EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
February 14, 1997
WCAS Capital Partners, II, L.P.
c/o Walsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, New York 10022
Dear Sirs:
This will confirm that, in consideration of your commitment to purchase
an aggregate 1,700,000 shares (the "Shares") of Common Stock (as defined
herein), of MedE America Corporation, a Delaware corporation (the "Company"),
pursuant to the Note and Share Purchase Agreement, dated the date hereof (the
"Purchase Agreement"), between the Company and you ( the "Purchaser"), and as an
inducement to you to consummate the transactions contemplated by the Purchase
Agreement, the Company hereby covenants and agrees with you, and with each
subsequent holder of Restricted Stock (as such term is defined herein), as
follows:
1. Certain Definitions. As used herein, the following terms shall have
the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
other Federal agency at the tie administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.01 par value, of the
Company, as constituted as of the date of this Agreement.
"Registration Expenses" shall mean the expenses so described in Section
8 hereof.
"Restricted Stock" shall mean the Shares and any shares of capital
stock of the Company issued in respect of such securities by way of stock
split, stock dividend, combination or reclassification, or through merger,
consolidation, reorganization or recapitalization.
"Securities Act" shall mean the Securities Act of 1933 or any similar
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 8
hereof.
2. Restrictive Legend. Each certificate representing Restricted Stock
and, except as otherwise provided in Section 3 hereof, each certificate issued
upon exchange or transfer of any such securities shall be stamped or otherwise
imprinted with a legend substantially in the following form:
"THE SECURTITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 NOR UNDDER APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN
REGISTERED UNDER SUCH LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
Restricted Stock (other than under the circumstances described in Section 4,
Section 5 or Section 5 hereof), the holder thereof shall give written notice to
the Company or its transfer agent of its intention to effect such transfer. Each
such notice shall describe the manner of the proposed transfer and, if requested
by the Company, except as provided below, shall be accompanied by an opinion of
counsel reasonably satisfactory to the Company, to the effect that the proposed
transfer may be effected without registration under the Securities Act,
whereupon such holder shall be entitled to transfer such securities in
accordance with the terms of its notice; provided, however, that, if such
transfer is a private sale, such transferee agrees, in a writing delivered to
the Company. To be bound by the terms hereof to the same extent as if an
original party hereto. Such shares may be distributed by the Purchaser to its
partners and may be sold in accordance with Rules 144 or 144A under the
Securities Act without an opinion of counsel; provided that, in the case of a
sale, the Company shall have received such information as the Company may
request to provide it with reasonable assurance that the provisions of Rules 144
or 144A have been satisfied. Each certificate for shares of Restricted Stock
transferred as above provided shall bear the legend set forth in Section 2,
except that such certificate shall not hear such legend if (i) such transfer is
in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or (ii) the opinion
of counsel referred to above is to the further effect that the transferees and
any subsequent transferee (other than an affiliate of the Company) would be
entitled to transfer such securities in a public sale without registration under
the Securities Act.
4. Required Registration. (a) At any time the holders of a majority of
the outstanding Restricted Stock may
2
request the Company to register under the Securities Act all or any portion of
the shares of Restricted Stock held by such holders for sale in the manner
specified in such notice. Notwithstanding anything to the contrary contained
herein, non request may be made under this Section 4 within 180 days after the
effective date of a registration statement filed by the Company covering a firm
commitment underwritten public offering in which the holders of Restricted Stock
shall have been entitled to join pursuant to this Section 4, Section 5 or
Section 6 hereof and in which there shall have been effectively registered all
shares of Restricted Stock as to which registration shall have been so
requested.
(b) Promptly following receipt of any notice under this Section 4 from
holders of Restricted Stock, the Company shall immediately notify any holders of
Restricted Stock from whom notice has not been received and shall use its best
efforts to register under the Securities Act for public sale in accordance with
the method of disposition specified in such notice from requesting holders the
number of shares of Restricted Stock specified in such notice (and in any notice
received from other holders within 20 days after receipt of such notice from the
Company). If such method of disposition shall be an underwritten public
offering, the Company may designate the managing underwriter of such offering,
subject to the approval of a majority in interest of the selling holders of
Restricted Stock, which be obligated to register Restricted Stock pursuant to
this Section 4, on one occasion only; provided that such obligation shall be
deemed satisfied only when a registration statement covering all shares of
Restricted Stock specified in the notices received as aforesaid, for sale in
accordance with the method of disposition specified by the requesting holders,
shall have become effective and, if such method of disposition is a firm
commitment underwritten public offering, all such shares shall have been sold
pursuant thereto.
(c) The Company shall be entitled to include in any registration
statement referred to in this Section 4, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account r for the account of any stockholder of
the Company having registration rights with respect to such stock, except as and
to the extent that, in the opinion of the managing underwriter (if such method
of disposition shall be an underwritten public offering), such inclusion would
materially adversely affect the marketing of the Restricted Stock to be sold.
Except as provided in this paragraph (c), the Company will not file with the
Commission any other registration statement with respect to its Common Stock
(other than a registration
3
statement on Form S-4 or S-8), whether for its own account or that of other
security holders, from the date of receipt of a notice from requesting holders
pursuant to this Section 4 until the completion of the period of distribution of
the registration contemplated thereby.
(d) The Company may postpone the filing of any registration statement
otherwise required to be prepared and filed by it under this Section 4 if, at
the time it receives a request from the holders of Restricted Stock, the Board
of Directors of the Company determines in its good faith judgment that such
registration would adversely interfere with any material financing, acquisition,
corporate reorganization or other material corporate transaction involving the
Company that is pending or imminent at the time to the material detriment of the
interests of the Company and its stockholders; provided, however, that, if the
Board of Directors does not make a determination to utilize this right within 30
days of the date of receipt of such request, this right shall be deemed waived
with respect to such request and the Company may exercise its right to postpone
a registration statement to be filed under this Section 4 only once in any
period of twelve consecutive months. The postponement will be for the minimum
period reasonably required but in any event such postponement shall not exceed
90 days. The Company will promptly give the holders of Restricted Stock written
notice of any such postponement and will use all reasonable best efforts to
minimize the length of the postponement. If the Company shall so postpone the
filing of a registration statement, the holders of Restricted Stock shall have
the right to withdraw any request ynder this Section 4 by giving written notice
of such postponement and, in the event of such withdrawal, the request that was
withdrawn shall not be deemed to have been made.
5. Form S-3 Registration
(a) If, at any time after the Company becomes eligible to register
securities on Form S- 3, the Company shall receive from any holder or holders of
Restricted Stock, a written request or requests that the Company effect a
registration on Form S-3 with respect to Restricted Stock owned by such holder
or holders, the reasonably anticipated aggregate price to the public of which
would exceed $1,000,000, the Company (i) shall promptly give written notice of
the proposed registration to all other holders of Restricted Stock and (ii)
shall as soon as practicable, effect such registration (including, without
limitation, the execution of an undertaking to file post-effective amendments,
to approve appropriate qualifications under applicable blue sky or other state
securities laws and to comply with applicable regulations issued under the
Securities Act and any other government
4
requirements or regulations as would permit or facilitate the requested sale and
distribution) of all or such portion of such holder's and holders' Restricted
Stock as are specified in such requrest, together with all or such portion of
the Restricted Stock of any holder or holders joining in such request as are
specified in a written request given within 20 days after receipt of such
written notice from the Company; provided that the Company shall not be
obligated to effect any such registration pursuant to this Section 5 more than
once in any 180-day period.
6. Incidental Registration. If the Company at any time proposes to
register any of its equity securities under the Securities Act for sale to the
public, whether for its own account or for the account of other security holders
or both (except with respect to registration statements on Form S-4 or S-8 or
another form not available for registering Restricted Stock for sale to the
public), each such time it will give written notice to all holders of Restricted
Stock of its intention so to do. Upon the written request of any such holder,
given within 20 days after any such notice, to register any of its Restricted
Stock (which request shall state the intended method of disposition thereof),
the Company will use its best efforts to cause the Restricted Stock as to which
registration shall have been so requested to be included in the securities to be
covered by the registration statement proposed to be filed by the Company, all
to the extent requisite to permit the sale or other disposition by the holder
(in accordance with its written request) of such Restricted Stock. In the event
that any registration pursuant to this Section 6 shall be, in whole or in part,
an underwritten public offering of Common Stock, any request by a holder
pursuant to this Section 6 to register Restricted Stock shall specify that
either (i) such Restricted Stock is to be included in the underwriting on the
same terms and conditions as the shares of Common Stock otherwise being sold
through underwriters undet such registration or (ii) such Restricted Stock is to
be sold in the open market without any underwriting. The number of shares of
Restricted Stock to be included in such an underwriting may be reduced (pro rata
among the holders if Restricted Stock requesting that their shares of Restricted
Stock be registered pursuant to this Section 6, based upon the number of share
of stock which they desire to include in such registration), if and to the
extent that the managing underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the securities ti be sold by the
Company; provided, however, that, if any shares are to be included in such
underwriting for the account of any person other than the Company or the holders
of Restricted Stock, the number of shares to be included by any such person
shall be reduced first. Notwithstanding anything to the contrary contained in
this Section 6, in the event that there is a firm commitment underwritten
offering
5
of securities of the Company pursuant to a registration covering Restricted
Stock and a selling holder of Restricted Stock does not elect to sell his
Restricted Stock to the underwriters of the Company's securities in connection
with such offering, such holder shall refrain from selling such Restricted Stock
so registered pursuant to this section 6 during the period of distribution of
the Company's securities by such underwriters and the period in which the
underwriting syndicate participates in the after market; provided, however, that
such holder shall, in any event, be entitled to sell its Restricted Stock in
connection with such registration commencing on the 90th day after the effective
date of such registration statement.
7. Registration Procedures. If and whenever the Company is
required by the provisions of Section 4, Section 5 or Section 6 hereof to use
its best efforts to effect the registration of any shares of Restricted Stock
under the Securities Act the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering
pursuant to Section 4 hereof, shall be on Form S-1 or other form
of general applicability satisfactory to the managing underwriter
selected as therein provided) with respect to such securities and
use its best efforts to cause such registration statement to
become and remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided):
( b) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective for the period specified in
paragraph (a) above and as comply with the provisions of the
Securities Act with respect to the disposition of all Restricted
Stock covered by such registration statement in accordance with
the sellers' intended method of disposition set forth in such
registration statement for such period;
(c) furnish to each seller and to each underwriter such
number of copies of the registration statement and the prospectus
included therein (including each preliminary prospectus) as such
persons my reasonably request in order to facilitate the public
sale or other disposition of the Restricted Stock covered by such
registration statement;
(d) use it best efforts to register or qualify the
Restricted Stock covered by such registration statement under the
securities or blue sky laws of such jurisdictions
6
as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter shall
reasonably request;
(e) immediately notify each seller under such registration
statement and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the
prospectus contained in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances then existing:
(f) use its best efforts (if the offering is underwritten to
furnish, at the request of any seller, on the date that
Restricted Stock is delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of
counsel representing the Company for the purposes of such
registration, addressed to the underwriters and to such seller,
stating that such registration statement has become effective
under the Securities Act and that (A) to the best knowledge of
such counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities
Act, (B) the registration statement, the related prospectus, and
each amendment or supplement thereof, comply ad to form in all
material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder
(except that such counsel need not express any opinion as to
financial statements or other financial data contained herein)
and (C) to such other effects as may reasonably be requested by
counsel, for the underwriters or by such selller or its counsel,
based on their customary practices, and (ii) a letter dated such
date from the independent public accountants retained by the
Company, addressed to the underwritiers and to such seller,
stating that they are independent public accountants within the
meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of the Company included in
the registration statement or the related prospectus, or any
amendment or supplement thereof, comply as to form in all
materials respects with the applicable accounting requirements of
the Securities Act and such letter shall additionally cover such
other financial matters (including information as to the period
ending no more than five business days prior to the data of such
letter) with respect to the registration in respect of which such
letter is being
7
given as such underwriters or such seller may reasonably request,
based on their customary practices:
(g) Make available for inspection by each seller, any
underwriter participanting in any distribution pursuant to such
registration statement, and any attorney, accountant or other
agent retained by such seller or underwriter, all financial and
other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in
connection with such registration statement: and
(h) use its best efforts to list the shares of Restricted
Stock so registered upon the principal national securities
exchange, if any, upon which the outstanding Common Stock is
listed at the time of such registration.
For purposes of paragraphs (a) and (b) above and of Section
4 (d) hereof, the period of distribution of Restricted Stock in a firm
commitment underwritten public offering shall extend until each underwriter has
completed the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall extend until
the earlier of the sale of all Restricted Stock covered thereby abd one year
after the effective date thereof.
In connection with each registration hereunder, the selling
holders of Restricted Stock will furnish to the Company in writing such
information with respect to themselves and the proposed distribution by them as
shall be reasonably necessary in order to assure compliance with Federal and
applicable state securities laws. No such selling holder of Restricted Stock
shall be required to make any representation in any underwriting agreement other
than a representation as to the ownership of the shares to be registered by such
selling holder in the offering.
In connection eith each registration pursuant to Sections 4,
5 and 6 hereof covering an underwritten public offering, the Company agrees to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between major
underwriters and companies of the Company's size and investment stature;
provided that such agreement shall not contain any such provision applicable to
the Company that is inconsistent with the provisions hereof.
8
8. Expenses. All expenses incurred by the Company in complying with
Sectiond 4, 5 and 6 hereof, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of its counsel and of
independent public accountants for the Company, reasonable fes and disbursements
of one counsel chosen to represent all selling holders of Restricted Stock, fees
of the National Association of Securities Dealers, Inc., transfer taxes, and
fees of transfer agents and registrars, but excluding any Selling Expenses, are
herein called "Registration Expenses." All underwriting discounts and selling
commissions applicable to the sale of Restricted Stock are herein called
"Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant hereto. All Selling Expenses in connection
with any registration statement filed pursuant to Section 4, Section 5 or
Section 6 hereof shall be borne by participating sellers in proportion to the
number of shares sold by each, or by such persons other than the Company (except
to the extent the Company shall be a seller) as they may agree.
9. Indemnification. In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to Section 4, Section 5 or
Section 6 hereof, the Company will indemnify and hold harmless each seller of
such Restricted Stock thereunder and each other person, if any, who controls
such seller or underwriter within the meaning of the Securities Act, against any
and all losses, claims, damages or liabilities, joint or several, to which such
seller or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Section 4, Section 5 or Section 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon 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, and will reimburse each
such seller, each such underwriter and each such controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that the Company will not be liable in any such case if and
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or mission or
9
alleged omission so made in conformity with information furnished by such
seller, such underwriter or such controlling person in writing specifically for
use in such registration statement or prospectus; and provided further, however,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage, or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in (i) any preliminary prospectus if such seller, underwriter or
controlling person failed to send or deliver a copy of the final prospectus
prior to or concurrently with the delivery of written confirmation of the sale
of Restricted Stock and the final prospectus would have completely corrected
such untrue statement or omission or (ii) the prospectus if such untrue
statement or alleged untrue statement ot omission or alleged omission is
completely corrected in an amendment or supplement to the prospectus and if,
having previously been furnished by or on behalf of the Company with copies of
the prospectus, as so amended or supplemented, such seller, underwriter or
controlling person thereafter fails to deliver such prospectus, as so amended or
supplemented, prior to or concurrently with the delivery of written confirmation
of the sale of Restricted Stock to the person asserting such loss, claim,
damage, liability or expense.
In the event of a registration of any of the Restricted Stock under the
Securities Act pursuant to Section 4, Section 5 or Section 6 hereof, each seller
of such Restricted Stock thereunder, severally and not jointly, will indemnify
and hold harmless the Company and each person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, each director of the Company, each underwriter and
each person who controls any underwriter within the meaning of the Securities
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which the Company or such officer or director or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement of any
material fact contained in the registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section 4,
Section 5 or Section 6, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon 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,
and will reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
10
damage, liability or action; provided, however, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in conformity with
information pertaining to such seller furnished in writing to the Company by
such seller specifically for use in such registration statement or prospectus;
and provided further, however, that (x) the liability of each seller hereunder
shall be limited to the proceeds received by such seller from the sale of
Restricted Stock covered by such registration statement and (y) the seller will
not be liable in any such case if and to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in (i) any
preliminary prospectus if the Company, such officer, director or underwriter or
controlling person failed to send or deliver a copy of the final prospectus
prior to or concurrently with the delivery of written confirmation of the sale
of Restricted Stock (or, with respect to the company, shares of Common Stock
included in such registration) and the final prospectus would have completely
corrected such untrue statement or omission or (ii) the prospectus if such
alleged omission is completely corrected in an amendment or supplement to the
prospectus and if the Company, such officer, director, underwriter or
controlling person fails to deliver such prospectus, as so amended or
supplemented, prior to or concurrently with the delivery of written confirmation
of the sale of Restricted Stock (or, the case of the Company, shares of Common
Stock included in such registration) to the person asserting such loss, claim,
damage, liability or expense.
Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under this Section 9. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not undertake the defense thereof, the
indemnifying party shall not be leable to such indemnified party under this
Section 9 for any legal expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that if the defendants in
11
any such action include both the indemnified party and the indemnifying party
and counsel to the indemnified party shall have reasonably concluded that there
may be reasonable defenses available to it which are different from or
additional to those available to the indemnifying party or if the interests of
the indemnified party reasonably may be deemed to conflict with the interests of
the indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
The indemnifying party shall not be liable to indemnify any indemnified
party for any settlement of any such action effected without the indemnifying
party's consent. Furthermore, the indemnifying party shall not, except with the
approval of each indemnified party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to each indemnified party of a release from
all liability in respect to such claim or litigation without any payment or
consideration provided by each such indemnified party.
If the indemnification provided for in this Section 9 is unavailable to
an indemnified party under the first or second paragraphs hereof in respect of
any losses, claims, damages or liabilities referred therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the sellers of Restricted Stock and any other sellers participating in
the registration statement on the other from the sale of shares pursuant to the
registered offering of securities as to which indemnity is sought or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the sellers of Restricted Stock and any other sellers
participating in the registration statement on the other in connection with the
statement or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the sellers of
Restricted Stock and any other sellers participating in the registration
statement on the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses), if any, to the
12
Company bear to the total net proceeds from the offering (before deducting
expenses) to the sellers of the Restricted Stock and any other sellers
participating in the registration statement. The relative fault of the Company
on the hand and of the sellers of Restricted Stock and any other sellers
participating in the registration statement on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the sellers of Restricted
Stock or other sellers participating in the registration statement and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the sellers of Restricted Stock agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the sellers of Restricted Stock were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, no seller of Restricted Stock
shall be required to contribute any amount in excess of the proceeds received by
such seller from the sale of Restricted Stock covered by the registration
statement filed pursuant hereto. 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.
10. Changes in Common Stock. If, any as often as, there are any changes in
the Common Stock by way of stock split, stock dividend, combination r
reclassification, or through merger, consolidation, reorganization or
recapitalization (including any three-party transaction in which the holders of
Common Stock receive securities of the parent or affiliate of a merging or
acquiring entity), or by any other means, appropriate adjustment shall be made
in the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed.
11. Availability of Rule 144. So long as there is Restricted Stock
outstanding, the Company will file the reports required to be filed by it under
the Securities Act and the
13
Securities Exchange Act of 1934 and the rules and regulations adopted by the
Commission thereunder, to the extent required form time to time to enable any
holder of Restricted Stock to sell such Restricted Stock without registration
under the Securities Act within the limitations of the exemption provided by
Rule 144 under the Securities Act or any similar rule or regulation allowing
such holders to sell without registration under the Securities Act, as such Rule
may be amended from time to time; provided; however, that so long as there is
Restricted Stock outstanding, the Company shall continue to file such reports as
outstanding, the Company shall continue to file such reports as may be required
to satisfy the requirements of Rule 144(c) even if not required to do so
pursuant to the Securities Exchange Act of 1934.
12. Subsequent Registration Rights Agreements. After the date hereof, so
long as there is any Restricted Stock outstanding, the Company shall not enter
into any registration rights agreement that would materially adversely affect
the rights of the holder or holders of such Restricted Stock under this
Agreement without the consent of holders of 66 2/3% of the Restricted Stock then
outstanding.
13. Miscellaneous. (a) All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind the inure to
the benefits of the respective successors , assigns and transferees of the
parties hereto whether so expressed or not. Without limiting the generality of
the foregoing, the registration rights conferred herein on the holders of
Restricted Stock shall inure to the benefit of any and all subsequent holders
from time to time of the Restricted Stock.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be sent by telecopier, national overnight courier
service or certified mail, return receipt requested, in each case with postage
prepaid, addressed as follows:
if to the Company, to it at its offices at 90 Merrick Avenue, Suite 501,
East Meadow, New York 11554, attention: President;
if to the Purchaser, to it at the address set forth in the Purchase
Agreement;
if to any subsequent holder of Restricted Stock, to it at such address
as may have been furnished to the Company in writing by such holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder
14
of Restricted Stock) or to the holders of Restricted Stock (in the case of
the Company).
(c) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
(d) This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be modified or amended except
in writing.
(e) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this letter (herein sometimes
called "this Agreement") shall be a binding agreement between the Company and
you.
Very truly yours,
MEDE AMERICA CORPORATION
By /s/ Thomas P. Staudt
------------------
Thomas P. Staudt
President and Chief
Executive Officer
AGREED TO AND ACCEPTED
as of the date first
above written.
WCAS CAPITAL PARTNERS II, L.P.
By WCAS CP II Partners, General
By /s/
------------------------------