EXHIBIT 4.6
EXECUTION COPY
$100,000,000 AGGREGATE PRINCIPAL AMOUNT
PER-SE TECHNOLOGIES, INC.
3.25% CONVERTIBLE SUBORDINATED DEBENTURES
DUE 2024
RESALE REGISTRATION RIGHTS AGREEMENT
DATED JUNE 30, 2004
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RESALE REGISTRATION RIGHTS AGREEMENT, dated as of June 30, 2004, between
Per-Se Technologies, Inc., a Delaware corporation (together with any successor
entity, herein referred to as the "COMPANY") and Banc of America Securities LLC,
as representative of the several initial purchasers (the "INITIAL PURCHASERS")
under the Purchase Agreement (as defined below).
Pursuant to the Purchase Agreement, dated as of June 24, 2004, between the
Company and Banc of America Securities LLC, as representative of Initial
Purchasers (the "PURCHASE AGREEMENT"), the Initial Purchasers have agreed to
purchase from the Company $100,000,000 ($125,000,000 if the Initial Purchasers
exercise their option in full) in aggregate principal amount of 3.25%
Convertible Subordinated Debentures due 2024 (the "DEBENTURES"). The Debentures
will be convertible into fully paid, nonassessable shares of common stock, par
value $.01 per share, of the Company together with the rights (the "RIGHTS")
evidenced by such Common Stock to the extent provided in the Rights Agreement
dated as of February 11, 1999, as amended, between the Company and American
Stock Transfer & Trust Company (collectively, the "COMMON STOCK"). The
Debentures will be convertible on the terms, and subject to the conditions, set
forth in the Indenture (as defined herein). To induce the Initial Purchasers to
purchase the Debentures, the Company has agreed to provide the registration
rights set forth in this Agreement pursuant to Section 5(g) of the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized terms shall have
the following meanings:
"AFFILIATE" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGREEMENT": This Resale Registration Rights Agreement.
"AMENDED EFFECTIVENESS DEADLINE DATE" has the meaning set forth in Section
2(e) hereof.
"BLUE SKY APPLICATION": As defined in Section 6(a)(i) hereof.
"BUSINESS DAY": The definition of "Business Day" in the Indenture.
"COMMISSION": Securities and Exchange Commission.
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"COMMON STOCK": As defined in the preamble hereto.
"COMPANY": As defined in the preamble hereto.
"DEBENTURES": As defined in the preamble hereto.
"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof.
"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii) hereof.
"EXCHANGE ACT": Securities Exchange Act of 1934, as amended.
"HOLDER": A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of June 30, 2004 between the Company
and U.S. Bank National Association, as trustee (the "Trustee"), pursuant to
which the Securities are to be issued, as such Indenture is amended, modified or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS": As defined in the preamble hereto.
"LIQUIDATED DAMAGES": As defined in Section 3(a) hereof.
"LIQUIDATED DAMAGES PAYMENT DATE": Each June 30 and December 30.
"MAJORITY OF HOLDERS": Holders holding over 50% of the aggregate principal
amount of Debentures outstanding; provided that, for the purpose of this
definition, a holder of shares of Common Stock which constitute Transfer
Restricted Securities issued upon conversion of the Debentures shall be deemed
to hold an aggregate principal amount of Debentures (in addition to the
principal amount of Debentures held by such holder) equal to the quotient of (x)
the number of such shares of Common Stock held by such holder and (y) the
conversion rate in effect at the time of such conversion as determined in
accordance with the Indenture.
"NASD": National Association of Securities Dealers, Inc.
"NOTICE AND QUESTIONNAIRE" means a written notice executed by the
respective Holder and delivered to the Company containing substantially the
information called for by the Selling Securityholder Notice and Questionnaire
attached as Appendix A to the Offering Memorandum of the Company issued June 24,
2004 relating to the Debentures.
"NOTICE HOLDER" has the meaning set forth in Section 2(b).
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"PERSON": An individual, partnership, corporation, company, unincorporated
organization, trust, joint venture or a government or agency or political
subdivision thereof.
"PROSPECTUS": The prospectus included in a Shelf Registration Statement,
as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such prospectus.
"PURCHASE AGREEMENT": As defined in the preamble hereto.
"RECORD HOLDER": With respect to any Liquidated Damages Payment Date, each
Person who is a Holder on the 15th day preceding the relevant Liquidated Damages
Payment Date. In the case of a Holder of shares of Common Stock issued upon
conversion of the Debentures, "Record Holder" shall mean each Person who is a
Holder of shares of Common Stock which constitute Transfer Restricted Securities
on the 15th day preceding the relevant Liquidated Damages Payment Date.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
"SECURITIES ACT": Securities Act of 1933, as amended.
"SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i) hereof.
"SUBSEQUENT SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2(c) hereof.
"SUSPENSION NOTICE": As defined in Section 4(c) hereof.
"SUSPENSION PERIOD": As defined in Section 4(b)(i) hereof.
"TIA": Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified under the TIA.
"TRANSFER RESTRICTED SECURITIES": Each Debenture and each share of Common
Stock issued upon conversion of Debentures until the earlier of:
(i) the date on which such Debenture or such share of Common
Stock issued upon conversion has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf
Registration Statement;
(ii) the date on which such Debenture or such share of Common
Stock issued upon conversion is transferred in
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compliance with Rule 144 under the Securities Act or may be sold or
transferred by a person who is not an affiliate of the Company
pursuant to Rule 144 under the Securities Act (or any other similar
provision then in force) without any volume or manner of sale
restrictions thereunder; or
(iii) the date on which such Debenture or such share of Common
Stock issued upon conversion ceases to be outstanding (whether as a
result of redemption, repurchase and cancellation, conversion or
otherwise).
"UNDERWRITTEN REGISTRATION": A registration in which Debentures of the
Company are sold to an underwriter for reoffering to the public.
Unless the context otherwise requires, the singular includes the plural,
and words in the plural include the singular.
2. Shelf Registration.
(a) The Company shall:
(i) not later than 90 days after the date hereof (the "SHELF
FILING DEADLINE"), cause to be filed a registration statement
pursuant to Rule 415 under the Securities Act (the "SHELF
REGISTRATION STATEMENT"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities held by
Holders that have provided the information required pursuant to the
terms of Section 2(b) hereof;
(ii) use its commercially reasonable efforts to cause the
Shelf Registration Statement to be declared effective by the
Commission not later than 210 days after the date hereof (the
"EFFECTIVENESS TARGET DATE"); and
(iii) use its commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 4(b) hereof to
the extent necessary to ensure that (A) it is available for resales
by the Holders of Transfer Restricted Securities entitled, subject
to Section 2(b) and Section 2(e), to the benefit of this Agreement
and (B) conforms with the requirements of this Agreement and the
Securities Act and the rules and regulations of the Commission
promulgated thereunder as announced from time to time, for a period
(the "EFFECTIVENESS PERIOD") until the earlier of:
(1) the date when the Holders of Transfer Restricted
Securities who are not affiliates of the Company are able to
sell all such Transfer Restricted
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Securities immediately without restriction pursuant to the
volume limitation provisions of Rule 144 under the Securities
Act; and
(2) the date when all of the Transfer Restricted
Securities of those Holders that complete and deliver in a
timely manner the Notice and Questionnaire are registered
under the Shelf Registration Statement and disposed of in
accordance with the Shelf Registration Statement.
(b) At the time the Shelf Registration Statement is declared
effective, each Holder that has delivered a completed Notice and
Questionnaire to the Company (a "Notice Holder") on or prior to the date
five (5) Business Days prior to such time of effectiveness shall be named
as a selling securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver
such Prospectus to purchasers of Transfer Restricted Securities in
accordance with applicable law. None of the Company's securityholders
(other than the Holders of Transfer Restricted Securities) shall have the
right to include any of the Company's securities in the Shelf Registration
Statement.
(c) If the Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because all Transfer
Restricted Securities registered thereunder shall have been resold
pursuant thereto or shall have otherwise ceased to be Transfer Restricted
Securities), the Company shall use its commercially reasonable efforts to
obtain the withdrawal as promptly as is practicable of any order
suspending the effectiveness thereof, and, to the extent necessary, amend
the Shelf Registration Statement in a manner reasonably expected to obtain
the withdrawal of the order suspending the effectiveness thereof, or file
an additional Shelf Registration Statement covering all of the securities
that as of the date of such filing are Transfer Restricted Securities ( a
"SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a Subsequent Shelf
Registration Statement is filed, the Company shall use its commercially
reasonable efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is practicable after such filing and to
keep such Registration Statement (or subsequent Shelf Registration
Statement) continuously effective until the end of the Effectiveness
Period.
(d) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable
to the registration form used by the Company for such Shelf Registration
Statement, if required by the Securities Act or as reasonably
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requested by the Trustee on behalf of the Holders of the Transfer
Restricted Securities covered by such Shelf Registration Statement.
(e) Each Holder agrees that if such Holder wishes to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus, it will do so only in accordance with this Section
2(e) and Section 4. Each Holder wishing to sell Transfer Restricted
Securities pursuant to a Shelf Registration Statement and related
Prospectus must deliver a Notice and Questionnaire to the Company. In
order to be named as a selling securityholder in the Prospectus at the
time of effectiveness of the Shelf Registration Statement, the Notice and
Questionnaire must be delivered at least five (5) Business Days prior to
the effectiveness of the Shelf Registration Statement. From and after the
date the Shelf Registration Statement is declared effective, the Company
shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered, and in any event upon the later of (x) fifteen
(15) Business Days after such date (but no earlier than fifteen (15)
Business Days after effectiveness) or (y) fifteen (15) Business Days after
the expiration of any Suspension Period in effect when the Notice and
Questionnaire is delivered or put into effect within fifteen (15) Business
Days of such delivery date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required
document so that the Holder delivering such Notice and Questionnaire
is named as a selling securityholder in the Shelf Registration
Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of the Transfer
Restricted Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to the Shelf
Registration Statement, use its commercially reasonable efforts to
cause such post-effective amendment to be declared effective under
the Securities Act as promptly as is practicable;
(ii) provide such Holder copies of the any documents filed
pursuant to Section 2(e)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 2(e)(i);
provided that if such Notice and Questionnaire is delivered during a Suspension
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above
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upon expiration of the Suspension Period in accordance with Section 4(b).
Notwithstanding anything contained herein to the contrary, the Company shall be
under no obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Registration Statement or related Prospectus.
3. Liquidated Damages.
(a) Each event referred to in the following clauses (i) through
(iv), is a "REGISTRATION DEFAULT":
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target
Date;
(iii) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but, during
the Effectiveness Period, shall thereafter cease to be effective or
fail to be usable for its intended purpose without being succeeded
within five Business Days (or if a Suspension Period is then in
effect, the fifth Business Day following the expiration of such
Suspension Period) by a post-effective amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report
filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act that cures such failure and, in the case
of a post-effective amendment, is itself immediately declared
effective; or
(iv) (A) prior to or on the 45th or 60th day, as the case may
be, of any Suspension Period, such suspension has not been
terminated or (B) Suspension Periods exceed an aggregate of 90 days
in any 360 day period.
(b) If a Registration Default occurs, other than a
Registration Default relating to a failure to file or have an effective
Shelf Registration Statement with respect to shares of Common Stock
issuable upon conversion of the Debentures that are Transfer Restricted
Securities, the Company hereby agrees to pay interest ("LIQUIDATED
DAMAGES") with respect to the Debentures that are Transfer Restricted
Securities from and including the day following the Registration Default
to but excluding the earlier of (a) the day on which the Registration
Default has been cured and (b) the date the Shelf Registration Statement
is no longer required to be kept effective, accruing at a rate (i) with
respect to the first 90-day period during which a Registration Default
shall have occurred and be continuing, equal to 0.25% per annum of the
principal amount of the
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Debentures, and (ii) with respect to the period commencing on the 91st day
following the day the Registration Default shall have occurred and be
continuing, equal to 0.50% per annum of the principal amount of the
Debentures; provided that in no event shall Liquidated Damages accrue at a
rate per year exceeding 0.50% of the aggregate principal amount of the
Debentures.
In respect of Common Stock each Holder of Common Stock will not be
entitled to any Liquidated Damages.
(c) All accrued Liquidated Damages shall be paid in arrears to
Record Holders by the Company on each Liquidated Damages Payment Date.
Upon the cure of all Registration Defaults relating to any particular
Debenture, the accrual of Liquidated Damages with respect to such
Debenture will cease.
All obligations of the Company set forth in this Section 3 that are
outstanding with respect to any Debenture that is a Transfer Restricted Security
at the time such Debenture ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such Transfer
Restricted Security shall have been satisfied in full.
The Liquidated Damages set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for each
Registration Default.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the Company
shall comply with all the provisions of Section 4(b) hereof and shall use
its commercially reasonable efforts to effect such registration to permit
the sale of the Transfer Restricted Securities, and pursuant thereto,
shall prepare and file with the Commission a Shelf Registration Statement
relating to the registration on any appropriate form under the Securities
Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in accordance with
this Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D), use its commercially reasonable
efforts to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence of
any event that would cause the Shelf Registration Statement or the
Prospectus contained therein (A) to contain a
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material misstatement or omission or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the
Effectiveness Period, the Company shall file as promptly as
practicable an appropriate amendment to the Shelf Registration
Statement, a supplement to the Prospectus or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or
(B), use its commercially reasonable efforts to cause such amendment
to be declared effective and the Shelf Registration Statement and
the related Prospectus to become usable for their intended purposes
as soon as practicable thereafter. Notwithstanding the foregoing,
the Company may suspend the use of the Shelf Registration Statement
by written notice to the Holders for a period not to exceed an
aggregate of 45 days in any 90-day period (each such period, a
"SUSPENSION PERIOD") if:
(x) an event occurs and is continuing as a result of which the
Shelf Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference
therein would, in the Company's judgment, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and
(y) the Company determines in good faith that the disclosure
of such event at such time would be seriously detrimental to the
Company and its subsidiaries;
provided that, in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which the Company determines in good faith would be
reasonably likely to impede the Company's ability to consummate such
transaction, the Company may extend a Suspension Period from 45 days to 60
days; provided, however, that Suspension Periods shall not exceed an
aggregate of 120 days in any 360-day period. The Company shall not be
required to specify in the written notice to the Holders the nature of the
event giving rise to the Suspension Period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary to keep the Shelf Registration Statement effective
during the Effectiveness Period; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities
Act, and to comply fully with the applicable provisions of Rules 424
and 430A under the
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Securities Act in a timely manner; and comply with the provisions of
the Securities Act with respect to the disposition of all Debentures
covered by the Shelf Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in the Shelf
Registration Statement or supplement to the Prospectus.
(iii) Advise each Holder named in the Shelf Registration
Statement as promptly as is practicable upon obtaining knowledge
thereof and, if requested by such Holders, to confirm such advice in
writing, except as provided in clause (D) below:
(A) when the Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with
respect to the Shelf Registration Statement or any
post-effective amendment thereto, when the same has
become effective,
(B) of any request by the Commission for amendments
to the Shelf Registration Statement or amendments or
supplements to the Prospectus or for additional
information relating thereto,
(C) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf
Registration Statement under the Securities Act or of
the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, or
(D) of the existence of any fact or the happening of
any event, during the Effectiveness Period, that makes
any statement of a material fact made in the Shelf
Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of
any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the
statements therein not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company
shall use its commercially reasonable efforts to obtain the withdrawal or
lifting
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of such order as promptly as is practicable and will provide to each
Holder who is named in the Shelf Registration Statement notice as promptly
as is practicable of the withdrawal of any such order.
(iv) Make available at reasonable times for inspection by one
or more representatives of the selling Holders, designated in
writing by a Majority of Holders whose Transfer Restricted
Securities are included in the Shelf Registration Statement, and any
attorney or accountant retained by such selling Holders, all
financial and other records, pertinent corporate documents and
properties of the Company as shall be reasonably necessary to enable
them to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act, and cause the Company's officers,
directors, managers and employees to supply all information
reasonably requested by any such representative or representatives
of the selling Holders, attorney or accountant in connection
therewith; provided, however, that the Company shall have no
obligation to deliver information to any selling Holder or
representative pursuant to this Section 4(b)(iv) unless such selling
Holder or representative shall have executed and delivered a
confidentiality agreement in a form acceptable to the Company
relating to such information.
(v) If requested by any selling Holders, incorporate as
promptly as is practicable in the Shelf Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders may reasonably
request to have included in the information relating to the "PLAN OF
DISTRIBUTION" of the Transfer Restricted Securities.
(vi) Furnish to each Holder named in the Shelf Registration
Statement upon their request, without charge, at least one copy of
the Shelf Registration Statement, as first filed with the
Commission, and of each amendment thereto (and any documents
incorporated by reference therein or exhibits thereto (or exhibits
incorporated in such exhibits by reference) as such Person may
request).
(vii) Deliver to each Holder named in the Shelf Registration
Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; subject
to any notice by the Company in accordance with this Section 4(b) of
the existence of any fact or event of the kind described in Section
4(b)(iii)(D), the Company hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the
Holders named in the Shelf Registration
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Statement in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto.
(viii) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions in the United States as the selling Holders may
reasonably request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required
(A) to register or qualify as a foreign corporation or a dealer of
securities where it is not now so qualified or to take any action
that would subject it to the service of process in any jurisdiction
where it is not now so subject or (B) to subject itself to general
or unlimited service of process or to taxation in any such
jurisdiction if they are not now so subject.
(ix) Cooperate with the selling Holders to facilitate the
timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any
restrictive legends (unless required by applicable securities laws);
and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders may
request at least two Business Days before any sale of Transfer
Restricted Securities.
(x) Use its commercially reasonable efforts to cause the
Transfer Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other U.S.
governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities.
(xi) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use its commercially reasonable efforts to prepare a
supplement or post-effective amendment to the Shelf Registration
Statement or related Prospectus or any document incorporated therein
by reference or file any other required document so that, as
thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will 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 in which they are made, not misleading.
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(xii) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf
Registration Statement and provide the Trustee under the Indenture
with certificates for the Debentures that are in a form eligible for
deposit with The Depository Trust Company.
(xiii) Cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be retained in
accordance with the rules and regulations of the NASD.
(xiv) Otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission
and all reporting requirements under the rules and regulations of
the Exchange Act.
(xv) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the holders of Debentures to effect such
changes to the Indenture as may be required for such Indenture to be
so qualified in accordance with the terms of the TIA; and execute
and use its commercially reasonable efforts to cause the Trustee
thereunder to execute all documents that may be required to effect
such changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so qualified in a
timely manner.
(xvi) Cause all Common Stock covered by the Shelf Registration
Statement to be listed or quoted, as the case may be, on each
securities exchange or automated quotation system on which Common
Stock is then listed or quoted.
(xvii) Provide to each Holder upon written request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act after the effective
date of the Shelf Registration Statement, unless such document is
available through the Commission's EDGAR system.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Company of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the Shelf Registration
Statement until:
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(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xi) hereof; or
(ii) such Holder is advised in writing by the Company that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by
reference in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
(d) Each Holder agrees by acquisition of a Transfer Restricted
Security, that no Holder shall be entitled to sell any of such Transfer
Restricted Securities pursuant to a Registration Statement, or to receive
a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section
2(e) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next
sentence. Each Notice Holder agrees to furnish to the Company as promptly
as is practicable all information required to be disclosed in order to
make the information previously furnished to the Company by such Notice
Holder not misleading and any other information regarding such Notice
Holder and the distribution of such Transfer Restricted Securities as the
Company may from time to time reasonably request in writing. Any sale of
any Transfer Restricted Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating
to such Holder and its plan of distribution is as set forth in the
Prospectus delivered by such Holder in connection with such disposition,
that such Prospectus does not as of the time of such sale contain any
untrue statement of a material fact relating to or provided by such Holder
or its plan of distribution and that such Prospectus does not as of the
time of such sale omit to state any material fact relating to or provided
by such Holder or its plan of distribution necessary to make the
statements in such Prospectus, in the light of the circumstances under
which they were made, not misleading.
5. Registration Expenses.
All expenses incident to the Company's performance of or compliance with
this Agreement shall be borne by the Company regardless of whether a Shelf
Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees and expenses (including
filings made with the NASD);
15
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the Debentures) and the Company's expenses for
messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel to the Company;
(v) all application and filing fees in connection with listing
(or authorizing for quotation) the Common Stock on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Company.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company. All fees and expenses of the Notice Holders, including fees and
expenses of counsel, shall be borne by the Notice Holders.
6. Indemnification And Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder of
Transfer Restricted Securities by the Shelf Registration Statement
(including each Initial Purchaser), its directors, officers, and employees
and each person, if any, who controls any such Holder within the meaning
of the Securities Act or the Exchange Act (each, an "INDEMNIFIED HOLDER"),
against any loss, claim, damage, liability or expense, joint or several,
or any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to resales of the Transfer
Restricted Securities), to which such Indemnified Holder may become
subject, insofar as any such loss, claim, damage, liability or action
arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement as
originally filed or in any amendment thereof, in any Prospectus, or
in any amendment or supplement thereto or (B) any blue sky
application or other document or any amendment or supplement thereto
prepared or executed by the Company (or based upon written
information furnished by or on behalf of the Company expressly for
use in such blue sky application or other document or
16
amendment on supplement) filed in any jurisdiction specifically for
the purpose of qualifying any or all of the Transfer Restricted
Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called
a "BLUE SKY APPLICATION"); or
(ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading,
and agrees to reimburse each Indemnified Holder promptly upon demand for any
legal or other expenses reasonably incurred by such Indemnified Holder in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of such Holder (or its related Indemnified Holder)
specifically for use therein; provided, further, that the foregoing indemnity
agreement with respect to any prospectus shall not inure to the benefit of a
Holder, or any person controlling such Holder, who failed to deliver a
prospectus, as then amended or supplemented (so long as the prospectus and any
amendment or supplement thereto was provided by the Company to the Holder on a
timely basis to permit proper delivery upon confirmation of a sale), to the
person asserting any losses, claims, damages, liabilities, expenses or judgments
caused by any untrue statement or alleged untrue statement of a material fact
contained in any prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, if such material misstatement or omission
or alleged material misstatement or omission was cured in the prospectus, as so
amended or supplemented. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have.
(b) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless the Company, its directors, officers and employees and each
person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to each such Holder, but only with reference to
written information relating to such Holder furnished to the Company by or
on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement set forth
in this Section shall be in addition to any liabilities which any such
Holder may otherwise have. In no event shall any Holder, its directors,
officers or any person who controls such Holder be liable or responsible
for any amount in excess of the amount by which the total price at which
the
17
Transfer Restricted Securities purchased by it were resold exceeds the
amount of any damages that such Holder, its directors, officers or any
person who controls such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 6 except to the extent it has been materially prejudiced by such
failure and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 6. If any
such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 6
for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable costs
of investigation; provided, however, that the Holders shall have the right
to employ a single counsel to represent jointly the Holders and their
officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought by the Holders against the Company under this Section 6 if the
Holders seeking indemnification shall have been advised by legal counsel
that there may be one or more legal defenses available to such Holders and
their respective officers, employees and controlling persons that are
different from or additional to those available to the Company, and in
that event, the fees and expenses of such separate counsel shall be paid
by the Company.
(d) The indemnifying party under this Section shall not be liable
for any settlement of any proceeding effected without its written consent,
which shall not be withheld unreasonably, but if settled with such consent
or if there is a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld),
effect any settlement, compromise or consent to the entry of judgment in
18
any pending or threatened action, suit or proceeding in respect of which
any indemnified party is or could reasonably have been a party and
indemnity was or could reasonably have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent (x)
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding and (y) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party.
(e) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability (or action in respect
thereof):
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Company from the offering and sale
of the Transfer Restricted Securities on the one hand and a Holder
with respect to the sale by such Holder of the Transfer Restricted
Securities on the other, or
(ii) if the allocation provided by Section (6)(e)(i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in Section
6(e)(i) but also the relative fault of the Company on the one hand
and the Holders on the other in connection with the statements or
omissions or alleged statements or alleged omissions that resulted
in such loss, claim, damage or liability (or action in respect
thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Debentures purchased under the Purchase Agreement (before deducting expenses)
received by the Company, on the one hand, bear to the total proceeds received by
such Holder with respect to its sale of Transfer Restricted Securities on the
other. The relative fault of the parties shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Holders on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation that does
19
not take into account the equitable considerations referred to in the first
sentence of this paragraph (e).
The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 6 shall be deemed to include, for purposes of this Section
6, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim.
Notwithstanding the provisions of this Section 6, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities purchased by it were resold
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute as provided in this
Section 6(e) are several and not joint.
(f) The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors or controlling persons
referred to in Section 6 hereof, and will survive the sale by a Holder of
Transfer Restricted Securities.
7. Rule 144A and Rule 144. The Company agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding and during any
period in which the Company (i) is not subject to Section 13 or 15(d) of the
Exchange Act, to make available, upon request of any Holder, to such Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A, and (ii) is subject to Section 13
or 15 (d) of the Exchange Act, to use its commercially reasonable efforts to
make all filings required thereby in a timely manner in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144.
8. No Participation In Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Section 2 hereof may
result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not
20
be possible to measure damages for such injuries precisely, and that, in
the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the
Company's obligations under Section 2 hereof. The Company further agrees
to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(b) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. In addition, the Company shall not
grant to any of its securityholders (other than the Holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in the Shelf Registration Statement provided for in this
Agreement other than the Transfer Restricted Securities.
(c) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given, unless the Company has obtained
the written consent of a Majority of Holders; provided, however, that with
respect to any matter that directly or indirectly adversely affects the
rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be
effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to depart from the provisions hereof, with respect to a
matter, which relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Shelf Registration Statement and
does not directly or indirectly adversely affect the rights of other
Holders, may be given by the Majority Holders, determined on the basis of
Debentures being sold rather than registered under such Shelf Registration
Statement.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first class
mail (registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of the
Common Stock, as the case may be; and
(ii) if to the Company, at its address set forth in the
Purchase Agreement,
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With a copy to:
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309
Facsimile: 404-253-8247
Attention: J. Vaughan Curtis
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities. The
Company hereby agrees to extend the benefit of this Agreement to any
Holder and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(f) 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.
(g) Debentures Held by the Company or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Company or its Affiliates (other than subsequent
Holders if such subsequent Holders are deemed to be Affiliates solely by
reason of their holding of such Debentures) shall not be counted in
determining whether such consent or approval was given by the Holders of
such required percentage.
(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 law of the State of New York.
22
(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, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(k) 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 in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights
granted by the Company with respect to the Transfer Restricted Securities.
This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PER-SE TECHNOLOGIES, INC.
By: /s/ CHRIS E. PERKINS
------------------------------------
Name: Chris E. Perkins
Title: Executive Vice President
and Chief Financial Officer
BANC OF AMERICA SECURITIES LLC
Acting on behalf of itself and the
several Initial Purchasers
By: /s/ CHARLES DITKOFF
------------------------------------
Authorized Representative