effective as soon as practicable, but in any event not later than
forty-five (45) days after it receives a request therefor.
(b) SHELF UNDERWRITING PROCEDURES. If the Shelf
Initiating Holders holding a majority of the Registrable Securities held by all
of the Shelf Initiating Holders so elect, the Company shall use its reasonable
best efforts to cause either (i) such Shelf Registration pursuant to this
Section 5 to be in the form of a firm commitment underwritten offering or (ii) a
supplement to an effective Shelf Registration to be filed with the Commission in
accordance with the Securities Act in order to effect a firm commitment
underwritten offering and in either case the managing underwriter or
underwriters selected for such offering shall be the Approved Underwriter
selected in accordance with Section 3(f). In connection with any Shelf
Registration under Section 5(a) involving an underwritten offering, the Company
shall not be required to include any Registrable Securities in such underwritten
offering unless the Designated Holders thereof accept the terms of the
underwritten offering as agreed upon between the Company, the Approved
Underwriter and the Shelf Initiating Holders (which in any case shall not
require the Designated Holders to make any representations or warranties about
the Company), and then only in such quantity as such underwriter believes will
not jeopardize the success of such offering by the Shelf Initiating Holders. If
the Approved Underwriter believes that the registration of all or part of the
Registrable Securities which the Shelf Initiating Holders and the other
Designated Holders have requested to be included would materially adversely
affect the success of such public offering, then the Company shall be required
to include in the underwritten offering, to the extent of the amount that the
Approved Underwriter believes may be sold without causing such adverse effect,
FIRST, all of the Registrable Securities to be offered for the account of the
Shelf Initiating Holders, pro rata based on the number of Registrable Securities
owned by such Shelf Initiating Holders; SECOND, the Registrable Securities to be
offered for the account of the other Designated Holders who requested inclusion
of their Registrable Securities pursuant to Section 5(a), pro rata based on the
number of Registrable Securities owned by such Designated Holders; and THIRD,
any other securities requested to be included in such offering.
(c) EXPENSES. The Company shall bear all Registration
Expenses in connection with any Shelf Registration pursuant to this Section 5,
whether or not such Shelf Registration become effective.
12
(d) NO DEMAND REGISTRATION. No registration requested by
any Shelf Initiating Holder pursuant to this Section 5 shall be deemed a Demand
Registration pursuant to Section 3.
6. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY DESIGNATED HOLDERS. To
the extent (i) requested by the Approved Underwriter or the Company Underwriter,
as the case may be, in the case of an underwritten public offering and (ii) all
of the Company's officers, directors and holders in excess of one percent (1%)
of its outstanding capital stock execute agreements identical to those referred
to in this Section 6(a), each Designated Holder agrees (x) not to effect any
public sale or distribution of any Registrable Securities or of any securities
convertible into or exchangeable or exercisable for such Registrable Securities,
including a sale pursuant to Rule 144 under the Securities Act, or offer to
sell, contract to sell (including without limitation any short sale), grant any
option to purchase or enter into any hedging or similar transaction with the
same economic effect as a sale any Registrable Securities and (y) not to make
any request for a Demand Registration or Shelf Registration during the ninety
(90) day period or such shorter period, if any, mutually agreed upon by such
Designated Holder and the requesting party beginning on the effective date of
the Registration Statement (except as part of such registration) for such public
offering. No Designated Holder of Registrable Securities subject to this Section
6(a) shall be released from any obligation under any agreement, arrangement or
understanding entered into pursuant to this Section 6(a) unless all other
Designated Holders of Registrable Securities subject to the same obligation are
also released.
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The
Company agrees not to effect any public sale or distribution of any of its
securities, or any securities convertible into or exchangeable or exercisable
for such securities (except pursuant to registrations on Form S-4 or S-8 or any
successor thereto), during the period beginning on the effective date of any
Registration Statement in which the Designated Holders of Registrable Securities
are participating and ending on the earlier of (i) the date on which all
Registrable Securities registered on such Registration Statement are sold and
(ii) 120 days after the effective date of such Registration Statement (except as
part of such registration).
7. REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF THE COMPANY. Whenever registration of
Registrable Securities has been requested pursuant to Section 3, Section 4 or
Section 5 of this Agreement, the Company shall use its reasonable best efforts
to effect the registration and sale of such Registrable Securities in accordance
with the intended method of distribution thereof as quickly as practicable, and
in connection with any such request, the Company shall, as expeditiously as
possible:
(i) prepare and file with the Commission a
Registration Statement on any form for which the Company then qualifies or which
counsel for the
13
Company shall deem appropriate and which form shall be available for the sale of
such Registrable Securities in accordance with the intended method of
distribution thereof, and cause such Registration Statement to become effective;
PROVIDED, HOWEVER, that (x) before filing a Registration Statement or prospectus
or any amendments or supplements thereto, the Company shall provide counsel
selected by the Designated Holders holding a majority of the Registrable
Securities being registered in such registration ("HOLDERS' COUNSEL") and any
other Inspector with an adequate and appropriate opportunity to review and
comment on such Registration Statement and each prospectus included therein (and
each amendment or supplement thereto) to be filed with the Commission, subject
to such documents being under the Company's control, and (y) the Company shall
notify the Holders' Counsel and each seller of Registrable Securities of any
stop order issued or threatened by the Commission and take all action required
to prevent the entry of such stop order or to remove it if entered;
(ii) prepare and file with the Commission such
amendments and supplements to such Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such Registration
Statement effective for the lesser of (x) 120 days and (y) such shorter period
which will terminate when all Registrable Securities covered by such
Registration Statement have been sold; PROVIDED, that with respect to a Shelf
Registration, the Company shall keep such Registration Statement effective until
all Registrable Securities covered by such Registration Statement have been
sold; and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
(iii) furnish to each seller of Registrable
Securities, prior to filing a Registration Statement, at least one copy of such
Registration Statement as is proposed to be filed, and thereafter such number of
copies of such Registration Statement, each amendment and supplement thereto (in
each case including all exhibits thereto), and the prospectus included in such
Registration Statement (including each preliminary prospectus) and any
prospectus filed under Rule 424 under the Securities Act as each such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(iv) register or qualify such Registrable
Securities under such other securities or "blue sky" laws of such jurisdictions
as any seller of Registrable Securities may request, and to continue such
qualification in effect in such jurisdiction for as long as permissible pursuant
to the laws of such jurisdiction, or for as long as any such seller requests or
until all of such Registrable Securities are sold, whichever is shortest, and do
any and all other acts and things which may be reasonably necessary or advisable
to enable any such seller to consummate the disposition in such jurisdictions of
the Registrable Securities owned by such seller; PROVIDED, HOWEVER, that the
Company shall not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 7(a)(iv), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any such jurisdiction;
14
(v) notify each seller of Registrable Securities
at any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such Registration Statement contains
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading and the
Company shall promptly prepare a supplement or amendment to such prospectus and
furnish to each seller of Registrable Securities a reasonable number of copies
of such supplement to or an amendment of such prospectus as may be necessary so
that, after delivery to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(vi) enter into and perform customary agreements
(including an underwriting agreement in customary form with the Approved
Underwriter or Company Underwriter, if any, selected as provided in Section 3,
Section 4 or Section 5, as the case may be) and take such other actions as are
prudent and reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities, including causing its officers to
participate in "road shows" and other information meetings organized by the
Approved Underwriter or Company Underwriter;
(vii) make available at reasonable times for
inspection by any seller of Registrable Securities, any managing underwriter
participating in any disposition of such Registrable Securities pursuant to a
Registration Statement, Holders' Counsel and any attorney, accountant or other
agent retained by any such seller or any managing underwriter (each, an
"INSPECTOR" and collectively, the "INSPECTORS"), all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries (collectively, the "RECORDS") as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's and its subsidiaries' officers, directors and employees, and the
independent public accountants of the Company, to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement. Records that the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors (and the Inspectors shall confirm their agreement in
writing in advance to the Company if the Company shall so request) unless (x)
the disclosure of such Records is necessary, in the Company's judgment, to avoid
or correct a misstatement or omission in the Registration Statement, (y) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction after exhaustion of all appeals therefrom or (z)
the information in such Records was known to the Inspectors on a
non-confidential basis prior to its disclosure by the Company or has been made
generally available to the public. Each seller of Registrable Securities agrees
that it shall, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
15
(viii) if such sale is pursuant to an underwritten
offering, obtain a "cold comfort" letters dated the effective date of the
Registration Statement and the date of the closing under the underwriting
agreement from the Company's independent public accountants in customary form
and covering such matters of the type customarily covered by "cold comfort"
letters as Holders' Counsel or the managing underwriter reasonably requests;
(ix) furnish, at the request of any seller of
Registrable Securities on the date such securities are delivered to the
underwriters for sale pursuant to such registration or, if such securities are
not being sold through underwriters, on the date the Registration Statement with
respect to such securities becomes effective, an opinion, dated such date, of
counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the seller making such request,
covering such legal matters with respect to the registration in respect of which
such opinion is being given as the underwriters, if any, and such seller may
reasonably request and are customarily included in such opinions;
(x) comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable but no later than fifteen (15) months after the
effective date of the Registration Statement, an earnings statement covering a
period of twelve (12) months beginning after the effective date of the
Registration Statement, in a manner which satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(xi) cause all such Registrable Securities to be
listed on each securities exchange on which similar securities issued by the
Company are then listed, PROVIDED that the applicable listing requirements are
satisfied;
(xii) keep Holders' Counsel advised in writing as
to the initiation and progress of any registration under Section 3, Section 4 or
Section 5 hereunder;
(xiii) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD; and
(xiv) take all other steps reasonably necessary to
effect the registration of the Registrable Securities contemplated hereby.
(b) SELLER INFORMATION. The Company may require each
seller of Registrable Securities as to which any registration is being effected
to furnish, and such seller shall furnish, to the Company such information
regarding the distribution of such securities as the Company may from time to
time reasonably request in writing.
(c) NOTICE TO DISCONTINUE. Each Designated Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 7(a)(v), such Designated Holder shall forthwith
discontinue
16
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Designated Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
7(a)(v) and, if so directed by the Company, such Designated Holder shall deliver
to the Company (at the Company's expense) all copies, other than permanent file
copies then in such Designated Holder's possession, of the prospectus covering
such Registrable Securities which is current at the time of receipt of such
notice. If the Company shall give any such notice, the Company shall extend the
period during which such Registration Statement shall be maintained effective
pursuant to this Agreement (including, without limitation, the period referred
to in Section 7(a)(ii)) by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 7(a)(v) to
and including the date when sellers of such Registrable Securities under such
Registration Statement shall have received the copies of the supplemented or
amended prospectus contemplated by and meeting the requirements of Section
7(a)(v).
(d) REGISTRATION EXPENSES. The Company shall pay all
expenses arising from or incident to its performance of, or compliance with,
this Agreement, including, without limitation, (i) Commission, stock exchange
and NASD registration and filing fees, (ii) all fees and expenses incurred in
complying with securities or "blue sky" laws (including reasonable fees, charges
and disbursements of counsel to any underwriter incurred in connection with
"blue sky" qualifications of the Registrable Securities as may be set forth in
any underwriting agreement), (iii) all printing, messenger and delivery
expenses, (iv) the fees, charges and expenses of counsel to the Company and of
its independent public accountants and any other accounting fees, charges and
expenses incurred by the Company (including, without limitation, any expenses
arising from any "cold comfort" letters or any special audits incident to or
required by any registration or qualification) and any reasonable legal fees,
charges and expenses incurred by one counsel to the Designated Holder, and (v)
any liability insurance or other premiums for insurance obtained by the Company
in connection with any Demand Registration or piggy-back registration thereon,
Incidental Registration or Shelf Registration pursuant to the terms of this
Agreement, regardless of whether such Registration Statement is declared
effective. All of the expenses described in the preceding sentence of this
Section 7(d) are referred to herein as "REGISTRATION EXPENSES." The Designated
Holders of Registrable Securities sold pursuant to a Registration Statement
shall bear the expense of any broker's commission or underwriter's discount or
commission relating to registration and sale of such Designated Holders'
Registrable Securities and, subject to clause (iv) above, shall bear the fees
and expenses of their own counsel.
8. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Designated Holder, its partners, directors,
officers, affiliates and each Person who controls (within the meaning of Section
15 of the Securities Act) such Designated Holder from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation) (each, a "LIABILITY" and collectively, "LIABILITIES"), arising
out of or based upon any untrue, or
17
allegedly untrue, statement of a material fact contained in any Registration
Statement, prospectus or preliminary prospectus or notification or offering
circular (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or arising out of or based upon 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 under the
circumstances such statements were made, except insofar as such Liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission contained in such Registration Statement,
preliminary prospectus or final prospectus in reliance and in conformity with
information concerning such Designated Holder furnished in writing to the
Company by such Designated Holder expressly for use therein, including, without
limitation, the information furnished to the Company pursuant to Section 8(b).
The Company shall also provide customary indemnities to any underwriters of the
Registrable Securities, their officers, directors and employees and each Person
who controls such underwriters (within the meaning of Section 15 of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the Designated Holders of Registrable Securities.
(b) INDEMNIFICATION BY DESIGNATED HOLDERS. In connection
with any Registration Statement in which a Designated Holder is participating
pursuant to Section 3, Section 4 or Section 5 hereof, each such Designated
Holder shall promptly furnish to the Company in writing such information with
respect to such Designated Holder as the Company may reasonably request or as
may be required by law for use in connection with any such Registration
Statement or prospectus and all information required to be disclosed in order to
make the information previously furnished to the Company by such Designated
Holder not materially misleading or necessary to cause such Registration
Statement not to omit a material fact with respect to such Designated Holder
necessary in order to make the statements therein not misleading. Each
Designated Holder agrees to indemnify and hold harmless the Company, any
underwriter retained by the Company and each Person who controls the Company or
such underwriter (within the meaning of Section 15 of the Securities Act) to the
same extent as the foregoing indemnity from the Company to the Designated
Holders, but only if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with information with
respect to such Designated Holder furnished in writing to the Company by such
Designated Holder expressly for use in such Registration Statement or
prospectus, including, without limitation, the information furnished to the
Company pursuant to this Section 8(b); PROVIDED, HOWEVER, that the total amount
to be indemnified by such Designated Holder pursuant to this Section 8(b) shall
be limited to the net proceeds (after deducting the underwriters' discounts and
commissions) received by such Designated Holder in the offering to which the
Registration Statement or prospectus relates.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder (the "INDEMNIFIED PARTY") agrees to give
prompt written notice to the indemnifying party (the "INDEMNIFYING PARTY") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement;
18
PROVIDED, HOWEVER, that the failure so to notify the Indemnifying Party shall
not relieve the Indemnifying Party of any Liability that it may have to the
Indemnified Party hereunder (except to the extent that the Indemnifying Party is
materially prejudiced or otherwise forfeits substantive rights or defenses by
reason of such failure). If notice of commencement of any such action is given
to the Indemnifying Party as above provided, the Indemnifying Party shall be
entitled to participate in and, to the extent it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and reasonably satisfactory
to such Indemnified Party. The Indemnified Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be paid by the Indemnified Party
unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying
Party fails to assume the defense of such action with counsel reasonably
satisfactory to the Indemnified Party or (iii) the named parties to any such
action (including any impleaded parties) include both the Indemnifying Party and
the Indemnified Party and such parties have been advised by such counsel that
either (x) representation of such Indemnified Party and the Indemnifying Party
by the same counsel would be inappropriate under applicable standards of
professional conduct or (y) there may be one or more legal defenses available to
the Indemnified Party which are different from or additional to those available
to the Indemnifying Party. In any of such cases, the Indemnifying Party shall
not have the right to assume the defense of such action on behalf of such
Indemnified Party, it being understood, however, that the Indemnifying Party
shall not be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all Indemnified Parties. No
Indemnifying Party shall be liable for any settlement entered into without its
written consent, which consent shall not be unreasonably withheld. No
Indemnifying Party shall, without the consent of such Indemnified Party, effect
any settlement of any pending or threatened proceeding in respect of which such
Indemnified Party is a party and indemnity has been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability for claims that are the subject matter
of such proceeding.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 8 from the Indemnifying Party is unavailable to an Indemnified
Party hereunder in respect of any Liabilities referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Liabilities in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions which resulted in such Liabilities, as well as any other relevant
equitable considerations. The relative faults of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Liabilities referred to above shall be
deemed to include, subject to the limitations set forth in Sections 8(a), 8(b)
and 8(c), any
19
legal or other fees, charges or expenses reasonably incurred by such party in
connection with any investigation or proceeding; PROVIDED that the total amount
to be contributed by such Designated Holder shall be limited to the net proceeds
(after deducting the underwriters' discounts and commissions) received by such
Designated Holder in the offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
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.
9. RULE 144. The Company covenants that it shall (a) file any
reports required to be filed by it under the Exchange Act and (b) take such
further action as each Designated Holder may reasonably request (including
providing any information necessary to comply with Rule 144 under the Securities
Act), all to the extent required from time to time to enable such Designated
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time, or Regulation S
under the Securities Act or (ii) any similar rules or regulations hereafter
adopted by the Commission. The Company shall, upon the request of any Designated
Holder, deliver to such Designated Holder a written statement as to whether it
has complied with such requirements.
10. MISCELLANEOUS.
(a) RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of
this Agreement shall apply to the full extent set forth herein with respect to
(i) the shares of Common Stock, (ii) any and all shares of voting common stock
of the Company into which the shares of Common Stock are converted, exchanged or
substituted in any recapitalization or other capital reorganization by the
Company and (iii) any and all equity securities of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in conversion of, in exchange for
or in substitution of, the shares of Common Stock and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by merger, consolidation, sale of
assets or otherwise) to enter into a new registration rights agreement with the
Designated Holders on terms substantially the same as this Agreement as a
condition of any such transaction.
(b) NO INCONSISTENT AGREEMENTS. Except for the rights
granted pursuant to the agreements set forth on SCHEDULE 1, the Company
represents and warrants that it has not granted to any Person the right to
request or require the Company to register any securities issued by the Company,
other than the rights granted to the
20
Designated Holders herein. The Company shall not enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Designated Holders in this Agreement or grant any additional registration rights
to any Person or with respect to any securities which are not Registrable
Securities which are prior in right to or inconsistent with the rights granted
in this Agreement, except that the Company may grant the registration rights
held by the Commonwealth Stockholders to any Subsequent Commonwealth Stockholder
and registration rights held by the General Atlantic Stockholders to any
Subsequent General Atlantic Purchaser.
(c) REMEDIES. The Designated Holders, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, shall be entitled to specific performance of their rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive in any action for specific
performance the defense that a remedy at law would be adequate.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by (i) the Company, (ii) the
Commonwealth Stockholders holding Registrable Securities representing (after
giving effect to any adjustments) at least a majority of the aggregate number of
Registrable Securities owned by all of the Commonwealth Stockholders and (iii)
the General Atlantic Stockholders holding Registrable Securities representing
(after giving effect to any adjustments) at least a majority of the aggregate
number of Registrable Securities owned by all of the General Atlantic
Stockholders. Any such written consent shall be binding upon the Company and all
of the Designated Holders. Notwithstanding the first sentence of this Section
10(d), the Company, without the consent of any other party, may amend this
Agreement to add any Subsequent Commonwealth Purchaser or Subsequent General
Atlantic Purchaser as a party to this Agreement as a Subsequent Commonwealth
Stockholder or General Atlantic Stockholder, as the case may be.
(e) NOTICES. All notices, demands and other
communications provided for or permitted hereunder shall be made in writing and
shall be made by registered or certified first-class mail, return receipt
requested, telecopier, courier service or personal delivery:
(i) if to the Company:
ProxyMed, Inc.
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ββββ ββββββββββ, ββ βββββ�
Telecopy: (βββ�) βββ�-ββββ
Attention: βββββββ� β�. ββββββ, Chief Executive Officer
ββββββ β�. βββββββββ�, In-House Counsel
21
with a copy to:
Holland & Knight LLP
βββ� ββββββββ ββββββ, βββββ� ββββ
βββββ�, ββ βββββ�
Telecopy: (βββ�) βββ�-ββββ
Attention: ββββββ β�. ββββ, Esq.
(ii) if to GAP 74 LP, GAP 77 LP, GapStar, GAP
Coinvestment, GAP Coinvestments III or GAP
Coinvestments IV:
c/o General Atlantic Service Corporation
β� ββββββββ βββββ�
βββββββββ�, ββ βββββ�
Telecopy: (βββ�) βββ�-ββββ
Attention: βββββββ� ββββββ
with a copy to:
ββββ, Weiss, Rifkind, βββββββ� & ββββββββ LLP
ββββ ββββββ ββ βββ� ββββββββ
βββ� ββββ, ββ βββββ�-ββββ
Telecopy: (βββ�) βββ�-ββββ
Attention: βββββββ� β�. ββββ, Esq.
(iii) if to GmbH Coinvestment:
c/o General Atlantic Partners GmbH
βββββββββββ� ββ
βββββ� βββββββββββ�
βββββββ�
Telecopy: 011-49-211-602-888-89
Attention:
with a copy to:
General Atlantic Service Corporation
β� ββββββββ βββββ�
βββββββββ�, ββ βββββ�
Telecopy: (βββ�) βββ�-ββββ
Attention: βββββββ� ββββββ
ββββββ β�. ββββββ
and
ββββ, Weiss, Rifkind, βββββββ� & ββββββββ
22
ββββ ββββββ ββ βββ� ββββββββ
βββ� ββββ, ββ βββββ�-ββββ
Telecopy: (βββ�) βββ�-ββββ
Attention: βββββββ� β�. ββββ, Esq.
(iv) if to PVC or ComVest:
c/o ComVest Investment Partners
βββ� βββββ� ββββββ
βββ� ββββ, ββ βββββ�
Telecopy: (βββ�) βββ�-ββββ
Attention: ββββ ββββββββ
with a copy to:
βββββββββ� Traurig LLP
βββ� ββββ ββββββ
βββ� ββββ, ββ βββββ�
Telecopy: (βββ�) βββ�-ββββ
Attention: ββββ β�. Annex
(v) if to ββββ:
ββββ Ventures, LLC
βββ� ββββ ββββββ ββββ
ββββββ, ββ βββββ�-ββββ
Telecopy: (βββ�) βββ�-ββββ
Attention: ββββββ βββββ�
with a copy to:
βββββββββ� βββββββ� LLP
βββ� ββββ ββββββ
βββ� ββββ, ββ βββββ�
Telecopy: (βββ�) βββ�-ββββ
Attention: ββββ β�. Annex
(vi) if to ββββββ
ββββββ ββββββ
ββββ βββββββββ� ββββ ββ ββββ
βββββββ�, ββ βββββ�-ββββ
Telecopy: (βββ�) βββ�-ββββ
with a copy to:
βββββββββ� βββββββ� LLP
23
βββ� ββββ ββββββ
βββ� ββββ, ββ βββββ�
Telecopy: (βββ�) βββ�-ββββ
Attention: ββββ β�. Annex
All such notices, demands and other communications shall be deemed to
have been duly given when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial courier service; five (5)
Business Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is mechanically acknowledged, if telecopied. Any party may by
notice given in accordance with this Section 10(e) designate another address or
Person for receipt of notices hereunder.
(f) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES.
This Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of the parties hereto as hereinafter provided. The Demand
Registration rights and the Shelf Registration rights and related rights of the
Commonwealth Stockholders and the General Atlantic Stockholders contained in
Sections 3 and 5 hereof, shall be (i) with respect to any Registrable Security
that is transferred to an Affiliate of a Commonwealth Stockholder or a General
Atlantic Stockholder, automatically transferred to such Affiliate and (ii) with
respect to any Registrable Security that is transferred in all cases to a
non-Affiliate, transferred only with the consent of the Company which consent
shall not be unreasonably withheld. The incidental or "piggy-back" registration
rights of the Designated Holders contained in Sections 3(b), 4 and 5 hereof and
the other rights of each of the Designated Holders with respect thereto shall
be, with respect to any Registrable Security, automatically transferred to any
Person who is the transferee of such Registrable Security. All of the
obligations of the Company hereunder shall survive any such transfer. Except as
provided in Section 8, no Person other than the parties hereto and their
successors and permitted assigns is intended to be a beneficiary of this
Agreement.
(g) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(j) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not
24
be in any way impaired, unless the provisions held invalid, illegal or
unenforceable shall substantially impair the benefits of the remaining
provisions hereof.
(k) RULES OF CONSTRUCTION. Unless the context otherwise
requires, references to sections or subsections refer to sections or subsections
of this Agreement.
(l) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
with respect to the subject matter contained herein. There are no restrictions,
promises, representations, warranties or undertakings with respect to the
subject matter contained herein, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings among
the parties with respect to such subject matter, including, without limitation,
the Original Agreement.
(m) FURTHER ASSURANCES. Each of the parties shall execute
such documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
(n) OTHER AGREEMENTS. Nothing contained in this Agreement
shall be deemed to be a waiver of, or release from, any obligations any party
hereto may have under, or any restrictions on the transfer of Registrable
Securities or other securities of the Company imposed by, any other agreement
including, but not limited to, the Stock Purchase Agreement or the Warrants.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Registration Rights Agreement on the date first
written above.
PROXYMED, INC.
By: /s/ βββββ� β�. βββ�
--------------------------------------
Name: βββββ� β�. βββ�
Title: President and COO
GENERAL ATLANTIC PARTNERS 74, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ βββββββ� ββββββ
----------------------------------
Name: βββββββ� ββββββ
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 77, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ βββββββ� ββββββ
----------------------------------
Name: βββββββ� ββββββ
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ βββββββ� ββββββ
--------------------------------------
Name: βββββββ� ββββββ
Title: A General Partner
Signature Page to Registration Rights Agreement
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its Managing Member
By: /s/ βββββββ� ββββββ
----------------------------------
Name: βββββββ� ββββββ
Title: A Managing Member
GAPCO GMBH & CO. KG
By: GAPCO MANAGEMENT GMBH,
its General Partner
By: /s/ βββββββ� ββββββ
----------------------------------
Name: βββββββ� ββββββ
Title: A Managing Director
PVC FUNDING PARTNERS, LLC
By: /s/ βββββββ� ββββ
--------------------------------------
Name: βββββββ� ββββ
Title: Manager
COMVEST VENTURE PARTNERS, L.P.
By: /s/ βββββββ� ββββ
--------------------------------------
Name: βββββββ� ββββ
Title: Manager
ββββ VENTURES, LLC
By: /s/ βββββ� β�. ββββ
--------------------------------------
Name: βββββ� β�. ββββ
Title: Manager
Signature Page to Registration Rights Agreement
ββββββ ββββββ
By: /s/ ββββββ ββββββ
--------------------------------------
Name: ββββββ ββββββ
Signature Page to Registration Rights Agreement
GAP COINVESTMENTS III, LLC
By: /s/ βββββββ� ββββββ
----------------------------------
Name: βββββββ� ββββββ
Title: A Managing Member
GAP COINVESTMENTS IV, LLC
By: /s/ βββββββ� ββββββ
----------------------------------
Name: βββββββ� ββββββ
Title: A Managing Member
Signature Page to Registration Rights Agreement
SCHEDULE 1
----------
Investors who participated in the following transactions were given registration
rights. Although all of the shares that are subject to registration have been
registered under the appropriate SEC filing, in the unlikely event that any
respective Form S-3 or Form S-8 is withdrawn or made ineffective, while such
investors have securities registered thereunder, such investors have the right
to have their affected securities re-registered under the applicable SEC form.
1. (Series B) Registration Rights Agreement dated December 23,
1999.
2. (Series B Warrant Exchange) Registration Rights Agreement
dated April 24, 2001.
3. (Series C) Subscription Agreement dated June 6, 2000.
4. (Series C Warrant) Exchange Agreement dated August 15, 2001.
5. (Series C) Conversion Agreement dated December 13, 2001.
6. (Private Placement) Subscription Agreement dated December 21,
2001.
7. Registration Agreement dated December 31, 1998 (in connection
with the acquisition of Key Communications Service, Inc.