EXHIBIT 4.8
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REGISTRATION RIGHTS AGREEMENT
between
MEDE AMERICA CORPORATION
and
MEDIC COMPUTER SYSTEMS, INC.
Dated as of July 17, 1998
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TABLE OF CONTENTS
(Not Part of Agreement)
Page
1. Background....................................................................1
2. Definitions...................................................................1
3. Registration..................................................................5
3.1 Demand Registration...................................................5
(a) Requests......................................................5
(b) Obligation to Effect Registration.............................5
(c) Shelf Registration............................................6
(d) Effective Registration Statement..............................6
(e) Pro Rata Allocation...........................................6
(f) Inclusion of Other Securities in Demand Registration..........6
3.2 Piggyback Registration................................................7
3.3 Registration Procedures...............................................9
3.4 Underwritten Offerings...............................................15
(a) Underwritten Offerings Exclusive.............................15
(b) Underwriting Agreement.......................................15
(c) Selection of Underwriters....................................15
3.5 Lock-Up Agreements...................................................16
3.6 Preparation; Reasonable Investigation................................16
3.7 Other Registrations..................................................17
3.8 Indemnification......................................................17
(a) Indemnification by the Issuer................................17
(b) Indemnification by the Seller................................18
(c) Notices of Claims, etc.......................................18
(d) Other Indemnification........................................19
(e) Other Remedies...............................................20
(f) Officers and Directors.......................................20
3.9 Expenses..............................................................20
4. Miscellaneous................................................................20
4.1 Rule 144; Legended Securities; etc...................................20
4.2 Amendments and Waivers...............................................21
4.4 Successors, Assigns and Transferees..................................21
4.5 Notices..............................................................22
4.6 No Inconsistent Agreements...........................................22
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4.7 Enforcement of Agreement............................................22
4.8 Severability........................................................23
4.9. Headings............................................................23
4.10. Counterparts........................................................23
4.11. Governing Law.......................................................23
4.12 No Third Party Beneficiaries........................................23
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
July 17, 1998, among MEDE AMERICA CORPORATION, a Delaware corporation (the
"Issuer"), and MEDIC COMPUTER SYSTEMS, INC. a North Carolina corporation (the
"Investor").
1. Background. (a) Concurrently with the execution and
delivery of this Agreement, the Investor is receiving a Warrant (the "Warrant")
to purchase an aggregate of 1,250,000 shares (the "Shares") of Common Stock of
the Issuer, pursuant to an Investment Agreement dated the date hereof (the
"Investment Agreement").
(b) This Agreement shall become effective with respect to any
Registrable Securities upon the issuance or sale of Registrable Securities
pursuant to the Warrant, provided that any holder of the Warrant may exercise
its rights hereunder to demand or request registration of Registrable Securities
prior to the exercise of such Warrant. This Agreement shall remain in effect
upon the assignment or transfer of Registrable Securities by the Investor or a
Holder to an Affiliate of the Investor or such Holder or to any successor,
assign or transferee by merger or consolidation or otherwise by operation of
law, in each case pursuant to Section 4.4.
2. Definitions. For purposes of this Agreement, the following
terms have the following respective meanings:
"Additional Shares" means shares of Common Stock acquired by
the Investor other than by the exercise of the Warrant initially issued pursuant
to the Investment Agreement, provided such shares of Common Stock are, at the
time of such acquisition, "restricted securities" as such term is defined in
Rule 144.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly Controlling, Controlled by or under common Control
with such first Person. "Control" means the power to direct or cause the
direction of management or policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise.
Any director, member of management or other employee of the Issuer or any of its
Subsidiaries who would not otherwise be an Affiliate of the Investor shall not
be deemed to be an Affiliate of the Investor.
"Agreement" is defined in the first paragraph of this
Agreement.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
to close.
"Closing Date" means the date hereof.
"Common Stock" means the common stock, par value $.01 per
share, of the Issuer.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations
thereunder which shall be in effect at the time. Any reference to a particular
section thereof shall include a reference to the corresponding section, if any,
of any such successor federal statute, and the rules and regulations thereunder.
"Holder" means any holder of Registrable Securities or the
Warrant, including an Affiliate of the Investor or a Holder (or to any
successor, assign or transferee by merger or consolidation or otherwise by
operation of law) that has received Registrable Securities pursuant to Section
4.4.
"Investment Agreement" is defined in Section 1(a).
"Investor" is defined in the first paragraph of this
Agreement.
"Issuer" is defined in the introduction to this Agreement.
"Majority Holders" means, initially, the Investor, and
subsequent to any transfer, shall mean Holders of a majority of the then
outstanding Registrable Securities.
"NASD" means the National Association of Securities Dealers,
Inc.
"Person" means any natural person, firm, partnership,
association, corporation, company, trust, business trust, governmental entity or
other entity.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement and
all other amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
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"Registrable Securities" means (a) the Shares, (b) the
Additional Shares, (c) any securities issued or issuable with respect to any
Shares or Additional Shares referred to in the foregoing clauses (a) and (b),
(i) upon any conversion or exchange thereof, (ii) by way of stock dividend or
other distribution, stock split or reverse stock split, or (iii) in connection
with a combination of shares, recapitalization, merger, consolidation, exchange
offer or other reorganization. As to any particular Registrable Securities, once
issued such securities shall cease to be Registrable Securities when (A) a
Registration Statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such Registration Statement, (B) such securities
shall have been distributed to the public in reliance upon Rule 144, (C) subject
to the provisions of Sec tion 4.1(b)(ii), such securities shall have been
otherwise transferred, new certificates for such securities not bearing a legend
restricting further transfer shall have been delivered by the Issuer and
subsequent disposition of such securities shall not require registration or
qualification of such securities under the Securities Act or any similar state
law then in force or (D) such securities shall have been acquired by the Issuer.
In determining the number of Registrable Securities outstanding at any time or
whether the Holders of the requisite number of Registrable Securities have taken
any action hereunder and in calculating the number of Registrable Securities for
all other purposes under this Agreement, the Warrant shall be deemed to have
been exercised (to the fullest extent then determinable without a cashless
exercise) and such calculation shall include the number of shares of Common
Stock then deliverable upon the exercise of such Warrant (to the fullest extent
then determinable without a cashless exercise).
"Registration Expenses" All fees and expenses incident to the
performance of or compliance with the provisions of this Agreement, whether or
not any registration statement is filed or becomes effective, including, without
limitation, all (i) registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering, (B) fees and expenses of compliance with state
securities or blue sky laws (including, without limitation, fees and
disbursements of counsel for the underwriter or underwriters in connection with
blue sky qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as provided in Section 3.3(e)), and (C) fees and other expenses
associated with the listing of the Shares and any Additional Shares on the
Nasdaq National Market and any other applicable exchange, (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses), (iii) fees and
disbursements of all independent certified public accountants referred to in
Section 3.3 (including, without limitation, the reasonable expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (iv) the fees and expenses of any "qualified independent
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underwriter" or other independent appraiser participating in an offering
pursuant to Rule 2720 of the NASD Rules of Conduct, (v) fees and expenses of all
attorneys, advisers, appraisers and other persons retained by the Issuer or any
Subsidiary of the Issuer, (vi) the expenses relating to printing, word
processing and distributing all registration statements, underwriting
agreements, securities sales agreements, indentures and any other documents
necessary in order to comply with this Agreement and (vii) the reasonable
out-of-pocket expenses of the Holders of the Registrable Securities being
registered in such registration incurred in connection therewith including,
without limitation, the reasonable fees and disbursements of not more than one
counsel (together with appropriate local counsel) chosen by the Holders of a
majority of the Registrable Securities to be included in such Registration
Statement. "Registration Expenses" shall not include any underwriting discounts
or commissions or any transfer taxes payable in respect of the sale of
Registrable Securities by the Holders thereof.
"Registration Statement" means any registration statement of
the Issuer that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to any such
registration statement, including post-effective amendments, in each case
including the Prospectus, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"Rule 144" means Rule 144 (or any successor provision) under
the Securities Act.
"Rule 145" means Rule 145 (or any successor provision) under
the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations thereunder which
shall be in effect at the time. Any reference to a particular section thereof
shall include a reference to the corresponding section, if any, of any such
successor federal statute, and the rules and regulations thereunder.
"SEC" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or the
Exchange Act.
"Shares" is defined in Section 1(a).
"Special Registration" means the registration of shares of
equity securities and/or options or other rights in respect thereof to be
offered solely to
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directors, members of management, employees, consultants or sales agents,
distributors or similar representatives of the Issuer or its direct or indirect
Subsidiaries, solely on Form S-8 or any successor form.
"Subsidiary" means, with respect to any Person, any
corporation or Person, a majority of the outstanding voting stock or other
equity interests of which is owned, directly or indirectly, by that Person.
"underwritten registration" or "underwritten offering" means a
registration in which securities of the Issuer (including Registrable
Securities) are sold to an underwriter for reoffering to the public.
"Warrant" means the warrant issued pursuant to the Investment
Agreement.
3. Registration.
3.1 Demand Registration.
(a) Requests. Subject to the provisions of Section 3.7, at any
time or from time to time after 180 days following the initial public offering
of the Common Stock, the Majority Holders shall have the right to make written
requests that the Issuer effect up to three registrations under the Securities
Act of all or part of the Registrable Securities of the Holders making such
request, which requests shall specify the intended method of disposition thereof
by such Holders, including whether the registration requested is for an
underwritten offering. The Issuer shall not be required to effect more than
three registrations under this Section 3.1. Nothing in this Agreement shall
prevent any Holder from making a request under this Section 3.1 prior to
exercising the Warrant.
(b) Obligation to Effect Registration. Within 10 days after
receipt by the Issuer of any request for registration pursuant to Section
3.1(a), the Issuer shall promptly give written notice of such requested
registration to all Holders, and there upon will use its best efforts to effect
the registration under the Securities Act of
(i) the Registrable Securities which the Issuer has been so
requested to register pursuant to Section 3.1(a), and
(ii) all other Registrable Securities which the Issuer has
been requested to register by the Holders thereof by written request
given to the Issuer within 10 days after the Issuer has given such
written notice (which request shall
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specify the intended method of disposition of such Registrable
Securities), all to the extent required to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the
Registrable Securities so to be registered.
(c) Shelf Registration. If requested by Holders of a majority
of the Registrable Securities as to which registration has been requested
pursuant to this Section 3.1, and if the Issuer is eligible to file such
Registration Statement on Form S- 3, the Registration Statement covering such
Registrable Securities shall provide for the sale by the Holders thereof of the
Registrable Securities from time to time on a delayed or a continuous basis
under Rule 415 under the Securities Act. If more than one underwritten offering
is requested under any particular shelf registration, each such additional
underwritten offering shall constitute a separate "demand" registration for
purposes of Section 3.1(a).
(d) Effective Registration Statement. A registration requested
pursuant to Section 3.1(a) shall not be deemed to have been effected unless it
is declared effective by the SEC and remains effective for the period specified
in Section 3.3(b). Notwithstanding the preceding sentence, a registration
requested pursuant to Section 3.1(a) that does not become effective after the
Issuer has filed a Registration Statement with respect thereto by reason of the
refusal to proceed of the Holders of Registrable Securities requesting the
registration, or by reason of a request by the Holders of a majority of the
Registrable Securities for which registration is being requested that such
registration be withdrawn, shall be deemed to have been effected by the Issuer
at the request of such Holders.
(e) Pro Rata Allocation. If the Holders of a majority of the
Registrable Securities for which registration is being requested pursuant to
Section 3.1(a) deter mine, based on consultation with the managing underwriters
or, in an offering which is not underwritten, with an investment banker, that
the number of securities to be sold in any such offering should be limited due
to market conditions or otherwise, Holders of Registrable Securities proposing
to sell their securities in such registration shall share pro rata in the number
of securities being offered (as determined by the Holders holding a majority of
the Registrable Securities for which registration is being re quested in
consultation with the managing underwriters or investment banker, as the case
may be) and registered for their account, such sharing to be based on the number
of Registrable Securities as to which registration was requested by such
Holders.
(f) Inclusion of Other Securities in Demand Registration.
(i) The Issuer may, subject to the remainder of this Section
3.1(f), elect to include in any Registration Statement made pursuant to Section
3.1(a), authorized
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but unissued shares of Common Stock or shares of Common Stock held as treasury
stock.
(ii) Notwithstanding any other provision of this Section 3(f),
the Issuer shall not register securities (other than Registrable Securities) for
sale for the account of any Person (other than the Issuer and WCAS Capital
Partners II, L.P. to the extent that it exercises its piggyback registration
rights granted by the Issuer as of the date hereof) in any registration
requested pursuant to Section 3.1(a) unless permitted to do so by the written
consent of the Holders holding at least a majority of the Registrable Securities
proposed to be sold in such registration.
(iii) If any Registration Statement made pursuant to Section
3.1(a) involves an underwritten offering and the managing underwriter of such
offering (or, in connection with an offering that is not underwritten, an
investment banker) shall advise the Issuer that, in its view, the number of
securities requested to be included in such registration exceeds the largest
number that can be sold in an orderly manner in such offering within a price
range acceptable to the selling Holders, the Issuer shall include in such
registration.
(A) first, all shares of Common Stock requested to be
included in such registration by the selling Holders as provided in Section
3.1(e); and
(B) second, to the extent that the number of
securities to be registered pursuant to clause (A) is less than the largest
number that can be sold in an orderly manner in such offering within a price
range acceptable to the selling Holders, securities that the Issuer proposes to
register; and
(C) third, to the extent that the number of shares
registered pursuant to clauses (A) and (B) is less than the largest number that
can be sold in an orderly manner in such offering within a price range
acceptable to the selling Holders, the securities requested to be included by
any other holders (if permitted by the Holders or otherwise pursuant to Section
3.1(f)(ii)).
The securities to be included in any such registration pursuant to clause (C)
shall be allocated on a pro rata basis among all holders requesting that
securities be included in such registration pursuant to such clause on the basis
of the number of securities requested to be included by such holders.
3.2 Piggyback Registration. If the Issuer at any time proposes
to register any Common Stock under the Securities Act (other than pursuant to a
Registration Statement relating solely to the sale of securities to participants
in a Issuer
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stock plan, on Form S-4 with respect to any merger, consolidation or
acquisition, pursuant to Section 3.1 or pursuant to a Special Registration),
whether or not for sale for its own account, and the registration form to be
used may be used for the registration of Registrable Securities, it shall each
such time give prompt written notice to all Holders of Registrable Securities of
its intention to do so and, upon the written request of any Holder of
Registrable Securities given to the Issuer within 10 days after the Issuer has
given any such notice (which request shall specify the Registrable Securities
intended to be disposed of by such Holder and the intended method of disposition
thereof), the Issuer will use its best efforts to effect the registration under
the Securities Act of all Registrable Securities which the Issuer has been so
requested to register by the Holders thereof, to the extent required to permit
the disposition (in accordance with the intended methods thereof as aforesaid)
of the Registrable Securities so to be registered, provided that:
(a) if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of
the Registration Statement filed in connection with such registration,
the Issuer shall determine for any reason not to register such
securities, the Issuer may, at its election, give written notice of
such determination to each Holder that was previously notified of such
registration and, thereupon, shall not register any Registrable
Securities in connection with such registration (but shall nevertheless
pay the Registration Expenses in connection therewith), without
prejudice, however, to the rights of any Holders to request that a
registration be effected under Section 3.1; and
(b) if the Issuer shall be advised in writing by the managing
underwriters (or, in connection with an offering which is not
underwritten, by an investment banker) that in their or its opinion the
number of securities requested to be included in such registration
(whether by the Issuer, pursuant to this Section 3.2 or pursuant to any
other rights granted by the Issuer to a holder or holders of its
securities to request or demand such registration or inclusion of any
such securities in any such registration) exceeds the number of such
securities which can be sold in such offering in an orderly manner
within a price range that is acceptable to the Issuer, the Issuer shall
include in such registration:
(i) first, all shares requested to be registered by
WCAS Capital Partners II pursuant to its demand registration rights
granted by the Issuer as of the date hereof; and
(ii) second, all shares of Common Stock that the
Issuer proposes to register for its own account; and
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(iii) third, to the extent that the number of shares
registered pursuant to clauses (i) and (ii) is less than the
largest number that can be sold in an orderly manner in such
offering within a price range acceptable to the Issuer, (x)
the Registrable Securities requested to be included by the
Holders and (y) in the case of a registration initially
requested or demanded by a holder or holders of securities
other than the Registrable Securities (other than WCAS Capital
Partners II), the securities requested or demanded to be
registered by such other holders; and
(iv) fourth, to the extent that the number of shares
registered pursuant to clauses (i), (ii) and (iii) is less
than the largest number that can be sold in an orderly manner
in such offering within a price range acceptable to the
Issuer, the securities requested to be included by any other
holders,
and the Issuer shall so provide in any registration agreement
hereinafter entered into with respect to any of its securities.
The securities to be included in any such registration
pursuant to clause (iii) or (iv) shall be allocated on a pro rata basis among
all holders requesting that securities be included in such registration pursuant
to such clause on the basis of the number of securities requested to be included
by such holders.
No registration effected under this Section 3.2 shall relieve
the Issuer from its obligation to effect registrations upon request under
Section 3.1. The Issuer shall not be obligated to cause any "piggyback"
registration to be underwritten. Nothing in this Agreement shall prevent any
Holder from making a request under this Section 3.2 prior to exercising the
Warrant.
3.3 Registration Procedures. If and whenever the Issuer is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 3.1 and 3.2, the
Issuer shall:
(a) prepare and file with the SEC, as soon as practicable, a
Registration Statement with respect to such securities, make all
required filings with the NASD and use best efforts to cause such
Registration Statement to become effective at the earliest possible
date;
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(b) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith and such other documents as may be necessary to
keep such Registration Statement effective until the earlier of (i) 30
days after the effective date of such Registration Statement (360 days
in the case of a shelf registration pursuant to Section 3.1(c)) or (ii)
the consummation of the disposition by the Holders of all the
Registrable Securities covered by such Registration Statement and
otherwise comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such Registration
Statement;
(c) furnish to counsel (if any) selected by the Holders of a
majority of the Registrable Securities covered by such Registration
Statement and to counsel for the underwriters in any underwritten
offering copies of all documents proposed to be filed with the SEC in
connection with such registration a reasonable time prior to the
proposed filing thereof and give reasonable consideration in good faith
to any comments of such Holders, counsel and underwriters. The Issuer
shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto pursuant to a registration under
Section 3.1(a) if the Holders of a majority of the Registrable
Securities covered by such Registration Statement, their counsel, or
the underwriters, if any, shall reasonably object in writing;
(d) furnish to each seller of Registrable Securities, without
charge, such reasonable number of conformed copies of such Registration
Statement and of each such amendment and supplement thereto (in each
case, including all exhib its (including exhibits incorporated by
reference), financial statements, schedules and all documents
incorporated therein, deemed to be incorporated therein by reference or
filed therewith, except that the Issuer shall not be obligated to
furnish any seller of securities with more than two copies of such
exhibits and documents), such number of copies of the Prospectus
included in such Registration Statement (including each preliminary
prospectus and any summary prospectus) in conformity with the
requirements of the Securities Act, and such other documents, as such
seller may reasonably request in order to facilitate the disposition of
the securities owned by such seller;
(e) use its best efforts to register or qualify and cooperate
with the Holders of Registrable Securities, the underwriters and their
respective counsels in connection with the registration or
qualification (or exemption from such registration or qualification) of
the securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as each seller shall
request; provided, however, that where Registrable Securities
10
are offered other than through an underwritten offering, the Issuer
agrees to cause its counsel to perform blue sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 3.3(e); keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be effective hereunder and do any and all
other acts and things which may be necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
securities owned by such seller, except that the Issuer shall not for
any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified,
subject itself to taxation in any jurisdiction wherein it is not so
subject, or take any action which would subject it to general service
of process in any jurisdiction wherein it is not so subject;
(f) in connection with an underwritten public offering only,
(i) furnish to each seller of Registrable Securities
a signed coun terpart, addressed to the sellers, of an opinion
of counsel for the Issuer experienced in securities law
matters, dated the effective date of the Registration
Statement, and
(ii) if and to the extent permitted by applicable
accounting standards, use its reasonable efforts to furnish to
each seller of Registrable Securities, addressed to them, a
"cold comfort" letter signed by the independent public
accountants who have certified the Issuer's financial
statements included in such Registration Statement, covering
substantially the same matters with respect to such
Registration Statement (and the Prospectus included therein),
and with respect to events subsequent to the date of such
financial statements, as are customarily covered in
accountants' letters delivered to underwriters in underwritten
public offerings of securities and such other matters as the
Investors may reasonable request;
(g) (i) notify each Holder of Registrable Securities subject
to such Registration Statement if such Registration Statement, at the
time it or any amendment thereto became effective, (x) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading upon discovery by the Issuer of such material
misstatement or omission or (y) upon discovery by the Issuer of the
happening of any event as a result of which the Issuer believes there
would be such a material misstatement or omission, and, as promptly as
practicable, prepare and file with the SEC a post-effective amendment
to such
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registration statement and use best efforts to cause such
post-effective amend ment to become effective such that such
registration statement, as so amended, shall not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and (ii) notify each Holder of Registrable Securities
subject to such Registration Statement, at any time when a Prospectus
relating thereto is required to be delivered under the Securities Act,
if the Prospectus in cluded in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading upon discovery by the Issuer of such
material misstatement or omission or upon discovery by the Issuer of
the happening of any event as a result of which the Issuer believes
there would be such a material misstatement or omission, and, as
promptly as is practicable, prepare and furnish to such Holder a
reasonable number of copies of a sup plement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(h) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement of the Issuer complying with the provisions of Section 11(a)
of the Securities Act and Rule 158 promulgated under the Securities Act
(or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable
Securities are sold to an underwriter or to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold
to an underwriter or to underwriters in such an offering, commencing on
the first day of the first fiscal quarter of the Issuer after the
effective date of the relevant Registration Statement, which statements
shall cover said 12-month periods;
(i) promptly notify each Holder of any Registrable Securities
covered by such Registration Statement, their counsel and the
underwriters (i) when such Registration Statement, or any
post-effective amendment to such Registration Statement, shall have
become effective, or any amendment of or supplement to the Prospectus
used in connection therewith shall have been filed, (ii) of any request
by the SEC to amend such Registration Statement or to amend or
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supplement such Prospectus or for additional information, (iii) of the
issuance by the SEC of any stop order suspending the effectiveness of
such Registration Statement or of any order preventing or suspending
the use of any preliminary prospectus or the initiation or threatening
of any proceedings for any of such purposes, (iv) of the suspension of
the qualification of such securities for offering or sale in any
jurisdiction, or of the institution of any proceedings for any of such
purposes and (v) if at any time when a Prospectus is to be required by
the Securities Act to be delivered in connection with the sale of the
Registrable Securities, the representations and warranties of the
Issuer contained in any agreement (including the underwriting agreement
contemplated in Section 3.4(b) below), to the knowledge of the Issuer,
cease to be true and correct in any material respect;
(j) use its best efforts to prevent the issuance of any order
suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
Registrable Securities covered thereby for sale in any jurisdiction,
and, if any such order is issued, to obtain the withdrawal of any such
order at the earliest possible moment;
(k) prior to the effective date of the Registration Statement,
(i) provide the registrar for the Common Stock or such other
Registrable Securities with printed certificates for such securities in
a form eligible for deposit with DTC and (ii) provide a CUSIP number
for such securities;
(l) have the right, if the Board of Directors of the Issuer,
in its good faith judgment, determines that any registration of shares
of Common Stock should not be made or continued because (x) it would
materially interfere with any material financing, acquisition,
corporation reorganization, merger, or other transaction involving the
Issuer or any of its Subsidiaries or (y) it would require the
disclosure of material nonpublic information, which disclosure would
have a material adverse effect on the Issuer's business (each a "Valid
Business Reason"), (i) to postpone filing a Registration Statement
until such Valid Business Reason no longer exists, but in no event for
more than 90 days, and (ii) to cause any Registration Statement that
has already been filed to be withdrawn and its effectiveness terminated
or to postpone amending or supplementing such Registration Statement
until such Valid Business Reason no longer exists, but in no event for
more than 90 days (the "Postponement Period"); provided, however, that
in no event shall the Issuer be permitted to postpone or withdraw a
Registration Statement within 180 days after the expiration of the
Postponement Period; and
13
(m) participate in marketing any Registrable Securities in
connection with the registration of such securities under this
Agreement (including, but not limited to, making available reasonably
necessary personnel and participating in a road show) as would be
customary for public offerings of this nature.
The Issuer may require each Holder of any Registrable
Securities as to which any registration is being effected to furnish to the
Issuer such information regarding such Holder and the distribution of such
securities as the Issuer may from time to time reasonably request in writing and
as shall be required by law in connection therewith. Each such Holder agrees to
furnish promptly to the Issuer all information required to be disclosed in order
to make the information previously furnished to the Issuer by such Holder not
materially misleading.
The Issuer agrees not to file or make any amendment to any
Registration Statement with respect to any Registrable Securities, or any
amendment of or supple ment to the Prospectus used in connection therewith,
which refers to any seller of any securities covered thereby by name, or
otherwise identifies such seller as the holder of any securities of the Issuer,
without the consent of such seller, such consent not to be unreasonably
withheld, except that no such consent shall be required for any disclosure that
is required by law.
By the acquisition of Registrable Securities, each Holder
shall be deemed to have agreed that upon receipt of any notice from the Issuer
pursuant to Sec tion 3.3(g) or (l), such Holder will promptly discontinue such
Holder's disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Holder shall have
received, in the case of clause (i) of Section 3.3(g), notice from the Issuer
that such Registration Statement has been amended, as contemplated by Section
3.3(g); in the case of clause (ii) of Section 3.3(g), copies of the supplemented
or amended Prospectus contemplated by Section 3.3(g); or, in the case of Section
3.3(l), the time period specified has elapsed or such Holder has received notice
from the Issuer that the Postponement Period has been terminated. If so directed
by the Issuer, each Holder will deliver to the Issuer (at the Issuer's expense)
all copies, other than permanent file copies, in such Holder's possession of the
Prospectus covering such Registrable Securities at the time of receipt of such
notice. In the event that the Issuer shall give any such notice, the period
mentioned in Section 3.3(b) shall be extended by the number of days during the
period from and including the date of the giving of such notice to and including
the date when each seller of any Registrable Securities covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Sec tion 3.3(g).
14
3.4 Underwritten Offerings. The provisions of this Section 3.4
do not establish additional registration rights but instead set forth procedures
applicable, in addition to those set forth in Sections 3.1 through 3.3, to any
registration that is an underwritten offering.
(a) Underwritten Offerings Exclusive. Whenever a registration
requested pursuant to Section 3.1 is for an underwritten offering, only
securities that are to be distributed by the underwriters may be included in the
registration.
(b) Underwriting Agreement. If requested by the underwriters
for any underwritten offering by Holders pursuant to a registration requested
under Section 3.1, the Issuer shall enter into an underwriting agreement with
such underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to the Holders of a majority of the
Registrable Securities to be covered by such registration and to the
underwriters and to contain such representations and warranties by the Issuer
and such other terms and provisions as are customarily contained in agreements
of this type, including, but not limited to, indemnities to the effect and to
the extent provided in Section 3.8, provisions for the delivery of officers'
certificates, opinions of counsel and accountants' "cold comfort" letters, and
lock-up arrangements. The Holders of Registrable Securities to be distributed by
such underwriters shall be parties to such underwriting agreement and may, at
their option, require that any or all of the representations and warranties by,
and the agreements on the part of, the Issuer to and for the benefit of such
underwriters be made to and for the benefit of such Holders and that any or all
of the conditions precedent to the obligations of such underwriters under such
underwriting agreement shall also be conditions precedent to the obligations of
such Holders. No such Holder shall be required by the Issuer to make any
representa tions or warranties to, or agreements with, the Issuer or the
underwriters other than as set forth in Section 3.8(d) and representations,
warranties or agreements regarding such Holder and such Holder's intended method
of distribution.
(c) Selection of Underwriters. Whenever a registration
requested pursuant to Section 3.1 is for an underwritten offering, the Issuer
shall have the right to select one or more underwriters to administer the
offering, subject to the consent of the Holders of a majority of the Registrable
Securities to be registered pursuant to such offering, which shall not be
unreasonably withheld. If the Issuer at any time proposes to register any of its
securities under the Securities Act for sale for its own account and such
securities are to be distributed by or through one or more underwriters, the
Issuer shall have the right to select one or more underwriters to administer the
offering, subject, in the event the Registrable Securities to be registered
pursuant to such offering represent at least 10% of the total number of shares
to be so registered (not including any over-allotment options), to the consent
of the Holders of a majority of Registrable
15
Securities to be registered pursuant to such offering, which consent shall not
be unreasonably withheld. In all cases in this Section 3.4(c), at least one of
the underwriters chosen by the Issuer shall be an underwriter of nationally
recognized standing.
3.5 Lock-Up Agreements. If and whenever the Issuer proposes to
register any of its equity securities under the Securities Act, whether or not
for its own account (other than pursuant to a Special Registration), or is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to Section 3.1 or 3.2, each of the
Holders, if required by the managing underwriter in an underwritten offering,
agrees by acquisition of such Registrable Securities not to effect (other than
pursuant to such registration) any public sale or dis tribution, including, but
not limited to, any sale pursuant to Rule 144, of any Regist rable Securities,
any other equity securities of the Issuer or any securities convertible into or
exchangeable or exercisable for any equity securities of the Issuer during the
10 days prior to, and for 90 days (or 180 days in the case of an initial public
offering) after, the effective date of such registration, to the extent timely
notified in writing by the Issuer or the managing underwriter, and the Issuer
agrees to use its best efforts to cause each holder of any equity security, or
of any security convertible into or exchangeable or exercisable for any equity
security, of the Issuer purchased from the Issuer at any time other than in a
public offering to enter into a similar agreement with the Issuer. If and
whenever the Issuer is required to use its best efforts to effect the
registration of any Registrable Securities under the Securities Act pursuant to
Sections 3.1 or 3.2, the Issuer, if required by the managing underwriter in an
underwritten offering, shall not effect (other than pursuant to such
registration or a Special Registration) any public sale or distribution of any
other equity securities of the Issuer or any securities convertible into or
exchangeable or exercisable for any equity securi ties of the Issuer during the
10 days prior to, and for 90 days (or 180 days in the case of an initial public
offering) after, the effective date of such registration, to the extent timely
notified in writing by the managing underwriter. In addition, in such
circumstances, the Issuer shall use its best efforts to cause its directors and
officers and all holders of 5% or more of its equity securities (other than the
Holders) not to effect (other than pursuant to such registration) any public
sale or distribution, including, but not limited to, any sale pursuant to Rule
144, of any equity securities of the Issuer or any securities convertible into
or exchangeable or exercisable for any equity securities of the Issuer during
the 10 days prior to, and for 90 days (or 180 days in the case of an initial
public offering) after, the effective date of such registration, to the extent
timely notified in writing by the managing underwriter
3.6 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each Registration Statement registering
Registrable Securities
16
under the Securities Act, the Issuer shall give the Holders of such Registrable
Securities so to be registered and their underwriters, if any, and their
respective counsel and accountants, the opportunity to participate in the
preparation of such Registration Statement, each Prospectus included therein or
filed with the SEC, and each amendment thereof or supplement thereto, and shall
give each of them such access to all pertinent financial, corporate and other
documents and properties of the Issuer and its Subsidiaries, and such
opportunities to discuss the business of the Issuer with its officers,
directors, employees and the independent public accountants who have issued
audit reports on its financial statements as shall be necessary, in the opinion
of such Holders' and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
3.7 Other Registrations. If and whenever the Issuer is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securi ties Act pursuant to Section 3.1 or 3.2, and if such
registration shall not have been withdrawn or abandoned, the Issuer shall not be
obligated to and shall not file any Registration Statement with respect to any
of its securities (including Registrable Securities) under the Securities Act
(other than a Special Registration), whether of its own accord or at the request
or demand of any holder or holders of such securities, until a period of 90 days
shall have elapsed from the effective date of such previous registration,
provided that the Issuer shall not be prohibited from filing a registration
statement by virtue of this Section 3.7 more than once in a 360 day period.
3.8 Indemnification.
(a) Indemnification by the Issuer. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 3.1 or 3.2, the Issuer shall indemnify and hold harmless the seller of
such securities, its directors, officers, and employees, each other person who
participates as an underwriter, broker or dealer in the offering or sale of such
securities and each other person, if any, who controls such seller or any such
participating person within the meaning of either Sec tion 15 of the Securities
Act or Section 20 of the Exchange Act, against any and all losses, claims,
damages or liabilities, joint or several, to which such seller or any such
director, officer, employee, participating person or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under which
such securities were registered under the Securities Act, any Prospectus or
preliminary prospectus included therein, or any amendment or supplement thereto,
or (ii) any omission or alleged omission to state a material fact required to be
stated in any such Registration Statement, Prospectus, preliminary
17
prospectus, amendment or supplement or necessary to make the statements therein
not misleading; and the Issuer shall reimburse such seller and each such
director, officer, employee, participating person and controlling person for any
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or proceeding
as such expenses are incurred; provided that the Issuer shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or omission made in
any such Registration Statement, Prospectus, preliminary prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished to the Issuer by such seller or participating person expressly for use
in the preparation thereof.
(b) Indemnification by the Seller. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 3.1 or 3.2, each of the prospective sellers of such securities, will
indemnify and hold harmless the Issuer, each director of the Issuer, each
officer of the Issuer who shall sign such Registration Statement, and each other
person, if any, who controls the Issuer or any such participating person within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which the Issuer or any such director, officer, employee,
participating person or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement under which such securities were
registered under the Securities Act, any Prospectus or preliminary prospectus
included therein, or any amendment or supplement thereto, or any omission or
alleged omission to state a material fact with respect to such seller required
to be stated in any such Registration Statement, Prospectus, preliminary
prospectus, amendment or supplement or necessary to make the statements therein
not misleading if such statement or omission was made in reliance upon and in
conformity with written information furnished to the Issuer by such seller
expressly for use in the preparation of any such Registration Statement,
Prospectus, preliminary prospectus, amendment or supplement; provided that the
liability of each such seller shall be in proportion to and limited to the net
amount received by such seller (after deducting any underwriting discount and
expenses) from the sale of Registrable Securities pursuant to such Registration
Statement.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim re ferred to in the preceding paragraphs of this Section 3.8,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party hereunder,
18
give prompt written notice to the latter of the commencement of such action,
provided that the failure of any indemnified party to give notice as provided
therein shall not relieve the indemnifying party of its obligations under the
preceding paragraphs of this Section 3.8 unless the failure to provide prompt
written notice shall cause actual prejudice to the indemnifying party. In case
any such action is brought against an indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall
have the right to retain counsel reasonably satisfactory to such indemnified
party to defend against such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel and the
payment of such fees by the indemnifying party or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them or (iii) the indemnifying party has not retained counsel to defend
such proceeding, in which case (under any of such clauses (i), (ii) or (iii)) it
is understood that (x) the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties and (y) such firm shall be designated in writing by the
Holders of a majority of the Registrable Securities included in such
Registration Statement in the case of parties indemnified pursuant to Section
3.8(a) and by the Issuer in the case of parties indemnified pursuant to Section
3.8(b). No indemnifying party, in the defense of any such claim or litigation,
shall, except with the consent of such indemnified party, which consent shall
not be unreasonably withheld, consent to entry of any judgment or enter into any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such judgment or settlement
includes as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding paragraphs of this Section 3.8 (with appropriate
modifications) shall be given by the Issuer and each seller of Registrable
Securities with respect to any required registration or other qualification of
such Registrable Securities under any federal or state law or regulation of
governmental authority other than the Securities Act.
19
(e) Other Remedies. If for any reason the foregoing indemnity
is unavailable, or is insufficient to hold harmless an indemnified party, other
than by reason of the exceptions provided therein, then the indemnifying party
shall contribute to the amount paid or payable by the 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 on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault 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
Issuer or the Holders of Registrable Securities covered by the Registration
Statement in question and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Issuer and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 3.8 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. 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 of this Section 3.8 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. 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. No party shall be liable for contribution under this Section
3.8(e) except to the extent and under such circumstances as such party would
have been liable to indemnify under this Section 3.8 if such indemnification
were enforceable under applicable law.
(f) Officers and Directors. As used in this Section 3.8, the
terms "officers" and "directors" shall include the partners of Holders which are
partnerships and the members of Holders which are limited liability companies.
3.9 Expenses. The Issuer shall pay all Registration Expenses
in connection with each registration of Registrable Securities pursuant to this
Section 3.
4. Miscellaneous.
4.1 Rule 144; Legended Securities; etc. (a) The Issuer shall
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the
20
rules and regulations adopted by the SEC thereunder (or, if the Issuer is not
required to file such reports, it shall, upon the request of any Holder, make
publicly available such information as necessary to permit sales pursuant to
Rule 144 or Rule 145), and shall take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable such
holder to sell shares of Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144 or
Rule 145. Upon the request of any Holder, the Issuer shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
(b) The Issuer shall issue new certificates for Registrable
Securities without a legend restricting further transfer if (i) such securities
have been sold to the public pursuant to an effective Registration Statement
under the Securities Act (other than Form S-8 if the Holder of such Registrable
Securities is an Affiliate) or Rule 144, or (ii) (x) such issuance is otherwise
permitted under the Securities Act, (y) the Holder of such shares has delivered
to the Issuer an opinion of counsel, which opinion and counsel shall be
reasonably satisfactory to the Issuer, to such effect and (z) the Holder of such
shares expressly requests the issuance of such certificates in writing.
4.2 Amendments and Waivers. This Agreement may be amended,
modified or supplemented, and the Issuer may take any action herein prohibited,
or omit to perform any act herein required to be performed by it, only if the
Issuer shall have obtained the written consent to such amendment, action or
omission to act, of the Holders of at least a majority of the Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders may be given by Holders of at least a
majority of the Registrable Securities being sold by such Holders pursuant to
such Registration Statement; provided, however, that the provisions of this
sentence may not be amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence. No amendment, modification
or dis charge of this Agreement, and no waiver hereunder, shall be valid or
binding unless set forth in writing. Any such waiver shall constitute a waiver
only with respect to the specific matter described in such writing and shall in
no way impair the rights of the party or parties granting such waiver in any
other respect or at any other time.
4.3 [Reserved]
4.4 Successors, Assigns and Transferees. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective
21
permitted successors, assigns and transferees. Any Holder may assign its rights
hereunder to an Affiliate or to other successors, assigns and transferees by
merger or consolidation or otherwise by operation of law of such Holder. This
Agreement shall survive any transfer of Registrable Securities to and shall
inure to the benefit of an Affiliate or such other successors, assigns and
transferees by merger or consolidation or otherwise by operation of law of
Investor or such Holder. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the benefit
of the parties hereto other than the Issuer shall also be for the benefit of and
enforceable by any subsequent Holder of Registrable Securities, subject to the
provisions respecting the minimum numbers or percentages of shares of Regis
trable Securities required in order to be entitled to certain rights, or take
certain actions, contained herein, and subject to the provisions in the second
preceding sentence.
4.5 Notices. Any notice required to be given hereunder shall
be sufficient if in writing, and sent by facsimile transmission (with a
confirmatory copy sent by overnight courier), by courier service (with proof of
service), hand delivery or certified or registered mail (return receipt
requested and first-class postage prepaid), addressed as indicated in Exhibit I.
Any party may give any notice or other communication in connection herewith
using any other means (including, but not limited to, messenger service, telex
or ordinary mail), but no such notice or other communication shall be deemed to
have been duly given unless and until it is actually received by the individual
for whom it is intended.
4.6 No Inconsistent Agreements. The Issuer shall not hereafter
enter into any agreement, or amend any existing agreement, with respect to its
securities if such agreement would be inconsistent with the rights granted to
the Holders by this Agreement.
4.7 Enforcement of Agreement.
(a) The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were
not performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any New
York Court, this being in addition to any other remedy to which they
are entitled at law or in equity.
22
(b) The prevailing party in any judicial action shall be
entitled to receive from the other party reimbursement for the
prevailing party's reasonable attorneys' fees and disbursements, and
court costs.
4.8 Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
4.9. Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
4.10. Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all, of
the parties hereto.
4.11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
its rules of conflict of laws. Each of the Issuer and the Investor hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of New York and of the United States of America
located in the State of New York (the "New York Courts") for any litigation
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto except in
such courts), waives any objection to the laying of venue of any such litigation
in the New York Courts and agrees not to plead or claim in any New York Court
that such litigation brought therein has been brought in an inconvenient forum.
4.12 No Third Party Beneficiaries. Except as provided in
Section 3.8, nothing in this Agreement shall confer any rights upon any person
or entity other than the parties hereto, each such party's respective successors
and permitted assigns.
23
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
MEDE AMERICA CORPORATION
By:
-----------------------------
Name:
Title:
MEDIC COMPUTER SYSTEMS, INC.
By:
-----------------------------
Name:
Title:
24
EXHIBIT I
Designated Addresses for Notices
If to the Issuer: If to the Investor:
Mede America Corporation Medic Computer Systems, Inc.
90 Merrick Avenue 8601 Six Forks Road
Suite 501 Suite 300
East Meadow, New York 11554 Raleigh, North Carolina 27615
Telephone: (516) 542-4500 Telephone: (919) 847-8102
Facsimile: (516) 542-4508 Facsimile: (919) 847-7110
Attention: David M. Goldwin, Esq. Attention: Alan Winchester
General Counsel
With a copy to: With a copy to:
Reboul, MacMurray, Hewitt, Maynard & Kristol Misys plc
45 Rockefeller Plaza Burleigh House
New York, New York 10111 Chapel Oak
Telephone: (212) 841-5700 Salford Priors, England
Facsimile: (212) 841-5725 Worcs WR11 5SH
Attention: Mark J. Tannenbaum, Esq.
Tel: 011 44 1386 871-373
Fax: 011 44 1386 871-045
Attention: Ross Graham
and
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telephone: (212) 909-6000
Facsimile: (212) 909-6836
Attention: Paul H.Wilson,Jr.,Esq.