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EXHIBIT 4.8
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
BETWEEN
NEW ENVOY, INC.
(TO BE RENAMED ENVOY CORPORATION)
AND
FIRST DATA CORPORATION
DATED AS OF JUNE 6, 1995
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TABLE OF CONTENTS
Section 1. Definitions and Usage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Usage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2. Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1. Demands for Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2. Procedures for Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.3. Limitations on Number of Demand Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4. Form of Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.5. Selection of Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.6. Cutback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3. Piggyback Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1. Right to Include Registrable Securities in Registration . . . . . . . . . . . . . . . . . . . . . . 7
3.2. Cutback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.3. Number of Piggyback Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.1. Preparation and Filing of Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.2. Filing of Amendment and Supplements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.3. Furnishing Copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.4. Blue Sky Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.5. Underwriting or Agency Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.6. Notice of Stop Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.7. Periodic Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.8. Inspection of Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.9. Comfort Letter; Legal Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.10. Transfer Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.11. Listing of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.12. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.13. Actions to Expedite Disposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5. Selling Holders' Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.1. Information Relating to Selling Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.2. Agreement with Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6. Expenses of Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.1. Expenses of Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.2. Piggyback Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.3. Failure to Pay Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Section 7. Indemnification; Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.1. Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.2. Indemnification by Selling Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.3. Notice of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.4. Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.5. Full Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.6. Survival of Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8. Transfer of Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 9. Holdback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 10. Covenants of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10.1. Exchange Act Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10.2. Holdbacks; Future Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10.3. Merger, Consolidation, Reorganization, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.4. Limitation on Grant of Registration Rights to Others . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 11. Amendment; Modification and Waivers; Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 12. Assignment; Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 13. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
13.1. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
13.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
13.3. Entire Agreement; Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
13.4. Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.5. Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.6. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.7. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.8. Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.9. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.10. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.11. No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of June 6,
1995 among NEW ENVOY, INC., a Tennessee corporation to be renamed Envoy
Corporation (the "Company"), and FIRST DATA CORPORATION, a Delaware corporation
("FDC").
RECITALS
WHEREAS, pursuant to that certain Note Purchase Agreement dated as of
June 6, 1995 between the Company and FDC (the "Note Purchase Agreement"), FDC
has agreed to purchase (or to cause one or more of its Affiliates to purchase)
from the Company, subject to certain conditions, up to $10,000,000 in aggregate
principal amount of the 9% Convertible Subordinated Notes Due 2000 of the
Company (the "Notes"), which Notes are to be convertible at the option of the
holder thereof into shares (the "Shares") of the Company's Common Stock (as
defined below);
WHEREAS, pursuant to the Note Purchase Agreement, as a condition to
FDC's agreement to purchase the Notes, the Company has agreed to provide
certain holders of the Notes and/or the Shares with certain rights as set forth
in this Agreement to cause the Notes and/or the Shares to be registered
pursuant to the Securities Act (as defined below); and
WHEREAS, the parties hereto hereby desire to set forth such holders'
rights and the Company's obligations to cause the registration of the
Registrable Securities (as defined below) pursuant to the Securities Act (as
defined below);
NOW, THEREFORE, in consideration of the transactions contemplated by
the Note Purchase Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions and Usage.
As used in this Agreement:
1.1. Definitions.
"Agent" means the principal placement agent on an agented placement of
Registrable Securities.
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission.
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"Common Stock'' means (i) the common stock, without par value, of the
Company and (ii) shares of capital stock of the Company issued by the Company in
respect of or in exchange for shares of such common stock in connection with any
stock dividend or distribution, stock split-up, recapitalization, recombination
or exchange by the Company generally of shares of such common stock.
"Company" has the meaning set forth in the preamble hereof.
"Continuously Effective", with respect to a specified registration
statement, means that it shall not cease to be effective or available for
Transfers of Registrable Securities thereunder for longer than either (i) any
ten (10) consecutive business days, or (ii) an aggregate of fifteen (15)
business days during the period specified in the relevant provision of this
Agreement; provided that in the case of a registration statement on Form S-1,
such registration shall be deemed to be Continuously Effective even if it does
not meet the foregoing criteria so long as (A) the Company uses its reasonable
best efforts to cause such registration statement to be effective and available
for Transfers of the applicable Registrable Securities throughout the
applicable period and (B) the aggregate amount of time during which such
registration statement is not effective or is otherwise not available for such
Transfers does not exceed 30 days during any calendar quarter.
"Demand Registration" has the meaning set forth in Section 2.1(i).
"Demanding Holders" has the meaning set forth in Section 2.1(i).
"Exchange Act" means the Securities Exchange Act of 1934.
"FDC" has the meaning set forth in the preamble hereof.
"Holders" means any Original Purchaser and any Transferees of
Registrable Securities with respect to the rights that such Transferees shall
have acquired in accordance with Section 8, at such times as such Persons shall
own Registrable Securities.
"Majority Selling Holders" means those Selling Holders whose
Registrable Securities included in such registration represent a majority of
the Registrable Securities of all Selling Holders included therein.
"Note Purchase Agreement" has the meaning set forth in the first
recital hereof.
"Notes" has the meaning set forth in the first recital hereof.
"Original Purchaser" means FDC and/or such Affiliates thereof as shall
purchase Notes pursuant to the Note Purchase Agreement.
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"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"Piggyback Registration" has the meaning set forth in Section 3.1.
"Register", "registered", and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document
in compliance with the Securities Act, and the declaration or ordering by the
Commission of effectiveness of such registration statement or document.
"Registrable Securities" means, subject to Section 8 and Section 10.3:
(i) the Notes issued to the Original Purchasers pursuant to the Note Purchase
Agreement, and owned by a Holder on the date of determination, (ii) any Shares
issued upon conversion of the Notes and owned by a Holder on the date of
determination, (iii) any shares of Common Stock or other securities issued as
(or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange by the Company generally for, or in replacement by the Company
generally of, any such Notes or Shares; and (iv) any securities issued in
exchange for any Notes or Shares in any merger or reorganization of the
Company; provided, however, that any such securities described in the foregoing
clauses (i) through (iv) shall be deemed to be Registrable Securities for the
purposes hereof only so long as they have not been (x) Transferred to or
through a broker or dealer or underwriter in a public distribution or offering
or (y) Transferred in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act pursuant to Section 4(1) thereof so
that all transfer restrictions and restrictive legends with respect to such
securities are removed upon the consummation of such Transfer. For purposes of
this Agreement, a Person will be deemed to be a Holder of Registrable
Securities whenever such Person has the then-existing right to acquire such
Registrable Securities (by conversion, purchase or otherwise), whether or not
such acquisition has actually been effected. For the purpose of determining the
Holders of a stated percentage of the Registrable Securities under this
Agreement, each Note shall be deemed to represent the number of Shares into
which it is then convertible.
"Registrable Securities then outstanding" means, with respect to a
specified determination date, the Registrable Securities owned by all Holders
on such date.
"Registration Expenses" has the meaning set forth in Section 6.1.
"Securities Act" means the Securities Act of 1933.
"Selling Holders" means, with respect to a specified registration
pursuant to this Agreement, Holders whose Registrable Securities are included
in such registration.
"Shares" has the meaning set forth in the first recital hereof.
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"Transfer" means and includes the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging, hypothecating or otherwise transferring as
security) (and correlative words shall have correlative meanings); provided,
however, that any transfer or other disposition upon foreclosure or other
exercise of remedies of a secured creditor after an event of default under or
with respect to a pledge, hypothecation or other transfer as security shall
constitute a "Transfer."
"Transferee" means any transferee of Registrable Securities or other
assets in a Transfer.
"Transferor" means any transferor of Registrable Securities or other
assets in a Transfer.
"Underwriters' Representative" means the managing underwriter, or, in
the case of a co-managed underwriting, the managing underwriter designated as
the Underwriters' Representative by the co-managers.
"Violation" has the meaning set forth in Section 7.1.
1.2. Usage.
(i) References to a Person are also references to its assigns
and successors in interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the case may be).
(ii) References to Registrable Securities "owned" by a Holder
shall include Registrable Securities beneficially owned by such Person but
which are held of record in the name of a nominee, trustee, custodian, or other
agent, but shall exclude shares of Common Stock held by a Holder in a fiduciary
capacity for customers of such Person.
(iii) References to a document are to it as amended, waived and
otherwise modified from time to time and references to a statute or other
governmental rule are to it as amended and otherwise modified from time to time
(and references to any provision thereof shall include references to any
successor provision).
(iv) References to Sections or to Schedules or Exhibits are to
sections hereof or schedules or exhibits hereto, unless the context otherwise
requires.
(v) The definitions set forth herein are equally applicable
both to the singular and plural forms and the feminine, masculine and neuter
forms of the terms defined.
(vi) The term "including" and correlative terms shall be deemed
to be followed by "without limitation" whether or not followed by such words or
words of like import.
(vii) The term "hereof" and similar terms refer to this Agreement
as a whole.
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(viii) The "date of" any notice or request given pursuant to this
Agreement shall be determined in accordance with Section 13.2.
Section 2. Demand Registration.
2.1. Demands for Registration.
(i) At any time on or after the issuance of the Notes pursuant
to the Note Purchase Agreement, if one or more Holders that own in the
aggregate a majority of the Registrable Securities then outstanding shall make
a written demand to the Company (the "Demanding Holders"), the Company shall
cause there to be filed with the Commission a registration statement meeting
the requirements of the Securities Act (a "Demand Registration"), and each
Demanding Holder shall be entitled to have included therein (subject to Section
2.6) all or such amount of such Demanding Holder's Registrable Securities, as
the Demanding Holder shall request in writing; provided, however, that no
request may be made pursuant to this Section 2.1 if within six months prior to
the date of such request a Demand Registration pursuant to this Section 2.1
shall have been declared effective by the Commission. Any request made pursuant
to this Section 2.1 shall be addressed to the attention of the Secretary of the
Company, and shall specify the amount of Registrable Securities to be
registered, the intended methods of disposition thereof and that the request is
for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to 90 days
the filing of any Demand Registration statement otherwise required to be
prepared and filed pursuant to this Section 2.1, if the Board determines, in
its good faith judgment, that such registration and the Transfer of Registrable
Securities contemplated thereby would materially interfere with, or require
premature disclosure of, any financing, acquisition, reorganization or other
material transaction involving the Company or any of its wholly-owned
subsidiaries and the Company promptly gives the Demanding Holders notice of
such determination.
(iii) Whenever the Company shall have received a demand pursuant
to Section 2.1(i) to effect the registration of any Registrable Securities, the
Company shall promptly give written notice of such proposed registration to all
Holders. Any such Holder may, within 20 days after receipt of such notice,
request in writing that all of such Holder's Registrable Securities, or any
portion thereof designated by such Holder, be included in the registration. If,
at the end of such 20-day period, the total amount of Registrable Securities
requested to be included in such registration by the Holders as a group
(including the Demanding Holders) represents less than 25% of the amount of
Registrable Securities then outstanding, the Company may within 10 days
thereafter elect not to proceed with the requested registration by giving
notice of such election to each Holder that has requested the inclusion of
Registrable Securities therein, in which event the requested registration shall
not be deemed to constitute a Demand Registration for the purposes hereof.
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(iv) At the request of the Majority Selling Holders, the method
of disposition of all Registrable Securities included in a Demand Registration
shall be an underwritten offering.
2.2. Procedures for Demand Registration. Following receipt of a
request for a Demand Registration, the Company shall:
(i) File the registration statement with the Commission as
promptly as practicable, and shall use the Company's best efforts to have the
registration declared effective under the Securities Act as soon as reasonably
practicable, in each instance giving due regard to the need to prepare current
financial statements, conduct due diligence and complete other actions that are
reasonably necessary to effect a registered public offering.
(ii) Use the Company's best efforts to keep the relevant
registration statement Continuously Effective if a Demand Registration, for up
to 180 days or until such earlier date as of which all the Registerable
Securities under the Demand Registration Statement shall have been disposed of
in the manner described in the registration statement. Notwithstanding the
foregoing, if for any reason the effectiveness of a Demand Registration is
suspended or postponed as permitted by Section 2.1(ii), the foregoing period
shall be extended by the aggregate number of days of such suspension or
postponement.
2.3. Limitations on Number of Demand Registrations. The Company
shall be obligated to effect no more than two Demand Registrations. For
purposes of the preceding sentence, registration shall not be deemed to have
been effected (i) unless a registration statement with respect thereto has
become effective, (ii) if after such registration statement has become
effective, such registration or the related offer, sale or distribution of
Registrable Securities thereunder is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to the Selling
Holders and such interference is not thereafter eliminated or (iii) if the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such registration are not satisfied or waived, other
than by reason of a failure on the part of the Selling Holders. If the Company
shall have complied with its obligations under this Agreement, a right to
demand a registration pursuant to this Section 2 shall be deemed to have been
satisfied upon the earlier of (x) the date as of which all of the Registrable
Securities included therein shall have been disposed of pursuant to the
registration statement and (y) the date as of which such Demand Registration
shall have been Continuously Effective for a period of 180 days.
Notwithstanding the foregoing, (A) if an underwritten offering pursuant to a
Demand Registration is terminated prior to closing for reasons beyond the
reasonable control of the Selling Holders, such registration shall not be
deemed to have been effected for the purposes hereof and (B) if the Selling
Holders otherwise request that the Company withdraw any Demand Registration,
such registration shall not be deemed to have been effected for the purposes
hereof (and the Selling Holders shall be required to reimburse the Company for
all related Registration Expenses as provided in Section 6.1) unless Holders
whose Registrable Securities constitute a majority of the
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Registrable Securities then outstanding agree that such withdrawn registration
shall constitute one of the Demand Registrations permitted under Section 2.1.
2.4. Form of Demand Registration. A registration pursuant to
this Section 2 shall be on such appropriate registration form of the Commission
as shall (i) be selected by the Company and be reasonably acceptable to the
Majority Selling Holders and (ii) permit the disposition of the Registrable
Securities in accordance with the intended method or methods of disposition
specified in the request pursuant to Section 2.1(i).
2.5. Selection of Underwriters. If any registration pursuant to
Section 2 involves an underwritten offering (whether on a "firm", "best
efforts" or "all reasonable efforts" basis or otherwise), or an agented
offering, the Majority Selling Holders shall have the right to select the
underwriter or underwriters and manager or managers to administer such
underwritten offering or the placement agent or agents for such agented
offering; provided, however, that each Person so selected shall be reasonably
acceptable to the Company.
2.6. Cutback. Whenever the Company shall effect a registration
pursuant to this Section 2 in connection with an underwritten offering by one
or more Selling Holders of Registrable Securities: (i) if such Selling Holders
have requested the inclusion therein of more than one class of Registrable
Securities, and the Underwriters' Representative or Agent advises each such
Selling Holder in writing that, in its opinion, the inclusion of more than one
class of Registrable Securities would adversely affect such offering, the
Demanding Holders holding at least a majority of the Registrable Securities
proposed to be sold therein by them, shall decide which class of Registrable
Securities shall be included therein in such offering and the related
registration, and the other class shall be excluded; and (ii) if the
Underwriters' Representative or Agent advises each such Selling Holder in
writing that, in its opinion, the amount of securities requested to be included
in such offering (whether by Selling Holders or others) exceeds the amount
which can be sold in such offering within a price range acceptable to the
Majority Selling Holders, securities shall be included in such offering and the
related registration, to the extent of the amount which can be sold within such
price range, first, on a pro rata basis among all Selling Holders and second,
on a pro rata basis among all others requesting securities to be included in
such registration.
Section 3. Piggyback Registration.
3.1. Right to Include Registrable Securities in Registration. If
at any time the Company proposes to register (including for this purpose a
registration effected by the Company for shareholders of the Company other than
the Holders) shares of Common Stock under the Securities Act in connection with
the public offering solely for cash on Form S-1, S-2 or S-3 (or any replacement
or successor forms), the Company shall promptly give each Holder of Registrable
Securities written notice of such registration (a "Piggyback Registration").
Upon the written request of each Holder given within 20 days following the date
of such notice, the Company shall cause to be included in such registration
statement and use its best efforts to
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cause to be registered under the Securities Act all the Registrable Securities
consisting of Common Stock that each such Holder shall have requested to be
registered. The Company shall have the absolute right to withdraw or cease to
prepare or file any registration statement for any offering referred to in this
Section 3 without any obligation or liability to any Holder.
3.2. Cutback. If the Underwriters' Representative or Agent shall
advise the Company in writing (with a copy to each Selling Holder) that, in its
opinion, the amount of Registrable Securities requested to be included in such
registration would materially adversely affect such offering, or the timing
thereof, then the Company will include in such registration, to the extent of
the amount and class which the Company is so advised can be sold without such
material adverse effect in such offering: First, all securities proposed to be
sold by the Company for its own account; second, the Registrable Securities
requested to be included in such registration by Holders pursuant to this
Section 3, and all other securities being registered pursuant to the exercise
of contractual rights comparable to the rights granted in this Section 3, pro
rata based on the estimated gross proceeds from the sale thereof; and third any
other securities requested to be included in such registration.
3.3. Number of Piggyback Registrations. Each Holder shall be
entitled to have its Registrable Securities included in an unlimited number of
Piggyback Registrations pursuant to this Section 3.
Section 4. Registration Procedures. Whenever required under Section 2
or Section 3 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as practicable:
4.1. Preparation and Filing of Registration Statement. Prepare
and file with the Commission a registration statement with respect to such
Registrable Securities and use the Company's best efforts to cause such
registration statement to become effective; provided, however, that before
filing a registration statement or prospectus or any amendments or supplements
thereto, including documents incorporated by reference after the initial filing
of the registration statement and prior to effectiveness thereof, the Company
shall furnish to one legal counsel for the Selling Holders (selected by the
Majority Selling Holders) copies of all such documents in the form
substantially as proposed to be filed with the Commission at least four
business days prior to filing for review and comment by such counsel.
4.2. Filing of Amendment and Supplements. Prepare and file with
the Commission such amendments and supplements to such registration statement
and the prospectus used in connection with such registration statement as may
be necessary to comply with the provisions of the Securities Act and rules
thereunder with respect to the disposition of all securities covered by such
registration statement. If the registration is for an underwritten offering,
the Company shall amend the registration statement or supplement the prospectus
whenever required by the terms of the underwriting agreement entered into
pursuant to Section 5.2. Pending such amendment or supplement each such Holder
shall cease making offers or Transfers of
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Registrable Securities pursuant to the prior prospectus. In the event that any
Registrable Securities included in a registration statement subject to, or
required by, this Agreement remain unsold at the end of the period during which
the Company is obligated to use its best efforts to maintain the effectiveness
of such registration statement, the Company may file a post-effective amendment
to the registration statement for the purpose of removing such Registrable
Securities from registered status.
4.3. Furnishing Copies. Furnish to each Selling Holder of
Registerable Securities, without charge, such numbers of copies of the
registration statement, any pre-effective or post-effective amendment thereto,
the prospectus, including each preliminary prospectus and any amendments or
supplements thereto, in each case in conformity with the requirements of the
Securities Act and the rules thereunder, and such other related documents as
any such Selling Holder may reasonably request in order to facilitate the
disposition of Registrable Securities owned by such Selling Holder.
4.4. Blue Sky Laws. Use the Company's best efforts (i) to
register and qualify the securities covered by such registration statement
under such other securities or Blue Sky laws of such states or jurisdictions as
shall be reasonably requested by the Underwriters' Representative or Agent (as
applicable, or if inapplicable, the Majority Selling Holders), and (ii) to
obtain the withdrawal of any order suspending the effectiveness of a
registration statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of the offer and Transfer of any of the
Registrable Securities in any jurisdiction, at the earliest possible moment;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions or to
take any other action that would subject it in any such states or jurisdictions
to taxation or to service of process in suits other than those arising out of
the offer and sale of the securities covered by the registration statement.
4.5. Underwriting or Agency Agreement. In the event of any
underwritten or agented offering, enter into and perform the Company's
obligations under an underwriting or agency agreement (including
indemnification and contribution obligations of underwriters or agents), in
usual and customary form, with the managing underwriter or underwriters of or
agents for such offering. The Company shall also cooperate with the Majority
Selling Holders and the Underwriters' Representative or Agent for such offering
in the marketing of the Registrable Securities, including making available the
Company's officers, accountants, counsel, premises, books and records for such
purpose.
4.6. Notice of Stop Order. Promptly notify each Selling Holder
of any stop order issued or threatened to be issued by the Commission in
connection therewith (and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered).
4.7. Periodic Reports. Make generally available to the Company's
security holders copies of all periodic reports, proxy statements, and other
information referred to in Section 10.1
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and an earnings statement satisfying the provisions of Section ll(a) of the
Securities Act no later than 90 days following the end of the 12-month period
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of each registration statement filed pursuant to this
Agreement.
4.8. Inspection of Financial Information. Make available for
inspection by any Selling Holder, any underwriter participating in such
offering and the representatives of such Selling Holder and underwriter (but
not more than one firm of counsel to such Selling Holders), all financial and
other information as shall be reasonably requested by them, and provide the
Selling Holder, any underwriter participating in such offering and the
representatives of such Selling Holder and underwriter the opportunity to
discuss the business affairs of the Company with its principal executives and
independent public accountants who have certified the audited financial
statements included in such registration statement, in each case all as
necessary to enable them to exercise their due diligence responsibilities under
the Securities Act; provided, however, that information that the Company
determines, in good faith, to be confidential and which the Company advises
such Person in writing, is confidential shall not be disclosed unless such
Person signs a confidentiality agreement reasonably satisfactory to the Company
or the related Selling Holder of Registrable Securities agrees to be
responsible for such Person's breach of confidentiality on terms reasonably
satisfactory to the Company.
4.9. Comfort Letter; Legal Opinion. Obtain a so-called "comfort
letter" from its independent public accountants, and legal opinions of counsel
to the Company addressed to the Selling Holders, in customary form and covering
such matters of the type customarily covered by such letters and opinions, and
in a form that shall be reasonably satisfactory to Majority Selling Holders.
The Company shall furnish to each Selling Holder a signed counterpart of any
such comfort letter or legal opinion. Delivery of any such opinion or comfort
letter shall be subject to the recipient furnishing such written
representations or acknowledgments as are customarily provided by selling
shareholders who receive such comfort letters or opinions.
4.10. Transfer Agent. Provide and cause to be maintained a
transfer agent and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the effective date
of such registration statement.
4.11. Listing of Shares. Cause any shares of Common Stock
covered by such registration statement (i) if the Common Stock is then listed
on a securities exchange or included for quotation in a recognized trading
market, to be listed on such exchange or included in such market for a
reasonable period of time after the offering and (ii) to be registered with or
approved by such other United States or state governmental agencies or
authorities as may be necessary by virtue of the business and operations of the
Company to enable the Selling Holders of Registrable Securities to consummate
the disposition of such Registrable Securities.
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4.12. CUSIP Numbers. Provide a CUSIP number for each class of
Registrable Securities prior to the effective date of the first registration
statement including such class of Registrable Securities.
4.13. Actions to Expedite Disposition. Take such other actions as
are reasonably required in order to expedite or facilitate the disposition of
Registrable Securities included in each such registration.
Section 5. Selling Holders' Obligations. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Agreement with respect to the Registrable Securities of any Selling Holder of
Registrable Securities that such Selling Holder shall:
5.1. Information Relating to Selling Holders. Furnish to the
Company such information regarding such Selling Holder, the number of the
Registrable Securities owned by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Selling
Holder's Registrable Securities and requested by the Company, and to cooperate
with the Company in preparing such registration.
5.2. Agreement with Underwriters. Agree to sell its Registrable
Securities to the underwriters at the same price and on substantially the same
terms and conditions as the Company or the other Persons on whose behalf the
registration statement was being filed have agreed to sell their securities of
the same class, and to execute the underwriting agreement agreed to by the
Majority Selling Holders (in the case of a registration under Section 2) or the
Company and the Majority Selling Holders (in the case of a registration under
Section 3).
Section 6. Expenses of Registration. Expenses in connection with
registrations pursuant to this Agreement shall be allocated and paid as follows:
6.1. Expenses of Demand Registration. With respect to each
Demand Registration, the Company shall bear and pay all expenses incurred in
connection with any registration, filing, or qualification of Registrable
Securities with respect to such Demand Registration for each Selling Holder
(which right shall be assigned to any Person to whom Registrable Securities are
Transferred as permitted by Section 8), including all registration, filing and
National Association of Securities Dealers, Inc. fees, all fees and expenses of
complying with securities or Blue Sky laws, all word processing, duplicating
and printing expenses, messenger and delivery expenses, the reasonable fees and
disbursements of counsel for the Company, and of the Company's independent
public accountants, including the expenses of "cold comfort" letters required
by or incident to such performance and compliance, and the reasonable fees and
disbursements of one firm of counsel for the Selling Holders of Registrable
Securities (selected by Demanding Holders owning a majority of the Registrable
Securities owned by Demanding Holders to be included in a Demand Registration)
(the "Registration Expenses"), but excluding transfer taxes and underwriting
discounts and commissions relating to Registrable Securities; provided,
however,
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that the Company shall not be required to pay for any expenses of any
registration proceeding (in which case all Selling Holders shall bear such
expenses pro rata) that is begun pursuant to Section 2 if the registration is
subsequently withdrawn at the request of the Majority Selling Holders unless
either (i) Holders whose Registrable Securities constitute a majority of the
Registrable Securities then outstanding agree that such withdrawn registration
shall constitute one of the demand registrations under Section 2 hereof or (ii)
the offering pursuant to such Demand Registration is terminated prior to
closing for reasons not within the reasonable control of the Selling
Shareholders.
6.2. Piggyback Registration Expenses. The Company shall bear and
pay all Registration Expenses incurred in connection with any Piggyback
Registrations pursuant to Section 3 for each Selling Holder (which right shall
be Transferred to any Person to whom Registrable Securities are Transferred as
permitted by Section 8), but excluding transfer taxes and underwriting
discounts and commissions relating to Registrable Securities.
6.3. Failure to Pay Expenses. Any failure of the Company to pay
any Registration Expenses as required by this Section 6 shall not relieve the
Company of its obligations under this Agreement.
Section 7. Indemnification; Contribution. If any Registrable
Securities are included in a registration statement under this Agreement:
7.1. Indemnification by the Company. To the extent permitted by
applicable law, the Company shall indemnify and hold harmless each Selling
Holder, each Person, if any, who controls such Selling Holder within the
meaning of the Securities Act, and each officer, director, partner, and
employee of such Selling Holder and such controlling Person, against any and
all losses, claims, damages, liabilities and expenses (joint or several),
including attorneys' fees and disbursements and expenses of investigation,
incurred by such party pursuant to any actual or threatened action, suit,
proceeding or investigation, or to which any of the foregoing Persons may
become subject under the Securities Act, the Exchange Act or other federal or
state laws, insofar as such losses, claims, damages, liabilities and expenses
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein, or any amendments
or supplements thereto;
(ii) The omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the
statements therein not misleading; or
(iii) Any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any applicable state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or
any applicable state securities law; provided, however, that
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the indemnification required by this Section 7.1 shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or expense if
such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any
such case for any such loss, claim, damage, liability or expense to the extent
that it arises out of or is based upon a Violation which occurs in reliance
upon and in conformity with written information furnished to the Company by the
indemnified party expressly for use in connection with such registration;
provided, further, that the indemnity agreement contained in this Section 7.1
shall not apply to any underwriter to the extent that any such loss is based on
or arises out of an untrue statement or alleged untrue statement of a material
fact, or an omission or alleged omission to state a material fact, contained in
or omitted from any preliminary prospectus if the final prospectus shall
correct such untrue statement or alleged untrue statement, or such omission or
alleged omission, and a copy of the final prospectus has not been sent or given
to such person at or prior to the confirmation of sale to such person if such
underwriter was under an obligation to deliver such final prospectus and failed
to do so. The Company shall also indemnify underwriters, selling brokers,
dealer managers and similar securities industry professionals participating in
the distribution, their officers, directors, agents and employees and each
person who controls such persons (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Selling Holders.
7.2. Indemnification by Selling Holders. To the extent permitted
by applicable law, each Selling Holder shall indemnify and hold harmless the
Company, each of its directors, each of its officers who shall have signed the
registration statement, each Person, if any, who controls the Company within
the meaning of the Securities Act, each other Selling Holder, any controlling
Person of such other Selling Holder and each officer, director, Partner, and
employee of such other Selling Holder and such controlling Person, against any
and all losses, claims, damages, liabilities and expenses (joint and several),
including attorneys' fees and disbursements and expenses of investigation,
incurred by such party pursuant to any actual or threatened action, suit,
proceeding or investigation, or to which any of the foregoing Persons may
otherwise become subject under the Securities Act, the Exchange Act or other
federal or state laws, insofar as such losses, claims, damages, liabilities and
expenses arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Selling Holder
expressly for use in connection with such registration; provided, however, that
(x) the indemnification required by this Section 7.2 shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or expense if
settlement is effected without the consent of the relevant Selling Holder of
Registrable Securities, which consent shall not be unreasonably withheld, and
(y) in no event shall the amount of any indemnity under this Section 7.2 exceed
the gross proceeds from the applicable offering received by such Selling
Holder.
7.3. Notice of Claims. Promptly after receipt by an indemnified
party under this Section 7 of notice of the commencement of any action, suit,
proceeding, investigation or threat thereof made in writing for which such
indemnified party may make a claim under this Section 7,
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such indemnified party shall deliver to the indemnifying party a written notice
of the commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with
the fees and disbursements and expenses to be paid by the indemnifying party,
if representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by
such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time following the commencement of any
such action, if prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party under this
Section 7 but shall not relieve the indemnifying party of any liability that it
may have to any indemnified party otherwise than pursuant to this Section 7.
Any fees and expenses incurred by the indemnified party (including any fees and
expenses incurred in connection with investigating or preparing to defend such
action or proceeding) shall be paid to the indemnified party, as incurred,
within 30 days of written notice thereof to the indemnifying party, subject to
repayment in the event that it is ultimately determined that the indemnified
party is not entitled to indemnification hereunder. Any such indemnified party
shall have the right to employ separate counsel in any such action, claim or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be the expenses of such indemnified party unless (i) the
indemnifying party has agreed to pay such fees and expenses or (ii) the
indemnifying party shall have failed to promptly assume the defense of such
action, claim or proceeding or (iii) the named parties to any such action,
claim or proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, and such indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it which are different from or in addition to those available to
the indemnifying party and that the assertion of such defenses would create a
conflict of interest such that counsel employed by the indemnifying party could
not faithfully represent the indemnified party (in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels). No indemnifying party shall be liable to an
indemnified party for any settlement of any action, proceeding or claim without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld.
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7.4. Contributions. If the indemnification required by this
Section 7 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to in this Section 7:
(i) The indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any Violation has been committed by, or relates to
information supplied by, such indemnifying party or indemnified parties, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such Violation. The amount paid or payable by a party as
a result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in Section 7.4(i). 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.
7.5. Full Indemnification. If indemnification is available under
this Section 7, the indemnifying parties shall indemnify each indemnified party
to the full extent provided in this Section 7 without regard to the relative
fault of such indemnifying party or indemnified party or any other equitable
consideration referred to in Section 7.4.
7.6. Survival of Indemnification. The obligations of the Company
and the Selling Holders of Registrable Securities under this Section 7 shall
survive the completion of any offering of Registrable Securities pursuant to a
registration statement under this Agreement, and otherwise.
Section 8. Transfer of Registration Rights. All rights of a Holder
with respect to Registrable Securities pursuant to this Agreement may be
Transferred by such Holder to any Person in connection with the Transfer of
Registrable Securities to such Person, in all cases, if (x) any such Transferee
that is not a party to this Agreement shall have executed and delivered to the
Secretary of the Company a properly completed agreement substantially in the
form of Exhibit A, and (y) the Transferor shall have delivered to the Secretary
of the Company written notification of such Transfer setting forth the name of
the Transferor, name and address of the Transferee, and the number of
Registrable Securities which shall have been so Transferred.
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Section 9. Holdback. Each Holder entitled pursuant to this Agreement
to have Registrable Securities included in a registration statement prepared
pursuant to this Agreement, if so requested by the Underwriters' Representative
or Agent in connection with an offering of any Registrable Securities, shall not
effect any public sale or distribution of shares of Common Stock or any
securities convertible into or exchangeable or exercisable for shares of Common
Stock, including a sale pursuant to Rule 144 or Rule 144A under the Securities
Act (except as part of such underwritten or agented registration), during the
five day period prior to, and during the 90- day period beginning on, the date
such registration statement is declared effective under the Securities Act by
the Commission, provided that such Holder is timely notified of such effective
date in writing by the Company or such Underwriter's Representative or Agent. In
order to enforce the foregoing covenant, the Company shall be entitled to impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder until the end of such period.
Section 10. Covenants Of the Company. The Company hereby agrees and
covenants as follows:
10.1. Exchange Act Reports. The Company shall file as and when
applicable, on a timely basis, all reports required to be filed by it under the
Exchange Act. If the Company is not required to file reports Pursuant to the
Exchange Act, upon the request of any Holder of Registrable Securities, the
Company shall make publicly available the information specified in subparagraph
(c)(2) of Rule 144 of the Securities Act, and take such further action as may
be reasonably required from time to time and as may be within the reasonable
control of the Company, to enable the Holders to Transfer Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 under the Securities Act or any similar
rule or regulation hereafter adopted by the Commission.
10.2. Holdbacks; Future Agreements. (i) The Company shall not,
and shall not permit its majority-owned subsidiaries to, effect any public sale
or distribution of any shares of Common Stock or any securities convertible
into or exchangeable or exercisable for shares of Common Stock, during the five
business days prior to, and during the 90-day period beginning on, the
commencement of a public distribution of the Registrable Securities pursuant to
any registration statement prepared pursuant to this Agreement (other than by
the Company pursuant to such registration if the registration is pursuant to
Section 3). The Company shall not effect any registration of its securities
(other than on Form S-4, Form S-8, or any successor forms to such forms or
pursuant to such other registration rights agreements as may be approved in
writing by the Majority Selling Holders), or effect any public or private sale
or distribution of any of its securities, including a sale pursuant to
Regulation D under the Securities Act, whether on its own behalf or at the
request of any holder or holders of such securities, from the date of a request
for a Demand Registration pursuant to Section 2.1 until the earlier of (x) 90
days following the date as of which all securities covered by such Demand
Registration statement shall have been Transferred and (y) 180 days following
the effective date of such Demand Registration statement, unless the Company
shall have previously notified in writing all Selling Holders of
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the Company's desire to do so, and Selling Holders owning a majority of the
Registrable Securities or the Underwriters' Representative, if any, shall have
consented thereto in writing.
(ii) Any agreement entered into after the date of this Agreement
pursuant to which the Company or any of its majority-owned subsidiaries issues
or agrees to issue any privately placed securities similar to any issue of the
Registrable Securities (other than (x) shares of Common Stock pursuant to a
stock incentive, stock option, stock bonus, stock purchase or other employee
benefit plan of the Company approved by its Board and (y) securities issued to
Persons in exchange for ownership interests in any Person in connection with a
business combination in which the Company or any of its majority-owned
subsidiaries is a party) and pursuant to which the holders of such securities
are granted registration rights shall contain a provision whereby such holders
agree not to effect any public sale or distribution of any such securities
during the periods described in the first sentence of Section 10.2(i), in each
case including a sale pursuant to Rule 144 or Rule 144A under the Securities
Act (unless such Person is prevented by applicable statute or regulation from
entering into such an agreement).
10.3. Merger, Consolidation, Reorganization, Etc. The Company
shall not, directly or indirectly, (x) enter into any merger, consolidation or
reorganization in which the Company shall not be the surviving corporation or
(y) Transfer or agree to Transfer all or substantially all the Company's
assets, unless prior to such merger, consolidation, reorganization or asset
Transfer, the surviving corporation or the Transferee, respectively, shall have
agreed in writing to assume the obligations of the Company under this
Agreement, and for that purpose references hereunder to "Registrable
Securities" shall be deemed to include any securities which the Holders of
Registrable Securities would be entitled to receive in exchange for Registrable
Securities pursuant to any such merger, consolidation or reorganization.
10.4. Limitation on Grant of Registration Rights to Others. The
Company shall not grant to any Person (other than a Holder of Registrable
Securities) any registration rights with respect to securities of the Company,
or enter into any agreement, that would entitle the holders thereof to have
securities owned by them included in a Demand Registration under this Agreement
unless such registration rights provide that the Majority Selling Holders or
the Underwriters' Representative may exclude such securities from such Demand
Registration or limit the amount of such securities to be included therein if
such Majority Selling Holders or Underwriters' Representative determine in good
faith that the inclusion of such securities in such Demand Registration would
adversely affect in any way the intended disposition of the Registrable
Securities to be included therein (including, without limitation, the price or
timing of such disposition).
Section 11. Amendment, Modification and Waivers; Further Assurances.
(i) This Agreement may be amended with the consent of the
Company and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company
shall have obtained the written consent to such
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amendment, action or omission to act of Holders of a majority of the
Registrable Securities then outstanding.
(ii) No waiver of any terms or conditions of this Agreement
shall operate as a waiver of any other breach of such terms and conditions or
any other term or condition, nor shall any failure to enforce any provision
hereof operate as a waiver of such provision or of any other provision hereof.
No written waiver hereunder, unless it by its own terms explicitly provides to
the contrary, shall be construed to effect a continuing waiver of the
provisions being waived and no such waiver in any instance shall constitute a
waiver in any other instance or for any other purpose or impair the right of
the party against whom such waiver is claimed in all other instances or for all
other purposes to require full compliance with such provision.
(iii) Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party
hereto may reasonably require in order to effectuate the terms and purposes of
this Agreement.
12. Assignment; Benefit. This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, assigns, executors, administrators or
successors; provided, however, that except as specifically provided herein with
respect to certain matters, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned or delegated by the
Company without the prior written consent of Holders of a majority of the
Registrable Securities outstanding on the date as of which such delegation or
assignment is to become effective. A Holder may Transfer its rights hereunder
to a successor in interest to the Registrable Securities owned by such assignor
only as permitted by Section 8.
Section 13. Miscellaneous.
13.1. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
13.2. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or delivered
when delivered personally or when sent by registered or certified mail or by
private courier addressed as follows:
If to the Company, to:
New Envoy, Inc.
Two Lakeview Place
15 Century Boulevard, Suite 600
Nashville, Tennessee 37214
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Attention: Fred C. Goad, Jr.
With a copy to:
Bass, Berry & Sims
2700 First American Center
Nashville, Tennessee 37238
Attention: Bob F. Thompson
If to FDC, to:
First Data Corporation
2121 North 117th Avenue
Omaha, Nebraska 68164
Attention: David P. Bailis, Esq.
General Counsel
or to such other address as such party may indicate by a notice delivered to
the other party hereto. With respect to Transferees, all notices or other
communications shall be delivered to the address specified in the relevant
agreement in the form of Exhibit A whereby the Transferee became bound by the
provisions of this Agreement.
13.3. Entire Agreement; Integration. This Agreement supersedes
all prior agreements between or among any of the parties hereto with respect to
the subject matter contained herein and therein, and such agreements embody the
entire understanding among the parties relating to such subject matter.
13.4. Injunctive Relief. Each of the parties hereto acknowledges
that in the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each
of the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court
of competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the
aggrieved party shall not be precluded from seeking or obtaining any other
relief to which it may be entitled.
13.5. Section Headings. Section headings are for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
13.6. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
13.7. Severability. If any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity and enforceability of the remaining provisions of this Agreement,
unless the result thereof would be unreasonable, in which case the parties
hereto shall negotiate in good faith as to appropriate amendments hereto.
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13.8. Filing. A copy of this Agreement and of all amendments
hereto shall be filed at the principal executive office of the Company with the
corporate recorder of the Company.
13.9. Termination. This Agreement may be terminated at any time
by a written instrument signed by the parties hereto. Unless sooner terminated
in accordance with the preceding sentence, this Agreement (other than Section 7
hereof) shall terminate in its entirety on such date as there shall be no
Registrable Securities outstanding.
13.10. Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to
recover reasonable attorneys' fees (including any fees incurred in any appeal)
in addition to its costs and expenses and any other available remedy.
13.11. No Third Party Beneficiaries. Nothing herein expressed or
implied is intended to confer upon any person, other than the parties hereto or
their respective permitted assigns, successors, heirs and legal
representatives, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first written above.
NEW ENVOY, INC.
By: /s/ Fred C. Goad, Jr.
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Name: Fred C. Goad, Jr.
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Title: President
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FIRST DATA CORPORATION
By: /s/ John S. Zieser
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Name: John S. Zieser
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Title: Assistant Secretary
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