EXHIBIT 10.3
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TWELFTH RESTATED REGISTRATION AGREEMENT
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TWELFTH RESTATED REGISTRATION AGREEMENT, dated as of June 18, 1999
("Agreement"), by and among Allscripts, Inc. (the "Company"), those Holders of
the Company's Series A Preferred, Series B Preferred, Series C Preferred, Series
D Preferred, Series F Preferred and Series G Preferred listed in Schedule I
attached hereto (collectively, the "Preferred Holders"), the Holders of the
Extension Guaranty Warrants listed in Schedule II hereto (the "Extension
Guaranty Warrant Holders"), the Holders of the 1996 Extension Guaranty Warrants
listed in Schedule II hereto (the "1996 Extension Guaranty Warrant Holders"),
those Holders of Common listed in Schedule III hereto, which Common
automatically converted from Class B Common at December 31, 1993 (the "Common
Holders"), the Holders of Series H Warrants and H Unit Common listed in Schedule
IV hereto (the "H Unit Holders"), the Holders of Extension Series H Warrants
listed in Schedule IV hereto (the "Extension Series H Warrant Holders"), the
Holders of I Unit Common listed in Schedule V hereto (the "I Unit Common
Holders") and the Holders of Debenture Warrants listed in Schedule VI hereto
(the "Debenture Warrant Holders").
R E C I T A L S
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A. Pursuant to those certain Series A Convertible Preferred Stock Purchase
Agreements by and between the Company and each of the Holders of Series A
Preferred dated as of June 19, 1986 and amended as of April 24, 1987, January
11, 1988, February 17, 1989 and May 12, 1989 and as may be further amended from
time to time (collectively, the "Series A Agreements"), the Company sold to the
Holders of Series A Preferred an aggregate of 1,050,000 shares of Series A
Preferred.
B. The Series A Agreements granted certain securities registration rights
to the Holders of Series A Preferred.
C. Pursuant to those certain Series B Convertible Preferred Stock Purchase
Agreements by and between the Company and each of the Holders of Series B
Preferred dated as of April 24, 1987 and amended as of January 11, 1988,
February 17, 1989 and May 12, 1989 and as may be further amended from time to
time (collectively, the "Series B Agreements"), the Company sold to the Holders
of Series B Preferred an aggregate of 533,333 shares of Series B Preferred.
D. The Series B Agreements granted certain securities registration rights
to the Holders of Series B Preferred.
E. Pursuant to that certain Medical Adviser Agreement dated February 23,
1987 and amended as of May 1, 1987 by and between the Company and Northwestern
Physicians Network ("NPN") (the "Adviser Agreement"), subject to NPN satisfying
certain conditions, the Company would have been obligated to issue to NPN
warrants (the "NPN Warrants") to purchase up to 47,280 shares of Common of the
Company.
F. The Company and the Holders of Series A Preferred deemed it desirable
for the Company to grant certain securities registration rights to NPN to induce
NPN to enter into the Adviser Agreement which rights were granted pursuant to
this Registration Agreement.
G. On July 19, 1988 the Company notified NPN that the Company wished to
terminate the Adviser Agreement, effective October 17, 1988, in accordance with
its terms; the Adviser Agreement was thereby terminated and the Company is not
obligated to issue, and has not issued, any NPN Warrants to NPN.
H. Pursuant to those certain Series C Convertible Preferred Stock Purchase
Agreements dated as of January 11, 1988 and amended as of February 17, 1989 and
May 12, 1989 (the "Original Series C Agreements") by and among the Company and
Allstate Insurance Company and Providence Partnership II (collectively, the
"Original Series C Investors"), the Company sold to the Original Series C
Investors an aggregate of 500,000 shares of Original Series C Preferred. In
connection with the issuance of the Original Series C Preferred, the Original
Series C Investors were granted certain securities registration rights, which
registration rights, together with the registration rights of NPN and the
Holders of Series A Preferred and Series B Preferred, were incorporated into a
certain Second Restated Registration Agreement dated as of January 11, 1988 by
and among the Company, NPN and the Holders of Series A Preferred, Series B
Preferred and Original Series C Preferred ("Second Restated Registration
Agreement").
I. The Company has amended and restated the rights and preferences of the
Original Series C Preferred so as to create the Series C Preferred, and has
issued to the Holders of Series C Preferred as listed on Schedule I attached
hereto an aggregate of 2,187,501 shares of Series C Preferred pursuant to the
Original Series C Agreements, certain Series C Senior Convertible Preferred
Stock Purchase Agreements dated as of April 1, 1988 and amended as of February
17, 1989 and May 12, 1989 by and between the Company and each of such Holders
(the "Series C Agreements"), and the Original Series C Stock Dividend.
J. In connection with the sale of the Series C Preferred pursuant to the
Series C Senior Convertible Preferred Stock Purchase Agreements dated as of
April 1, 1988 and the issuance of Series C Preferred pursuant to the Original
Series C Stock Dividend, the Holders of Series C Preferred were granted certain
securities registration rights, which registration rights, together with the
registration rights of NPN and the Holders of Series A Preferred, Series B
Preferred and Original Series C Investors, were incorporated into a certain
Third Restated Registration Agreement dated as of April 22, 1988, by and among
the Company, NPN and the Holders of Series A Preferred, Series B Preferred and
Series C Preferred ("Third Restated Registration Agreement").
K. Pursuant to the Series D Senior Convertible Preferred Stock Purchase
Agreements dated as of May 1, 1989 (collectively, the "Original Series D
Agreements") by and between the Company and the Original Holders of the Series D
Preferred listed on Schedule I attached hereto, the Company sold to the Original
Holders of the Series D Preferred an aggregate of 1,300,000 shares of Series D
Preferred. In connection with the issuance of the Series D Preferred, the
Original Holders of the Series D Preferred were granted certain registration
rights, which registration rights together with the registration rights of the
Holders of the Series A Preferred, Series B Preferred and Series C Preferred,
were incorporated into a Fourth Restated Registration Agreement dated as of May
18, 1989 by and among the Company and the Holders of the Series A Preferred,
Series B Preferred and Series C Preferred and the Original Holders of Series D
Preferred (the "Fourth Restated Registration Agreement").
L. Pursuant to the Purchase Agreements for Series E Super Senior
Convertible Preferred Stock, 8.04% Subordinated Notes due November 30, 1993 and
warrants to purchase shares of Common Stock, dated as of November 15, 1990
(collectively, the "Warrant and Series E Agreements"), the
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Company sold to such Holders an aggregate of 621,819 shares of Series E
Preferred, Notes in an aggregate principal amount of $2,005,372 and warrants to
purchase an aggregate of 716,212 shares of Common (the "8.04% Warrants"). In
connection with the issuance of the 8.04% Warrants and the Series E Preferred,
Holders of the 8.04% Warrants and the Series E Preferred were granted certain
registration rights, which registration rights, together with the registration
rights granted to the Holders of the Series A Preferred, Series B Preferred and
Series C Preferred and the Original Holders of Series D Preferred were
incorporated into a Fifth Restated Registration Agreement, dated as of November
20, 1990 by and among the Company and the Holders of the Series A Preferred,
Series B Preferred, Series C Preferred, Series E Preferred and the 8.04%
Warrants and the Original Holders of Series D Preferred.
M. Pursuant to an Asset Purchase Agreement (the "Mailscripts Asset
Purchase Agreement") between Mailscripts, Inc., an Ohio corporation
("Mailscripts"), Direct Pharmaceutical Corporation, a Delaware corporation, and
the Company, dated as of October 22, 1991, the Company purchased, and
Mailscripts sold, certain assets of Mailscripts for consideration consisting of,
among other things, 800,000 shares of Class B Common.
N. Pursuant to an Asset Purchase Agreement (the "ISP Purchase Agreement")
between ISP Pharmaceuticals, Inc. ("ISP"), a Nevada corporation, and the
Company, dated as of November 22, 1991, the Company purchased, and ISP sold,
certain assets of ISP for consideration consisting of, among other things,
45,446 shares of Class B Common.
O. In connection with the issuance of the Class B Common to Mailscripts
and ISP, Mailscripts and ISP were granted certain registration rights, which
registration rights, together with the registration rights granted to the
Holders of the Series A Preferred, Series B Preferred, Series C Preferred,
Series E Preferred and the 8.04% Warrants and the Original Holders of Series D
Preferred were incorporated into a Sixth Restated Registration Agreement dated
as of November 22, 1991 by and among the Company and the Holders of Series A
Preferred, Series B Preferred, Series C Preferred, Series E Preferred and the
8.04% Warrants, the Original Holders of Series D Preferred, Mailscripts and ISP.
P. Pursuant to the Purchase Agreements for the Company's Series D
Preferred, dated as of December 15, 1991 (the "Series D Agreements"), the
Company sold 444,445 shares of Series D Preferred. In connection with the
issuance of such shares of Series D Preferred, the purchasers of such shares of
Series D Preferred were granted certain registration rights, which registration
rights, together with the registration rights granted to the Holders of the
Series A Preferred, Series B Preferred, Series C Preferred, Series D Preferred,
Series E Preferred, and the 8.04% Warrants, the original Holders of Series D
Preferred, Mailscripts and ISP were incorporated into a Seventh Restated
Registration Agreement dated as of December 30, 1991 by and among the Company
and the Holders of Series A Preferred, Series B Preferred, Series C Preferred,
Series D Preferred, Series E Preferred and the 8.04% Warrants, Mailscripts and
ISP.
Q. Pursuant to the Note Extension Agreement, dated as of January 15, 1993
(the "Note Extension Agreement"), the Company issued warrants to purchase an
aggregate of 53,985 shares of Common (the "1993 Warrants", which together with
the 8.04% Warrants shall hereinafter be collectively referred to as the
"Warrants").
R. Pursuant to the Warrant Purchase Agreement, dated as of January 31,
1993 (the "Warrant Purchase Agreement"), the Company issued warrants to purchase
an aggregate of 721,986 shares of Common (the "Guaranty Warrants"). Pursuant to
the provisions of Section 19 of the Eighth
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Restated Registration Agreement, dated as of January 15, 1993, by and among the
Company, and the Holders of Series A Preferred, Series B Preferred, Series C
Preferred, Series D Preferred, Series E Preferred and the Warrants, Mailscripts
and ISP, the Company and the Holders of Proforma Conversion Stock who executed
the Ninth Restated Registration Agreement and who were parties to the Eighth
Restated Registration Agreement, amended and restated the Eighth Restated
Registration Agreement to provide for the grant to the issuees of the Guaranty
Warrants pursuant to the Warrant Purchase Agreement of certain registration
rights as set forth in the Ninth Restated Registration Agreement dated as of
January 31, 1993 by and among the Company and the Holders of Series A Preferred,
Series B Preferred, Series C Preferred, Series D Preferred, Series E Preferred,
the Warrants and the Guaranty Warrants, Mailscripts and ISP.
S. Pursuant to the Amendment to Warrants and Exchange Agreement, dated as
of September 22, 1994, the Company (i) issued an aggregate of 2,492,781 shares
of Series F Senior Convertible Preferred Stock to the Holders of the Notes and
the Series E Preferred in exchange for the Notes, all accrued but unpaid
interest thereon and all accrued but unpaid dividends on the Series E Preferred,
(ii) issued an aggregate of 621,819 shares of Series G Super Senior Convertible
Preferred Stock to the Holders of the Series E Preferred in exchange for all
issued and outstanding shares of Series E Preferred, (iii) amended and restated
the Warrants and issued Amended and Restated Warrants (as, from time to time,
such warrants may be amended and/or amended and restated, the "Amended and
Restated Warrants") in substitution therefor, and (iv) amended and restated the
Guaranty Warrants and issued Amended and Restated Guaranty Warrants (as, from
time to time, such warrants may be amended and/or amended and restated, the
"Amended and Restated Guaranty Warrants") in substitution therefor.
T. Pursuant to the Warrant Purchase Agreement dated as of September 22,
1994 (the "Extension Guaranty Warrant Purchase Agreement"), the Company issued
warrants to purchase an aggregate of 938,572 shares of Common (as, from time to
time, such warrants may be amended and/or amended and restated, the "Extension
Guaranty Warrants"). Pursuant to Amendment No. 1 dated as of April 30, 1996 to
the Extension Guaranty Warrant Purchase Agreement, the Company issued warrants
to purchase an aggregate of 1,675,090 shares of Common (as, from time to time,
such warrants may be amended and/or amended and restated, the "1996 Extension
Guaranty Warrants").
U. Pursuant to the Purchase Agreements for Series H Superior Senior
Redeemable Preferred Stock, warrants to purchase shares of Common Stock and
shares of Common Stock, dated as of September 22, 1994, the Company issued an
aggregate of 1,361,775 shares of Series H Preferred, warrants to purchase an
aggregate of 13,617,853 shares of Common (as, from time to time, such warrants
may be amended and/or amended and restated, the "Series H Warrants") and
9,078,566 shares of Common (the "H Unit Common"). Pursuant to the provisions of
the Ninth Restated Registration Agreement, dated as of January 31, 1993, by and
among the Company, and the Holders of Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred, Series E Preferred, the Warrants and the
Guaranty Warrants, Mailscripts and ISP, the Ninth Restated Registration
Agreement was amended and restated to combine all registration provisions with
respect to H Unit Common and Common issued upon conversion of all Series A
Preferred, Series B Preferred, Series C Preferred, Series D Preferred, Series F
Preferred, Series G Preferred and the Class B Common and the exercise of the
Amended and Restated Warrants, the Amended and Restated Guaranty Warrants, the
Extension Guaranty Warrants and the Series H Warrants, all as set forth in the
Tenth Restated Registration Agreement, dated as of September 22, 1994.
V. Pursuant to an Agreement, Consent and Waiver, dated as of April 16,
1998, the Company issued warrants to purchase an aggregate of 5,500,000 shares
of Common (as, from time to
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time, such warrants may be amended and/or amended and restated, the "Extension
Series H Warrants") to the Holders of the Series H Preferred.
W. Pursuant to the Exchange Agreement, dated as of April 16, 1998, the
Company issued, among other things, warrants to purchase an aggregate of
8,000,000 shares of Common (as, from time to time, such warrants may be amended
and/or amended and restated, the "Debenture Warrants") to the Holders of the
Debentures in exchange for the Debentures.
X. Pursuant to the Purchase Agreement for Series I Super Superior Senior
Redeemable Preferred Stock and shares of Common Stock, dated as of April 16,
1998, the Company issued an aggregate of up to 1,339,241 shares of Series I
Preferred and up to 27,582,487 shares of Common (the "I Unit Common"). Pursuant
to the provisions of the Tenth Restated Registration Rights Agreement, dated as
of September 22, 1994, the Tenth Restated Registration Agreement was amended and
restated to combine all registration provisions then existing with those with
respect to the Extension Series H Warrants, the Debenture Warrants and the I
Unit Common, all as set forth in the Eleventh Restated Registration Agreement,
dated as of April 16, 1998 (the "Eleventh Restated Registration Agreement").
Y. This Agreement specifically amends and restates the Eleventh Restated
Registration Agreement, dated as of April 16, 1998, by and among the Company,
and the Holders of Series A Preferred, Series B Preferred, Series C Preferred,
Series D Preferred, Series F Preferred, Series G Preferred, the Extension
Guaranty Warrants, the 1996 Extension Guaranty Warrants, Series H Warrants and H
Unit Common, the Extension Series H Warrants, the I Unit Common, the Debenture
Warrants, Mailscripts and ISP.
A G R E E M E N T S
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In consideration of the mutual covenants herein contained and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. As used in this Agreement:
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"Amended and Restated Guaranty Warrants" shall have the meaning given such
term in the Recitals hereto.
"Amended and Restated Warrants" shall have the meaning given such term in
the Recitals hereto.
"Class B Common" means the Company's Class B Common Stock, $.01 par value
per share, described in Article 4 of the Company's Articles of Incorporation,
and any Stock into which such stock may hereafter be changed, other than Voting
Common.
"Common" means the Company's Voting Common and Class B Common, and any
Stock into which such Voting Common and Class B Common may hereafter be changed.
"Company" means Allscripts, Inc., an Illinois corporation, and all
successor corporations thereto.
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"Conversion Stock" means (a) H Unit Common and I Unit Common and (b) Voting
Common issued upon conversion or exercise, as the case may be, of (i) Series A
Preferred sold pursuant to the Series A Agreements, (ii) Series B Preferred sold
pursuant to the Series B Agreements, (iii) Series C Preferred (a) sold pursuant
to the Original Series C Agreements or the Series C Agreements or (b) issued
pursuant to the Original Series C Stock Dividend, (iv) Series D Preferred sold
pursuant to the Original Series D Agreements or the Series D Agreements, (v)
Series F Preferred, (vi) Series G Preferred, (vii) Extension Guaranty Warrants,
(viii) Series H Warrants, (ix) 1996 Extension Guaranty Warrants, (x) Extension
Series H Warrants, (xi) Debenture Warrants and (xii) Class B Common issued in
connection with the Mailscripts Asset Purchase Agreement or the ISP Asset
Purchase Agreement and any Voting Common issued or issuable as a dividend or
other distribution with respect to any such H Unit Common, I Unit Common, Voting
Common, Series A Preferred, Series B Preferred, Series C Preferred, Series D
Preferred, Series F Preferred, Series G Preferred, Extension Guaranty Warrants,
Series H Warrants, 1996 Extension Guaranty Warrants, Extension Series H Warrants
or Debenture Warrants.
"Debenture Warrant Holders" shall have the meaning given such term in the
Recitals hereto.
"Debenture Warrants" shall have the meaning given such term in the Recitals
hereto.
"Debentures" shall mean the Company's 8.0% Convertible Subordinated
Debentures due 2001.
"8.04% Warrants" shall have the meaning given such term in the Recitals
hereto.
"Extension Guaranty Warrant Purchase Agreement" shall have the meaning
given such term in the Recitals hereto.
"Extension Guaranty Warrants" shall have the meaning given such term in the
Recitals hereto.
"Extension Series H Warrant Holders" shall have the meaning given such term
in the Recitals hereto.
"Extension Series H Warrants" shall have the meaning given such term in the
Recitals hereto.
"Guaranty Warrants" shall have the meaning given such term in the Recitals
hereto.
"H Unit Common" shall have the meaning given such term in the Recitals
hereto.
"H Unit Holders" shall have the meaning given such term in the Recitals
hereto.
"Holders" means the Persons who shall, from time to time, own of record any
Security. The term "Holder" shall mean any one of the Holders.
"I Unit Common" shall have the meaning given such term in the Recitals
hereto.
"I Unit Common Holders" shall have the meaning given such term in the
Recitals hereto.
"Liberty" shall mean collectively Liberty Partners Holdings 6, L.L.C.,
State Board of Administration of Florida and Liberty Investment Partnership #6.
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"MSVP" shall mean collectively Morgan Stanley Venture Partners III, L.P.,
Morgan Stanley Venture Investors III, L.P., and The Morgan Stanley Venture
Partners Entrepreneur Fund, L.P.
"1993 Warrants" shall have the meaning given such term in the Recitals
hereto.
"1996 Extension Guaranty Warrant Holders" shall have the meaning given such
term in the Recitals hereto.
"1996 Extension Guaranty Warrants" shall have the meaning given such term
in the Recitals hereto.
"Note Extension Agreement" shall have the meaning given such term in the
Recitals hereto.
"Notes" means the 8.04% Subordinated Notes due November 30, 1993 issued by
the Company pursuant to the Warrant and Series E Agreements in an aggregate
original principal amount of $2,005,372.
"Original Series C Agreements" shall have the meaning given such term in
the Recitals hereto.
"Original Series C Preferred" shall mean the Company's Series C Convertible
Preferred Stock, $1.00 par value, sold pursuant to the Original Series C
Agreements (as such term is defined in the Series C Agreements).
"Original Series C Stock Dividend" means the Series C Preferred issued to
the Original Series C Investors pursuant to Section 5.16 of the Series C
Agreements.
"Original Series D Agreements" shall have the meaning given such term in
the Recitals hereto.
"Person" means an individual, a corporation, a partnership, a limited
liability company, a trust, an unincorporated organization or a governmental
organization or any agency or political subdivision thereof.
"Proforma Conversion Stock" shall consist, at any time, of the shares of
then outstanding Conversion Stock, the Voting Common which would be issued if
the then outstanding Series A Preferred, Series B Preferred, Series C Preferred,
Series D Preferred, Series F Preferred, Series G Preferred and Class B Common
were converted into Voting Common immediately prior to such time and the Voting
Common which would be issued if the then outstanding Extension Guaranty
Warrants, Series H Warrants, 1996 Extension Guaranty Warrants, Extension Series
H Warrants and Debenture Warrants were exercised immediately prior to such time;
provided, however, that Proforma Conversion Stock shall not be deemed to include
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any shares after such shares have been sold pursuant to (i) a registration
statement under the Securities Act, (ii) Rule 144 promulgated by the Securities
and Exchange Commission under the Securities Act, or (iii) any other exemption
from registration to a Person who is free to resell such shares without
registration or restriction under the Securities Act; and provided, further,
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that at any time subsequent to the completion of a Qualified Initial Public
Offering, Proforma Conversion Stock shall not include any shares which are
eligible to be sold without registration under the Securities Act in compliance
with Rule 144 promulgated by the Securities and Exchange Commission under the
Securities Act. No shares of Proforma Conversion Stock shall be deemed to exist
from and after such time as there are less than 400,000 shares of Proforma
Conversion Stock in existence
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(as such number may be adjusted for stock splits, stock combination, stock
dividends and recapitalizations affecting the Common).
"Prospectus" shall mean any prospectus which is a part of a Registration
Statement, together with all amendments or supplements thereto.
"Qualified Initial Public Offering" shall mean a firm commitment
underwritten public offering of Common registered under the Securities Act (i)
with the per share price to the public equal to at least $0.80 (as adjusted for
stock splits, stock combinations, stock dividends and recapitalizations
affecting the Common), and (ii) in which the Company receives proceeds net of
all costs, expenses and underwriting discounts and commissions of not less than
$20,000,000 (including proceeds received by the Company upon exercise of any
over-allotment option by the underwriters) in each case as determined by the
amounts set forth on the cover page of the prospectus for such offering.
"Registration Statement" shall mean any registration statement filed with
the Securities and Exchange Commission in accordance with the Securities Act,
together with all amendments or supplements thereto.
"Securities" shall mean any debt or equity securities of the Company,
whether now or hereafter authorized, and any instrument convertible into or
exchangeable for Securities or a Security. The term "Security" shall mean any
one of the Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended prior to
or after the date of this Agreement, or any federal statute or statutes which
shall be enacted to take the place of such Act, together with all rules and
regulations promulgated thereunder.
"Securities and Exchange Commission" shall mean the United States
Securities and Exchange Commission or any successor to the functions of such
agency.
"Securities Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended prior to or after the date of this Agreement, or any federal statute
or statutes which shall be enacted to take the place of such Act, together with
all rules and regulations promulgated thereunder.
"Seller" shall mean each Holder of Securities of the Company as to which
Securities the Company would be required to file a Registration Statement or
which would be registered under the Securities Act at the request of such Holder
pursuant to any of the provisions of this Agreement.
"Series A Agreements" shall have the meaning given such term in the
Recitals hereto.
"Series A Preferred" shall mean the Company's Series A Convertible
Preferred Stock, $1.00 par value, sold pursuant to the Series A Agreements, and
any Stock into which such Stock may hereafter be changed, other than by exercise
of the conversion right of such Stock.
"Series B Agreements" shall have the meaning given such term in the
Recitals hereto.
"Series B Preferred" shall mean the Company's Series B Convertible
Preferred Stock, $1.00 par value, sold pursuant to the Series B Agreements, and
any Stock into which such Stock may hereafter be changed, other than by the
exercise of the conversion right of such Stock.
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"Series C Agreements" shall have the meaning given such term in the
Recitals hereto.
"Series C Preferred" shall mean the Company's Series C Senior Convertible
Preferred Stock, $1.00 par value, sold pursuant to the Original Series C
Agreements and the Series C Agreements, or issued pursuant to the Original
Series C Stock Dividend, and any Stock into which such Stock may hereafter be
changed, other than by the exercise of the conversion right of such Stock.
"Series D Agreements" shall have the meaning given such term in the
Recitals hereto.
"Series D Preferred" shall mean the Company's Series D Senior Convertible
Preferred Stock, $1.00 par value, sold pursuant to the Original Series D
Agreements and the Series D Agreements, and any Stock into which such Stock may
hereafter be changed, other than by exercise of the conversion right of such
Stock, except for shares of Series D Senior Convertible Preferred, $1.00 par
value, sold to Doctors' Pharmacy, Inc. pursuant to that certain Asset Purchase
Agreement between the Company, Doctors' Pharmacy, Inc. and Direct
Pharmaceuticals Corporation.
"Series E Preferred" shall mean the Company's Series E Super Senior
Convertible Preferred Stock, $1.00 par value, sold pursuant to the Warrant and
Series E Agreements, and any Stock into which such Stock may hereafter be
changed, other than by the conversion right of such Stock.
"Series F Preferred" shall mean the Company's Series F Senior Convertible
Preferred Stock, $1.00 par value, and any Stock into which such Stock may
hereafter be changed, other than by the exercise of the conversion right of such
Stock.
"Series G Preferred" shall mean the Company's Series G Super Senior
Convertible Preferred Stock, $1.00 par value, and any Stock into which such
Stock may hereafter be changed, other than by the exercise of the conversion
right of such Stock.
"Series H Preferred" shall mean the Company's Series H Superior Senior
Redeemable Preferred Stock, $1.00 par value, and any Stock into which such Stock
may hereafter be changed.
"Series H Warrants" shall have the meaning given such term in the Recitals
hereto.
"Series I Preferred" shall mean the Company's Series I Super Superior
Senior Redeemable Preferred Stock, $1.00 par value, and any Stock into which
such Stock may hereafter be changed.
"Stock" shall include any and all shares, interests or other equivalents
(however designated) of, or participation in, corporate stock.
"Voting Common" shall mean the Company's Voting Common Stock, $.01 par
value per share, described in Article 4 of the Company's Articles of
Incorporation, and any Stock into which such Stock may hereafter be changed.
"Warrant and Series E Agreements" shall have the meaning given such term in
the Recitals hereto.
"Warrant Purchase Agreement" shall have the meaning given such term in the
recitals hereto.
"Warrants" shall have the meaning given such term in the Recitals hereto.
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2. Required Registrations.
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A. Commencing on the date falling 180 days after the effective date of a
Qualified Initial Public Offering, upon the written request to register any
number of shares of Conversion Stock under the Securities Act made by Liberty,
the Company will use its best efforts to effect the registration of Conversion
Stock under the Securities Act and the registration or qualification thereof
under all applicable state securities or blue sky laws, but only to the extent
provided for in the following provisions of this Agreement. A request pursuant
to this Section 2.A. shall state the intended method of disposition of the
Conversion Stock sought to be registered. Whenever the Company shall, pursuant
to this Section 2.A., be requested by Liberty to effect the registration of any
Conversion Stock under the Securities Act, the Company shall promptly give
written notice of such proposed registration to MSVP, stating that MSVP has the
right to request that any or all of the Conversion Stock owned by it be included
in such registration. The Company shall include in such registration all
Conversion Stock with respect to which the Company receives written requests
pursuant to the preceding sentence from MSVP for inclusion therein; and
thereupon the Company will, subject to the limitations contained in Section 8,
as expeditiously as possible, use its best efforts to effect the registration,
under the Securities Act, of such Conversion Stock which the Company has been
requested to register for disposition by MSVP in accordance with the intended
method of disposition described in the request of Liberty, all to the extent
requisite to permit such sale or other disposition by MSVP of the Conversion
Stock so registered.
B. Liberty shall be entitled to require the Company to register Conversion
Stock pursuant to the provisions of Section 2.A. hereof three times, but no more
than once in any continuous six-month period. The foregoing registration rights
of Liberty shall not be deemed satisfied by the Company until a Registration
Statement shall have been filed by the Company with and made effective by the
Securities and Exchange Commission under the Securities Act pursuant to a
request made pursuant to Section 2.A. Liberty shall have the right to select
the investment banker or bankers who shall serve as the manager and/or co-
managers for the offering of Securities covered by such Registration Statement,
subject to the consent of the Company, which consent shall not be unreasonably
withheld.
C. Commencing on the date falling 180 days after the effective date of a
Qualified Initial Public Offering, upon the written request to register any
number of shares of Conversion Stock under the Securities Act made by MSVP, the
Company will use its best efforts to effect the registration of Conversion Stock
under the Securities Act and the registration or qualification thereof under all
applicable state securities or blue sky laws, but only to the extent provided
for in the following provisions of this Agreement. A request pursuant to this
Section 2.C. shall state the intended method of disposition of the Conversion
Stock sought to be registered. Whenever the Company shall, pursuant to this
Section 2.C., be requested by MSVP to effect the registration of any Conversion
Stock under the Securities Act, the Company shall promptly give written notice
of such proposed registration to Liberty, stating that Liberty has the right to
request that any or all of the Conversion Stock owned by it be included in such
registration. The Company shall include in such registration all Conversion
Stock with respect to which the Company receives written requests pursuant to
the preceding sentence from Liberty for inclusion therein; and thereupon the
Company will, subject to the limitations contained in Section 8, as
expeditiously as possible, use its best efforts to effect the registration,
under the Securities Act, of such Conversion Stock which the Company has been
requested to register for disposition by Liberty in accordance with the intended
method of disposition described in the request of MSVP, all to the extent
requisite to permit such sale or other disposition by Liberty of the Conversion
Stock so registered.
-10-
D. MSVP shall be entitled to require the Company to register Conversion
Stock pursuant to the provisions of Section 2.C. hereof three times, but no more
than once in any continuous six-month period. The foregoing registration rights
of MSVP shall not be deemed satisfied by the Company until a Registration
Statement shall have been filed by the Company with and made effective by the
Securities and Exchange Commission under the Securities Act pursuant to a
request made pursuant to Section 2.C. MSVP shall have the right to select the
investment banker or bankers who shall serve as the manager and/or co-managers
for the offering of Securities covered by such Registration Statement, subject
to the consent of the Company, which consent shall not be unreasonably withheld.
E. The Company shall be entitled to postpone for a reasonable time, not
exceeding 120 days, the filing of a Registration Statement pursuant to a request
made pursuant to Section 2.A. or 2.C. or its efforts to cause such Registration
Statement to become effective if at the time the right to delay is exercised the
Company shall determine in good faith that such offering would interfere with
any acquisition, financing or other transaction that the Company is actively
pursuing and is material to the Company or would involve initial or continuing
disclosure obligations that would not be in the best interests of the Company.
The Company may not exercise the right to delay more than once in any continuous
twelve-month period.
3. Incidental Registration. If the Company at any time proposes or is
-----------------------
required to register any of its shares of Common under the Securities Act or any
applicable state securities or blue sky laws on a form which permits inclusion
of the Conversion Stock, other than the registration under the Securities Act by
the Company of a Qualified Initial Public Offering, it will each such time give
written notice to Liberty and MSVP of its intention so to do. Upon the written
request of Liberty and/or MSVP given within 20 days after receipt of any such
notice, the Company will, subject to the limits contained in Section 8, use its
best efforts to cause all Conversion Stock which such Holders shall have
requested be registered, to be registered under the Securities Act and any
applicable state securities or blue sky laws, all to the extent requisite to
permit the sale or other disposition by such Holders of the Conversion Stock so
registered. No registrations of Conversion Stock under this Section 3 shall
relieve the Company of its obligation to effect registrations under Section 2
hereof, or shall constitute a registration request by Liberty or MSVP
thereunder. The Company shall have the right to select the investment banker or
bankers who shall serve as the manager and/or co-managers for all registrations
of offerings of Securities under this Section 3.
4. Registration Procedures. Whenever the Company is required by the
-----------------------
provisions of this Agreement to use its best efforts to effect the registration
of any Conversion Stock under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
Registration Statement with respect to such Securities and use its
best efforts to cause such Registration Statement to become and remain
effective (provided that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, the Company will
furnish to counsel selected by the Holders of at least 51% of the
Conversion Stock included in such Registration Statement copies of all
such documents proposed to be filed, which documents will be subject
to the review of such counsel);
(b) prepare and file with the Securities and Exchange 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 a period of not less than
one year and to comply with the provisions of the Securities Act with
-11-
respect to the sale or other disposition of all Securities covered by
such Registration Statement during such period in accordance with the
intended method or methods of disposition by the Sellers thereof set
forth in such Registration Statement;
(c) furnish to each Seller such number of copies of such Registration
Statement, each amendment and supplement thereto, the Prospectus
included in the Registration Statement (including each preliminary
Prospectus), and such other documents, as such Seller may reasonably
request in order to facilitate the public sale or other disposition of
the Securities owned by such Seller;
(d) use every reasonable effort to register or qualify all the Securities
covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions as each Seller shall reasonably
request, and do any and all other acts and things which may be
necessary under such securities or blue sky laws to enable such Seller
to consummate the public sale or other disposition in such
jurisdiction of the Securities owned by such Seller covered by such
Registration Statement; provided, however, that the Company shall not
-------- -------
be required to (i) qualify to do business as a foreign corporation in
any jurisdiction wherein it would not otherwise be required to qualify
but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any
such jurisdiction;
(e) notify each Seller at any time when a Prospectus relating to the
Securities of such Seller covered by such Registration Statement is
required to be delivered under the Securities Act, of 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 any fact necessary to make the statements therein not
misleading, and at the request of any such Seller, prepare a
supplement or amendment to such Prospectus so that, as thereafter
delivered to the purchasers of the Securities covered by such
Registration Statement, such Prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
(f) cause all such Securities covered by such Registration Statement to be
listed on each securities exchange on which Securities of the same
class are then listed;
(g) provide a transfer agent and registrar for Voting Common not later
than the effective date of such Registration Statement;
(h) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as the
holders of at least 51% of the Conversion Stock included in such
Registration Statement or underwriters, if any, reasonably request in
order to expedite or facilitate the disposition of such Securities
(including, without limitation, effecting a stock split or a
combination of shares);
(i) make available for inspection by any Seller, any underwriter
participating in any distribution pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by any
such Seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any
-12-
such Seller, underwriter, attorney, accountant or agent in connection
with such Registration Statement; and
(j) obtain a "cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of at least
51% of the Conversion Stock included in such Registration Statement
reasonably request.
5. Expenses. All expenses incurred in effecting the first requested
--------
registrations provided for in each of Sections 2.A and 2.B. hereof and Sections
2.C. and 2.D. hereof and in effecting all of the registrations provided for in
Section 3 hereof, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel for the Company, fees
and disbursements of counsel for the Sellers (who shall be one firm of attorneys
selected by Sellers holding at least 51% of the Conversion Stock being offered),
underwriting expenses other than commissions, expenses of any audits incident to
or required by any such registration and expenses of complying with the
securities or blue sky laws of any jurisdictions pursuant to Subsection (D) of
Section 4 hereof, shall be borne and paid by the Company. All expenses incurred
in effecting the second and third requested registrations under each of Sections
2.A. and 2.B. hereof and Sections 2.C. and 2.D. hereof, shall be borne and paid
by the Holders of Securities who include Securities therein (and the Company, if
it includes Securities therein), such expenses to be shared among and paid by
such Persons in the ratio that the initial public offering price of the
Securities included by each such Person (as set forth in the Prospectus) bears
to the aggregate initial public offering price of all Securities included
therein.
6. Indemnification.
---------------
A. In the event of any registration of any of its Securities under the
Securities Act pursuant to this Agreement, the Company, to the extent permitted
by law, shall indemnify and hold harmless the Seller of such Securities, each
underwriter (as defined in the Securities Act), each other Person who
participates in the offering of such Securities, and each other Person, if any,
who controls (within the meaning of the Securities Act) such Seller, underwriter
or participating Person, against any losses, claims, damages or liabilities,
joint or several, to which such Seller, underwriter, participating Person or
controlling Person may become subject under the Securities Act or any other
statute or at common law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (1) any alleged
untrue statement of any material fact contained, on the effective date thereof,
in any Registration Statement under which such Securities were registered under
the Securities Act, any preliminary Prospectus or final Prospectus contained
therein, or any summary Prospectus issued in connection with any Securities
being registered, or any amendment or supplement thereto, or (2) any alleged
omission to state in any such document a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse each such Seller, or any such underwriter, participating Person or
controlling Person for any legal or other expenses reasonably incurred by such
Seller, underwriter, participating Person or controlling Person in connection
with investigating or defending any such loss, damage, liability or action;
provided, however, that the Company shall not be liable to any Seller, or any
- -------- -------
such underwriter, participating Person, or controlling Person in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon any alleged untrue statement or alleged omission made in such
Registration Statement, preliminary Prospectus, summary Prospectus, final
Prospectus, or amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by such Seller,
specifically for use therein.
-13-
B. Each of Liberty and MSVP, severally and not jointly, indemnifies and
holds harmless each other, the Company, its directors and officers, each
underwriter (as defined in the Securities Act), and each other Person, if any,
who controls (within the meaning of the Securities Act) the Company, any
underwriter or such other Holder, against any losses, claims, damages, or
liabilities, joint or several, to which any such other Holder, the Company, any
such director or officer, any such underwriter, or any such Person may become
subject under the Securities Act or any other statute or at common law, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (1) any alleged untrue statement of any material
fact contained, on the effective date thereof, in any Registration Statement
under which Securities owned by such Holder are registered under the Securities
Act, any preliminary Prospectus or final Prospectus contained therein, or any
summary Prospectus issued in connection with any such Securities being
registered, or any amendment or supplement thereto, or (2) any alleged omission
to state in any such document a material fact required to be stated therein or
necessary to make the statements therein not misleading, in either case to the
extent, but only to the extent, that such alleged untrue statement or alleged
omission was made in such Registration Statement, preliminary Prospectus,
summary Prospectus, final Prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Holder specifically for use therein, and then only to the extent that such
alleged untrue statements or alleged omissions by such Holder were not based on
the authority of an expert as to which such Holder had no reasonable ground to
believe, and did not believe, that the statements made based on the authority of
such expert were untrue or that there was an omission to state a material fact.
Notwithstanding the foregoing provisions of this Subsection B, neither Liberty
nor MSVP shall be required to pay under such provisions an amount in excess of
the proceeds received by such Holder in payment for the Securities sold by such
Holder pursuant to the Registration Statement.
C. Indemnification similar to that specified in Subsections (A) and (B)
of this Section 6 shall be given by the Company and each of Liberty and MSVP
(with such modifications as shall be appropriate) covered by any registration or
other qualification of Securities under any federal or state securities law or
regulation other than the Securities Act with respect to any such registration
or other qualification effected pursuant to this Agreement.
D. Any Person which proposes to assert the right to be indemnified under
Subsections (A), (B), or (C) of this Section 6 shall, promptly after receipt of
notice of commencement of any action, suit or proceeding against such Person in
respect of which a claim is to be made against an indemnifying Person under such
Subsections (A), (B) or (C), notify each such indemnifying Person of the
commencement of such action, suit or proceeding, enclosing a copy of all papers
served. The indemnifying Person shall be entitled to participate in and, to the
extent such indemnifying Person may wish, to assume the defense of such action
at its own expense, with counsel chosen by it and reasonably satisfactory to the
Person claiming indemnification, and after notice from the indemnifying Person
of its election to assume the defense thereof the indemnifying Person will be
liable to the Person claiming indemnification only for legal fees and expenses
incurred by the Person claiming indemnification prior to the date upon which
such Person received notice that the indemnifying Person had chosen to assume
the defense of such action (including any costs incurred subsequent to that date
relating solely to organization or clean-up of work performed prior to such
date). The Person claiming indemnification shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall not be at the expense of the
Person against whom indemnification is sought; provided, however, that
-------- -------
notwithstanding the foregoing, in any case when indemnification is sought
against the Company and (i) the Person seeking indemnification has been advised
by counsel that its defenses may be different from those of the Company, or (ii)
the Company has not proceeded in a timely manner to effect such defense, then
the fees and expenses of counsel for
-14-
such Person shall be paid by the Company. In no event shall a Person against
whom indemnification is sought be obligated to indemnify any Person for any
settlement of any claim or action effected without the indemnifying Person's
consent.
E. The indemnification provided for under this Section 6 will remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of Securities.
F. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 6 is for
any reason held to be unavailable to an indemnified party under Subsection A. B.
or C. above in respect to any losses, claims, damages or liabilities referred to
therein, then each applicable 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 losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the parties
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities. The relative fault of a party 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 such party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages and liabilities referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
Notwithstanding the provisions of this Section 6, neither Liberty nor MSVP shall
be required to contribute any amount in connection with any Registration
Statement in excess of the proceeds received by such Holder pursuant to such
Registration Statement.
7. Participation in Underwritten Registrations. No Person may
-------------------------------------------
participate in any underwritten registration hereunder unless such Person (i)
agrees to sell such Person's Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
8. Marketing Restrictions.
----------------------
A. If
(1) Liberty is entitled and wishes to register any Conversion Stock
in a registration made pursuant to Sections 2.A. and 2.B. hereof, and
(2) the offering proposed to be made by Liberty is to be an
underwritten public offering, and
(3) the Company, MSVP or one or more other Holders of Securities
wishes to register Securities in such registration, and
(4) the managing underwriters of such public offering furnish a
written opinion that the total amount of Securities to be included in such
offering would exceed the maximum amount of Securities (as specified in
such opinion) which can be successfully marketed,
-15-
then the relative rights to participate in such offering of Liberty, MSVP, the
Holders, if any, of Securities having the right to include such Securities in
such registration, and the Company shall be in the following order of priority:
First: Liberty shall be entitled to participate; and then
Second: MSVP shall be entitled to participate; and then
Third: The Company shall be entitled to participate; and then
Fourth: All Holders, if any, of other Securities having the right to
include such Securities in such registration shall be entitled to
participate in accordance with the relative priorities, if any, as shall
exist among them.
No Securities (issued or unissued) other than those registered and included in
the underwritten offering shall be offered for sale or other disposition by the
Company, Liberty or MSVP in a transaction which would require registration under
the Securities Act (except for sales pursuant to a registration statement on
Form S-8) until the expiration of 90 days after the effective date of the
Registration Statement filed pursuant to Sections 2.A. and 2.B. hereof, or such
earlier time consented to by the managing underwriters.
B. If
(1) MSVP is entitled and wishes to register any Conversion Stock in a
registration made pursuant to Sections 2.C. and 2.D. hereof, and
(2) the offering proposed to be made by MSVP is to be an underwritten
public offering, and
(3) the Company, Liberty or one or more other Holders of Securities
wishes to register Securities in such registration, and
(4) the managing underwriters of such public offering furnish a
written opinion that the total amount of Securities to be included in such
offering would exceed the maximum amount of Securities (as specified in
such opinion) which can be successfully marketed,
then the relative rights to participate in such offering of MSVP, Liberty, the
other Holders, if any, of Securities having the right to include such Securities
in such registration, and the Company shall be in the following order of
priority:
First: MSVP shall be entitled to participate; and then
Second: Liberty shall be entitled to participate; and then
Third: The Company shall be entitled to participate; and then
Fourth: All Holders, if any, of other Securities having the right to
include such Securities in such registration shall be entitled to
participate in accordance with the relative priorities, if any, as shall
exist among them.
-16-
No Securities (issued or unissued) other than those registered and included in
the underwritten offering shall be offered for sale or other disposition by the
Company, Liberty or MSVP in a transaction which would require registration under
the Securities Act (except for sales pursuant to a registration statement on
Form S-8) until the expiration of 90 days after the effective date of the
Registration Statement filed pursuant to Sections 2.C. and 2.D. hereof, or such
earlier time consented to by the managing underwriters.
C. If
(1) Liberty or MSVP requests registration of Conversion Stock under
Section 3 hereof, and
(2) the offering proposed to be made is to be an underwritten public
offering, and
(3) the managing underwriters of such public offering furnish a
written opinion that the total amount of Securities to be included in such
offering would exceed the maximum amount of Securities (as specified in
such opinion) which can be successfully marketed,
then the relative rights to participate in such offering of Liberty, MSVP, the
other Holders, if any, of Securities having the right to include such Securities
in such registration, and the Company shall be in the following order of
priority:
First: The Person or Persons (including the Company in the case of an
offering initiated by the Company) requesting such registration shall be
entitled to participate in accordance with the relative priorities, if any,
as shall exist among them; and then
Second: Liberty, MSVP and all other Holders, if any, of Securities
having the right to include such Securities in such registration shall be
entitled to participate pro rata among themselves in accordance with the
number of shares of Voting Common which each such Holder shall have
requested be registered (for the purposes of this clause, Securities
convertible into or exchangeable or exercisable for Voting Common to be
treated as if they were so converted or exchanged or exercised immediately
prior to the filing of the Registration Statement covering such
registration); and then
Third: If such registration shall have been requested by a Person or
Persons other than the Company, the Company shall be entitled to include
Securities in such registration.
No Securities (issued or unissued) other than those registered and included in
the underwritten offering shall be offered for sale or other disposition by the
Company, Liberty or MSVP in a transaction which would require registration under
the Securities Act (except for sales pursuant to a registration statement on
Form S-8) until the expiration of 90 days after the effective date of the
Registration Statement in which Conversion Stock was included pursuant to
Section 3 hereof, or such earlier time consented to by the managing
underwriters.
9. Sale of Extension Guaranty Warrants, Series H Warrants, 1996 Extension
----------------------------------------------------------------------
Guaranty Warrants, Extension Series H Warrants and/or Debenture Warrants to
- ---------------------------------------------------------------------------
Underwriter. Notwithstanding anything in this Agreement to the contrary, in
- -----------
lieu of exercising any Extension Guaranty Warrants, Series H Warrants, 1996
Extension Guaranty Warrants, Extension Series H Warrants or Debenture
-17-
Warrants prior to or simultaneously with the filing or the effectiveness of any
Registration Statement filed pursuant to this Agreement, the Holder of such
Extension Guaranty Warrants, Series H Warrants, 1996 Extension Guaranty
Warrants, Extension Series H Warrants and/or Debenture Warrants may sell such
Extension Guaranty Warrants, Series H Warrants, 1996 Extension Guaranty
Warrants, Extension Series H Warrants and/or Debenture Warrants to the
underwriter of the offering being registered if such underwriter consents
thereto and if such underwriter undertakes to exercise such Extension Guaranty
Warrants, Series H Warrants, 1996 Extension Guaranty Warrants, Extension Series
H Warrants or Debenture Warrants, before making any distribution pursuant to
such Registration Statement and to include the Conversion Stock among the
Securities being offered pursuant to such Registration Statement. The Company
agrees to cause the Conversion Stock to be issued within such time as will
permit the underwriter to make and complete the distribution contemplated by the
underwriting.
10. Assignability of Registration Rights. The registration rights set
------------------------------------
forth in this Agreement shall accrue to each subsequent Holder of Proforma
Conversion Stock who consents in writing to be bound by the terms and conditions
of this Agreement, provided, however, that the rights of Liberty set forth in
-------- -------
Subsections 2.A., 2.B. and 8.A. of this Agreement shall only accrue to a
subsequent Holder of all of Liberty's Proforma Conversion Stock who consents in
writing to be bound by the terms and conditions of this Agreement, and the
rights of MSVP set forth in Subsections 2.C., 2.D. and 8.B. of this Agreement
shall only accrue to a subsequent Holder of all of MSVP's Proforma Conversion
Stock who consents in writing to be bound by the terms and conditions of this
Agreement
11. Grant of Subsequent Registration Rights. The Company may not grant
---------------------------------------
registration rights to subsequent investors in the Company unless such rights
are subordinate to the rights of Liberty and MSVP or the grant of such rights is
consented to by Liberty and MSVP.
12. Severability. Whenever possible, each provision of this Agreement
------------
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
13. Rule 144. At the written request of Liberty or MSVP in connection
--------
with a proposal to sell Conversion Stock in compliance with Rule 144 promulgated
by the Securities and Exchange Commission under the Securities Act, the Company
shall furnish to such Holder, within ten days after receipt of such request, a
written statement as to whether or not the Company is in compliance with the
filing requirements of the Securities and Exchange Commission as set forth in
such Rule.
14. Descriptive Headings. The descriptive headings of this Agreement are
--------------------
inserted for convenience only and do not constitute a part of this Agreement.
15. Notices. All communications provided for hereunder shall be in
-------
writing and delivered by hand or by first-class or certified mail, postage
prepaid, to the following addresses, or such other addresses as shall be given
by notice delivered hereunder, and shall be deemed to have been received on the
day of personal delivery or within three business days after such mailing:
If to Liberty or MSVP, addressed to such Holder at its address as shown on
the books of the Company or its transfer agent;
-18-
If to the Company, to:
Allscripts, Inc.
2401 Commerce Drive
Libertyville, Illinois 60048
Attention: President
With a copy to:
Joseph H. Greenberg
Gardner, Carton & Douglas
321 North Clark Street
Suite 2900
Chicago, Illinois 60610
or, as to such Holders or the Company, to such other persons or at such other
addresses as shall be furnished by any such party by like notice to the other
parties.
16. Termination. All rights under this Agreement shall terminate as to
-----------
any Holder at such time as such Holder is free to sell all shares of Proforma
Conversion Stock held by such Holder pursuant to paragraph (k) of Rule 144 under
the Securities Act or a comparable exemption from registration that enables the
Holder to sell all shares of Proforma Conversion Stock held by such Holder
without registration and without restriction as to the manner of sale or
otherwise.
17. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same document.
18. Entire Agreement. This Agreement constitutes the entire agreement by
----------------
and among the parties hereto with respect to the subject matter hereof, and
supersedes and replaces in its entirety the Eleventh Restated Registration
Agreement, provided, however, that in the event the Company has not consummated
-------- -------
a Qualified Initial Public Offering registered pursuant to Registration
Statement No. 333-78431 (and/or any additional Registration Statement related
thereto and filed pursuant to Rule 462(b) under the Securities Act) on or before
December 31, 1999, this Agreement shall terminate and be of no further force or
effect and the Eleventh Restated Registration Agreement shall thereafter
continue in full force and effect.
19. Amendments and Governing Law. This Agreement may be amended, modified
----------------------------
or supplemented or any provision hereof waived only by a written instrument
executed by Liberty and MSVP. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois applicable to contracts
made and to be performed in that state.
[Signatures on next page]
-19-
Registration Agreement
- ----------------------
THE HOLDERS:
-----------
LIBERTY PARTNERS HOLDINGS 6, L.L.C.
By: /s/ Michael Kluger
-------------------------------------------
MORGAN STANLEY VENTURE PARTNERS III, L.P.
By: Morgan Stanley Venture Partners III, L.L.C.,
its General Partner
By: Morgan Stanley Venture Capital III, Inc.,
its Institutional Managing Member
By: /s/ Gary M. Stein, Vice President
-------------------------------------------
MORGAN STANLEY VENTURE INVESTORS III, L.P.
By: Morgan Stanley Venture Partners III, L.L.C.,
its General Partner
By: Morgan Stanley Venture Capital III, Inc.,
its Institutional Managing Member
By: /s/ Gary M. Stein, Vice President
-------------------------------------------
-20-
Registration Agreement
- ----------------------
THE MORGAN STANLEY VENTURE PARTNERS
ENTREPRENEUR FUND, L.P.
By: Morgan Stanley Venture Partners III, L.L.C.,
its General Partner
By: Morgan Stanley Venture Capital III, Inc.,
its Institutional Managing Member
By: /s/ Gary M. Stein, Vice President
-------------------------------------
ESSEX VENTURE PARTNERS, L.P. FUND I
By: /s/ James Currie
-------------------------------------
Its: General Partner
PROVIDENCE PARTNERSHIP II
By: /s/ , Attorney in fact
--------------------------------------
a General Partner
/s/ Ralph A. Bard, III
----------------------------------------
Ralph A. Bard, III
________________________________________
Mary B. Bourquin
________________________________________
Katharine B. Dickson
/s/ Gordon R. Lang
----------------------------------------
Gordon R. Lang, individually and the
Gordon R. Lang IRA Rollover
Delaware Charter Guarantee and
Trust Company, Trustee
-21-
Registration Agreement
- ----------------------
1987 MERCHANT INVESTMENT PARTNERSHIP
By: Merchant Capital, Inc., its general partner
By: /s/ Linda H. Hanauer
---------------------------------------------
Its: Chief Financial & Administrative Officer
BESSEMER VENTURE PARTNERS II L.P.,
a Delaware limited partnership
By: Deer II Co., a Delaware
general partnership
By: /s/ Robert H. Buescher
--------------------------------------
a General Partner
________________________________________________*
William T. Burgin
________________________________________________*
Brimstone Island Co. L.P.
________________________________________________*
Neill H. Brownstein
/s/ Robert H. Buescher
------------------------------------------------
Robert H. Buescher
/s/ James H. Furneaux
------------------------------------------------
James H. Furneaux
________________________________________________*
Christopher Gabrieli
________________________________________________*
Paul Bancroft III
-22-
Registration Agreement
- ----------------------
CARDWELL CHILDREN'S TRUST
Dated June 1, 1987
By:_____________________________________________*
Its Trustee
________________________________________________*
R. Daniel Saxe, Jr.
________________________________________________*
Thomas F. Ruhm
________________________________________________*
John I. Wechsler
________________________________________________*
Ward W. Woods
*By: Robert H. Buescher,
Attorney-in-Fact /s/ Robert H. Buescher
----------------------
/s/ N. Goldfarb
------------------------------------------------
Norman M. Goldfarb
THE WOODLANDS VENTURE FUND, L.P.
By: The Woodlands Venture Partners, L.P.
By:_____________________________________________
A General Partner
________________________________________________
John N. Kapoor
-23-
Registration Agreement
- ----------------------
ARROW PARTNERS C.V.
By:________________________________________
A General Partner
MAILSCRIPTS, INC.
By:________________________________________
Its:_______________________________________
ISP PHARMACEUTICALS, INC.
By:________________________________________
Its:_______________________________________
STATE BOARD OF ADMINISTRATION OF
FLORIDA
By: /s/ Michael Kluger
----------------------------------------
CHASE MANHATTAN TTEE FOR IBM CORP.
RETIREMENT PLAN TRUST DTD 12/18/45
By: /s/
----------------------------------------
Sr. Executive Vice President
Palisade Capital Management LLC
BANKERS TRUST TRUSTEE FOR CHRYSLER CORP.
EMPLOYEE #1 PENSION PLAN DTD 4/1/89
By: /s/
----------------------------------------
Sr. Executive Vice President
Palisade Capital Management LLC
-24-
Registration Agreement
- ----------------------
EDWARD STEWART REVOCABLE TRUST
By:___________________________________
COMDISCO FOUNDATION
By: /s/
-----------------------------------
AWAD & ASSOCIATES L.P.
By:___________________________________
______________________________________
Nanette E. Scofield
/s/ Richard B. Felder
--------------------------------------
Richard B. Felder
______________________________________
Michael D. Mintz Trust U/A 8/12/92
LIBERTY INVESTMENT PARTNERSHIP #6
By: /s/ Michael Kluger
-----------------------------------
/s/ Marvin Sharfstein
--------------------------------------
Marvin Sharfstein
/s/ Warren Wood
--------------------------------------
Warren Wood
-25-
Registration Agreement
- ----------------------
HAP INVESTMENT PARTNERSHIP
By: /s/ Harold D. Price
------------------------------------------------
/s/ Janice Robinson
---------------------------------------------------
Janice Robinson
/s/ Rober M. Zinn /s/ Carole S. Zinn
---------------------------------------------------
Robert M. Zinn and Carole S. Zinn, Trustees for the
Zinn Family Trust Dated 9/5/97
/s/ Andrew L. Turner
---------------------------------------------------
Andrew L. Turner
___________________________________________________
Jacqueline Sacher
/s/ Stanton Scherer
---------------------------------------------------
Bear Stearns Custodian for IRA for Stanton Scherer
/s/ Glen E. Tullman
---------------------------------------------------
Glen E. Tullman
/s/ David B. Mullen
---------------------------------------------------
David B. Mullen
___________________________________________________
Robert W. Rook, Jr.
/s/ Michael E. Cahr
---------------------------------------------------
Michael E. Cahr
/s/ James Rosenblum
---------------------------------------------------
James Rosenblum
-26-
Registration Agreement
- ----------------------
/s/ Bernard Goldstein
--------------------------------------
Bernard Goldstein
______________________________________
Robert Compton
/s/ Lee Shapiro
--------------------------------------
Lee Shapiro
/s/ Warren Tullman
--------------------------------------
Warren Tullman
/s/ Jeffrey A. Surges
--------------------------------------
Jeffrey Surges
/s/ Joseph Carey
--------------------------------------
Joseph Carey
/s/ Stanley Crane
--------------------------------------
Stanley Crane
______________________________________
J. Laurence Costin
/s/ John Peterman
--------------------------------------
John Peterman
/s/ Scott Leisher
--------------------------------------
Scott Leisher
______________________________________
Arnie Millstein
-27-
Registration Agreement
- ----------------------
THE COMPANY:
-----------
ALLSCRIPTS, INC.
By: /s/ John Cull
---------------------------
Its: Treasurer
-28-
SCHEDULE I
----------
TO
--
TWELFTH RESTATED REGISTRATION AGREEMENT
---------------------------------------
I. Holders of Series A Preferred and Series B Preferred
----------------------------------------------------
1. Liberty Partners Holdings 6, L.L.C.
2. Morgan Stanley Venture Partners III, L.P.
3. Morgan Stanley Venture Investors III, L.P.
4. The Morgan Stanley Venture Partners Entrepreneur Fund, L.P.
5. State Board of Administration of Florida
6. Liberty Investment Partnership #6
7. Essex Venture Partners, L.P. Fund I
8. Providence Partnership II
9. Ralph A. Bard, III
10. Mary B. Bourquin
11. Katharine B. Dickson
12. Gordon R. Lang
II. Holders of Series C Preferred
-----------------------------
1. Liberty Partners Holdings 6, L.L.C.
2. Morgan Stanley Venture Partners III, L.P.
3. Morgan Stanley Venture Investors III, L.P.
4. The Morgan Stanley Venture Partners Entrepreneur Fund, L.P.
5. State Board of Administration of Florida
6. Liberty Investment Partnership #6
7. Providence Partnership II
8. 1987 Merchant Investment Partnership
9. The Woodlands Venture Fund, L.P.
10. Bessemer Venture Partners II L.P., a Delaware limited partnership
11. William T. Burgin
12. Brimstone Island Co. L.P.
13. Neill H. Brownstein
14. Robert H. Buescher
15. Christopher Gabrieli
16. James H. Furneaux
17. Norman M. Goldfarb
18. Paul Bancroft III
19. Cardwell Children's Trust dated June 1, 1987
20. R. Daniel Saxe, Jr.
21. Thomas F. Ruhm
22. John I. Wechsler
23. John N. Kapoor
24. Arrow Partners C.V.
III. Holders of Series D Preferred
-----------------------------
1. Liberty Partners Holdings 6, L.L.C.
2. Morgan Stanley Venture Partners III, L.P.
3. Morgan Stanley Venture Investors III, L.P.
4. The Morgan Stanley Venture Partners Entrepreneur Fund, L.P.
5. State Board of Administration of Florida
6. Liberty Investment Partnership #6
-2-
7. The Woodlands Venture Fund, L.P.
8. Bessemer Venture Partners II L.P., a Delaware limited partnership
9. William T. Burgin
10. Brimstone Island Co. L.P.
11. Neill H. Brownstein
12. Robert H. Buescher
13. Thomas F. Ruhm
14. John I. Wechsler
15. Ward W. Woods
16. Providence Partnership II
17. 1987 Merchant Investment Partnership
18. Arrow Partners C.V.
19. Christopher Gabrieli
20. Norman M. Goldfarb
21. Paul Bancroft III
22. R. Daniel Saxe
23. John N. Kapoor
24. The Gordon R. Lang IRA Rollover, Delaware Charter Guarantee & Trust
Company, Trustee
25. Ralph A. Bard, III
26. Mary B. Bourquin
27. Katharine B. Dickson
IV. Holders of Series F Preferred and Series G Preferred
----------------------------------------------------
1. Liberty Partners Holdings 6, L.L.C.
-3-
2. Morgan Stanley Venture Partners III, L.P.
3. Morgan Stanley Venture Investors III, L.P.
4. The Morgan Stanley Venture Partners Entrepreneur Fund, L.P.
5. State Board of Administration of Florida
6. Liberty Investment Partnership #6
7. Providence Partnership II
8. Gordon R. Lang
9. 1987 Merchant Investment Partnership
10. The Woodlands Venture Fund, L.P.
11. Bessemer Venture Partners II L.P., a Delaware limited partnership
12. William T. Burgin
13. Brimstone Island Co. L.P.
14. Neill H. Brownstein
15. Robert H. Buescher
16. Christopher Gabrieli
17. James H. Furneaux
18. Norman M. Goldfarb
19. Paul Bancroft III
20. R. Daniel Saxe, Jr.
21. Thomas F. Ruhm
22. John I. Wechsler
23. Arrow Partners C.V.
24. Ward W. Woods
-4-
SCHEDULE II
-----------
TO
--
TWELFTH RESTATED REGISTRATION AGREEMENT
---------------------------------------
Holders of Extension Guaranty Warrants
- --------------------------------------
1. Liberty Partners Holdings 6, L.L.C.
2. Morgan Stanley Venture Partners III, L.P.
3. Morgan Stanley Venture Investors III, L.P.
4. The Morgan Stanley Venture Partners Entrepreneur Fund, L.P.
5. State Board of Administration of Florida
6. Liberty Investment Partnership #6
Holders of 1996 Extension Guaranty Warrants
- -------------------------------------------
1. Liberty Partners Holdings 6, L.L.C.
2. Morgan Stanley Venture Partners III, L.P.
3. Morgan Stanley Venture Investors III, L.P.
4. The Morgan Stanley Venture Partners Entrepreneur Fund, L.P.
5. State Board of Administration of Florida
6. Liberty Investment Partnership #6
SCHEDULE III
------------
TO
--
TWELFTH RESTATED REGISTRATION AGREEMENT
---------------------------------------
Holders of Common (Converted from Class B Common)
- -------------------------------------------------
1. Mailscripts, Inc.
2. ISP Pharmaceuticals, Inc.
SCHEDULE IV
-----------
TO
--
TWELFTH RESTATED REGISTRATION AGREEMENT
---------------------------------------
Holders of Series H Warrants, Extension Series H Warrants and H Unit Common
- ---------------------------------------------------------------------------
1. Liberty Partners Holdings 6, L.L.C.
2. Morgan Stanley Venture Partners III, L.P.
3. Morgan Stanley Venture Investors III, L.P.
4. The Morgan Stanley Venture Partners Entrepreneur Fund, L.P.
5. State Board of Administration of Florida
6. Liberty Investment Partnership #6
7. Providence Partnership II
8. Ralph A. Bard, III
9. Mary B. Bourquin
10. Katharine B. Dickson
11. 1987 Merchant Investment Partnership
12. Bessemer Venture Partners II L.P., a Delaware limited partnership
13. William T. Burgin
14. Brimstone Island Co. L.P.
15. Neill H. Brownstein
16. Robert H. Buescher
17. Christopher Gabrieli
18. Norman M. Goldfarb
19. Paul Bancroft III
20. R. Daniel Saxe, Jr.
21. Thomas F. Ruhm
22. John I. Wechsler
23. Arrow Partners C.V.
24. Ward W. Woods
25. National Health Systems, Inc.
Holders of Extension Series H Warrants
- --------------------------------------
26. Liberty Partners Holdings 6, L.L.C.
27. Morgan Stanley Venture Partners III, L.P.
28. Morgan Stanley Venture Investors III, L.P.
29. The Morgan Stanley Venture Partners Entrepreneur Fund, L.P.
30. State Board of Administration of Florida
31. Liberty Investment Partnership #6
32. Providence Partnership II
33. Ralph A. Bard, III
34. Mary B. Bourquin
35. Katharine B. Dickson
36. 1987 Merchant Investment Partnership
37. Bessemer Venture Partners II L.P., a Delaware limited partnership
38. William T. Burgin
39. Brimstone Island Co. L.P.
40. Neill H. Brownstein
41. Robert H. Buescher
42. Christopher Gabrieli
43. Norman M. Goldfarb
44. Paul Bancroft III
-2-
45. R. Daniel Saxe, Jr.
46. Thomas F. Ruhm
47. John I. Wechsler
48. Arrow Partners C.V.
49. Ward W. Woods
50. National Health Systems, Inc.
-3-
SCHEDULE V
----------
TO
--
TWELFTH RESTATED REGISTRATION AGREEMENT
---------------------------------------
Holders of I Unit Common
- ------------------------
1. Morgan Stanley Venture Partners III, L.P.
2. Morgan Stanley Venture Investors III, L.P.
3. The Morgan Stanley Venture Partners Entrepreneur Fund, L.P.
4. Glen E. Tullman
5. David B. Mullen
6. Robert W. Rook, Jr.
7. Michael E. Cahr
8. James Rosenblum
9. Bernard Goldstein
10. Robert Compton
11. Lee Shapiro
12. Warren Tullman
13. Jeffrey Surges
14. Joseph Carey
15. Stanley Crane
16. J. Laurence Costin
17. John Peterman
18. Scott Leisher
19. Arnie Millstein
SCHEDULE VI
-----------
TO
--
TWELFTH RESTATED REGISTRATION AGREEMENT
---------------------------------------
Holders of Debenture Warrants
- -----------------------------
1. Liberty Partners Holdings 6, L.L.C.
2. Morgan Stanley Venture Partners III, L.P.
3. Morgan Stanley Venture Investors III, L.P.
4. The Morgan Stanley Venture Partners Entrepreneur Fund, L.P.
5. State Board of Administration of Florida
6. Liberty Investment Partnership #6
7. Chase Manhattan Ttee for IBM Corp. Retirement Plan Trust Dtd 12/18/45
8. Bankers Trust Trustee for Chrysler Corp. Employee #1 Pension Plan Dtd
4/1/89
9. Edward Stewart Revocable Trust
10. Comdisco Foundation
11. Awad & Associates L.P.
12. Nanette E. Scofield
13. Richard B. Felder
14. Michael D. Mintz Trust U/A 8/12/92
15. Marvin Sharfstein
16. Warren Wood
17. HAP Investment Partnership
18. Janice Robinson
19. Robert M. Zinn and Carole S. Zinn, Trustees for the Zinn Family Trust
Dated 9/5/97
20. Andrew L. Turner
21. Jacqueline Sacher
22. Bear Stearns Custodian for IRA for Stanton Scherer
-2-