EXHIBIT 99.2
EXECUTION COPY
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (the
"Agreement"), dated as of March 24, 2003 is by and among Occupational Health +
Rehabilitation Inc (the "Company"), and the parties listed under the heading of
Investors on Schedule A attached hereto (the "Investors").
WHEREAS, the Investors and the Company entered into a Series A
Convertible Preferred Stock Purchase Agreement dated as of November 6, 1996 (the
"Series A Purchase Agreement") pursuant to which the Company issued to the
Investors 1,416,667 shares of Series A Convertible Preferred Stock, par value
$.001 per share, of the Company (the "Series A Preferred Shares"); and
WHEREAS, the Company agreed to grant to the Investors, as an inducement
to enter into the Series A Purchase Agreement, certain rights with respect to
the Series A Preferred Shares as set forth in a Registration Rights Agreement
dated as of November 6, 1996 (the "Prior Agreement");
WHEREAS, the Investors and the Company are, on the date hereof, entering
into a Series A Convertible Stock Repurchase Agreement (the "Repurchase
Agreement") pursuant to which the Company shall repurchase the Series A
Preferred Shares held by the Investors in exchange for consideration that
includes shares of the Company's Common Stock, par value $.001 per share;
WHEREAS, the Investors and the Company have agreed that it is in the
best interest of the Company to amend and restate the Prior Agreement to provide
for certain rights with respect to the shares of Common Stock issued pursuant to
the Repurchase Agreement; and
WHEREAS, pursuant to Section 13(d) of the Prior Agreement, amendments to
the Prior Agreement may be made with the written consent of the Company and the
holders of a majority of the aggregate number of outstanding shares of
Restricted Stock (as defined therein) held of record by the Holders (as defined
therein) or their permitted successors and assigns.
NOW, THEREFORE, in consideration of the premises set forth herein, the
parties hereto hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities Act.
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"Common Stock" shall mean the Common Stock, $.001 par value, of
the Company, as constituted as of the date of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, 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.
"Holder" shall mean the person who is the then record owner of
Restricted Stock.
"Registrable Shares" shall mean the shares of Restricted Stock.
"Registration Expenses" shall mean the expenses so described in
Section 8.
"Restricted Stock" shall mean the shares of Common Stock issued
to the Investors pursuant to the Repurchase Agreement, and any shares of capital
stock received in respect thereof, excluding shares which have been (a)
registered under the Securities Act pursuant to an effective registration
statement filed thereunder and disposed of in accordance with the registration
statement covering them or (b) publicly sold pursuant to Rule 144 under the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, 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.
2. Restrictive Legend.
Each certificate representing the Restricted Stock shall bear a legend
stating in substance:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED [FOR NON U.S. PERSONS ADD: IN THE
UNITED STATES OR TO U.S. PERSONS] WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933 AND
APPLICABLE STATE SECURITIES LAWS, OR THE AVAILABILITY OF AN EXEMPTION
FROM THE REGISTRATION PROVISIONS OF THE SECURITIES ACT OF 1933 AND
APPLICABLE STATE SECURITIES LAWS.
A certificate shall not be required to bear such legend if, in the
opinion of counsel satisfactory to the Company, the securities represented
thereby may be publicly sold without registration under the Securities Act.
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3. Notice of Proposed Transfer.
Prior to any proposed transfer of any Restricted Stock (other than under
the circumstances described in Section 4, 5 or 6), the Holder thereof shall give
written notice to the Company of its intention to effect such transfer. Each
such notice shall describe the manner of the proposed transfer and, if requested
by the Company, shall be accompanied by an opinion of counsel satisfactory to
the Company to the effect that the proposed transfer may be effected without
registration under the Securities Act, whereupon the Holder of such stock shall
be entitled to transfer such stock in accordance with the terms of its notice;
provided, however, that no such opinion of counsel shall be required for a
distribution by a partnership to its partners or a limited liability company to
its members of such stock in respect of such interest. 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 bear 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 transferee 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. The restrictions provided for in this
Section 3 shall not apply to securities which are not required to bear the
legend prescribed by Section 2 in accordance with the provisions of that
Section.
4. Required Registration.
(a) The Holders of Registrable Shares constituting at least
51% of the total shares of Registrable Shares then outstanding may request the
Company to register under the Securities Act all or any portion of the
Registrable Shares held by such requesting Holder or Holders for sale in the
manner specified in such notice, provided that the Registrable Shares for which
registration has been requested shall constitute at least 25% of the total
Registrable Shares originally issued pursuant to the Repurchase Agreement if
such Holder or Holders shall request the registration of less than all
Registrable Shares then held by such Holder or Holders. Notwithstanding anything
to the contrary contained herein, no 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 Registrable Shares shall have been entitled to join pursuant to
Section 5 or 6 and in which there shall have been effectively registered all
Registrable Shares to which registration shall have been requested.
(b) Following receipt of any notice under this Section 4,
the Company shall immediately notify all Holders of Registrable Shares from whom
notice has not been received and shall use its reasonable 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
Registrable Shares specified in such notice (and in all notices received by the
Company from other Holders within 30 days after the giving of such notice by the
Company). If such method of disposition shall be an underwritten public
offering, the Holders of a majority of the Registrable Shares to be sold in such
offering may designate the managing underwriter of
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such offering, subject to the approval of the Company, which approval shall not
be unreasonably withheld or delayed. The Company shall be obligated to register
Registrable Shares pursuant to this Section 4 on two occasions only, provided,
however, that such obligation shall be deemed satisfied only when a registration
statement, which covers all Registrable Shares specified in notices received as
aforesaid and with respect to which the request for registration has not been
withdrawn and provides for sale of such shares 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, 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
adversely affect the marketing of the Registrable Shares to be sold. Except for
registration statements on Form X-0, X-0 or any successor thereto, the Company
will not file with the Commission any other registration statement with respect
to its Common Stock, whether for its own account or that of other stockholders,
from the date of receipt of a notice from requesting Holders pursuant to this
Section 4 (the "Demand Holders") until the first to occur of (i) withdrawal of
such registration statement or (ii) the effectiveness of such registration
statement unless such registration statement relates to a firm commitment
underwritten public offering, then the completion of the period of distribution
of the registration contemplated thereby; provided, however, that following
receipt of any notice under this Section 4, the Company shall immediately notify
all holders of the Company's Common Stock who have contractual rights to demand
registrations pursuant to the terms of any other registration rights agreement
to which the Company is a party. Upon the written request of such demand rights
holders constituting the requisite percentages of shares to initiate a demand
under such other registration rights agreement specifying the number of shares
to be registered, which request shall be deemed to be an exercise of a demand
right under the terms of the registration rights agreement to which they are
parties, such demand rights holders shall be deemed to be Demand Holders and the
shares requested to be registered by such Demand Holders shall be deemed to be
Registrable Shares, in each case, for purposes of Section 4(d), provided that
such written request is received by the Company within 30 days of the giving of
notice by the Company.
(d) If, in the opinion of the managing underwriter, the
inclusion in a registration statement to be filed under this Section of any
shares other than the Registrable Shares requested to be registered under this
Section by Demand Holders would adversely affect the marketing of such shares,
then, in such event (a) such other shares may be included in such registration
only if all of the Registrable Shares requested to be registered by Demand
Holders hereunder are included, and (b) such other shares shall be subject to
the provisions of Section 5 and the first sentence of Section 4(c) as to
priority of inclusion. If, in the opinion of the managing underwriter, the
inclusion of the Registrable Shares requested to be registered under this
Section by Demand Holders would adversely affect the marketing of such
Registrable Shares, Registrable Shares to be sold by the Demand Holders shall be
excluded in such manner
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that the Registrable Shares to be excluded shall first be the Registrable Shares
of Demand Holders who are not affiliates (as defined in Rule 144 of the
Securities Act) of the Company (the "Affiliate Holders") and whose Registrable
Shares are then saleable under Rule 144(e) or Rule 144(k) under the Securities
Act and then pro rata among them, and if further reduction is necessary, shall
next be pro rata among the remaining Registrable Shares of the Demand Holders
who are Affiliate Holders or whose Registrable Shares are not then saleable
under Rule 144(e) or Rule 144(k), provided, however, that, notwithstanding
anything in this Agreement to the contrary, in respect of the first underwritten
public offering following the date of this Agreement, no reduction shall reduce
the number of shares which may be sold by requesting Holders to less than 25% of
the shares to be sold in such offering.
5. Incidental Registration.
If the Company at any time (other than pursuant to Section 4 or Section
6) proposes to register any of its securities under the Securities Act for sale
to the public, whether for its own account or for the account of other
securityholders or both (except with respect to registration statements on Forms
X-0, X-0 or another form not available for registering the Restricted Stock for
sale to the public), each such time the Company will give written notice to all
Holders of outstanding Restricted Stock of its intention to do so. Upon the
written request of any such Holder received by the Company within 30 days of the
giving of any such notice by the Company to register any of such Holder's
Restricted Stock (which request shall state the intended method of disposition
thereof), the Company will use its reasonable 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 such Holder's written
request) of such Restricted Stock so registered. In the event that any
registration pursuant to this Section 5 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of shares of Restricted
Stock to be included in such an underwriting may be reduced 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 to be sold by the Company or
the requesting party therein or that such reduction is otherwise advisable,
provided, however, that after any shares to be sold by holders that do not have
contractual rights to have shares included in such registration have been
excluded, shares to be sold by the Holders shall be excluded in such manner that
the shares to be excluded shall first be the shares of selling Holders and other
requesting holders who, in each case, are not Affiliate Holders and whose shares
are then saleable under Rule 144(e) or Rule 144(k) under the Securities Act and
then pro rata among them, and if further reduction is necessary, shall next be
pro rata among the remaining shares of the selling Holders and other requesting
holders who are Affiliate Holders or whose shares are not then saleable under
Rule 144(e) or Rule 144(k), unless such registration is pursuant to the exercise
of a demand right of another securityholder, in which event such securityholder
shall be entitled to include all shares it desires to have so included before
any shares of Restricted Stock or shares of any other holder are included
therein and provided, however, that, notwithstanding anything in this Agreement
to the contrary, in respect of the first underwritten public offering following
the date of this Agreement, no reduction shall reduce the number of shares which
may be sold by requesting Holders to less than 25% of the shares to be sold in
such offering.
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6. Registration on Form S-3.
If (i) a Holder or Holders of Registrable Shares request that the
Company file a registration statement on Form S-3 or any successor thereto for a
public offering of all or any portion of the Registrable Shares held by such
requesting Holder or Holders, the reasonably anticipated aggregate price to the
public of at least $500,000, and (ii) the Company is a registrant entitled to
use Form S-3 or any successor thereto to register such shares, then the Company
shall use its reasonable best efforts to register under the Securities Act on
Form S-3 or any successor thereto, for public sale in accordance with the method
of disposition specified in such notice, the number of Registrable Shares
specified in such notice. Whenever the Company is required by this Section 6 to
use its reasonable best efforts to effect the registration of Registrable
Shares, each of the procedures and requirements of Section 4 (including but not
limited to the requirement that the Company notify all Holders of Registrable
Shares from whom notice has not been received and provide them with the
opportunity to participate in the offering) shall apply to such registration,
provided, however, that there shall be up to five (5) registrations on Form S-3
which may be requested and obtained under this Section 6, and the Company shall
not be obligated to register Registrable Shares pursuant to this Section 6 on
more than one occasion per twelve (12) month period, and provided, further,
however, that the requirements contained in the first sentence of Section 4(a)
shall not apply to any registration on Form S-3 which may be requested and
obtained under this Section 6.
7. Registration Procedures.
If and whenever the Company is required by the provisions of Section 4,
5 or 6 to use its reasonable 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, 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 reasonable 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 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 of Restricted Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including
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each preliminary prospectus) as such persons reasonably may request in order to
facilitate the public sale or other disposition of the Restricted Stock covered
by such registration statement;
(d) use its reasonable best efforts to register or qualify
the Restricted Stock covered by such registration statement under the securities
or "blue sky" laws of such jurisdictions as the sellers of Restricted Stock or,
in the case of an underwritten public offering, the managing underwriter
reasonably shall request, provided, however, that the Company shall not for any
such purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) use its reasonable best efforts to list the Restricted
Stock covered by such registration statement with any securities exchange on
which the Common Stock is then listed;
(f) immediately notify each seller of Restricted Stock and
each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge 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 a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and promptly
prepare and furnish to such seller a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
such Restricted Stock, 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 not misleading in light of the
circumstances then existing;
(g) if the offering is underwritten and at the request of
any seller of Restricted Stock as provided herein, use its reasonable best
efforts to furnish 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
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 threatened under the Securities Act, (B) the registration statement,
the related prospectus and each amendment or supplement thereof comply as to
form in all material respects with the requirements of the Securities Act
(except that such counsel need not express any opinion as to financial
statements, schedules and other financial or statistical information contained
therein) and (C) to such other effects as reasonably may be requested by counsel
for the underwriters or by such seller or its counsel; and (ii) a letter dated
such date from the independent public accountants retained by the Company,
addressed to the underwriters 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 prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial
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matters (including information as to the period ending no more than five
business days prior to the date of such letter) with respect to such
registration as such underwriters reasonably may request;
(h) make available for inspection by each seller of
Restricted Stock, any underwriter participating 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;
(i) cooperate with the selling holders of Restricted Stock
and the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Restricted Stock to be sold, such
certificates to be in such denominations and registered in such names as such
holders or the managing underwriters may request at least two business days
prior to any sale of Restricted Stock; and
(j) permit any holder of Restricted Stock which holder, in
the sole and exclusive judgment, exercised in good faith, of such holder, might
be deemed to be a controlling person of the Company, to participate in good
faith in the preparation of such registration or comparable statement and to
require the insertion therein of material, furnished to the Company in writing,
which in the reasonable judgment of such holder and its counsel should be
included.
For purposes of Section 7(a) and 7(b) and of Section 4(c), the period of
distribution of Restricted Stock included therein shall be deemed to extend
until the first to occur of (i) each underwriter's completion of the
distribution of all securities purchased by it, and (ii) either (A) two years,
if the Company is qualified to file a registration statement on Form S-3 or any
successor thereto, or (B) 120 days if the Company is not qualified to file a
registration statement on Form S-3 or any successor thereto.
In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Section 4, 5 or 6
covering an underwritten public offering, the Company and each seller agree 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 such
underwriter and companies of the Company's size and investment stature.
No Holder of shares of Restricted Stock included in a registration
statement shall (until further notice) effect sales thereof after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update a registration statement or prospectus; but the
obligations of the Company with respect to maintaining any registration
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statement current and effective shall be extended by a period of days equal to
the period such suspension is in effect unless (i) such extension would result
in the Company's inability to use the financial statements in the registration
statement as initially filed and (ii) such correction or update did not result
from the Company's acts or failures to act.
At the end of the period during which the Company is obligated to keep
the registration statement current and effective as described above (and any
extensions thereof required by the preceding sentence), the Holders of shares of
Restricted Stock included in the registration statement shall discontinue sales
of shares pursuant to such registration statement upon receipt of notice from
the Company of its intention to remove from registration the shares covered by
such registration statement which remain unsold, and such Holders shall notify
the Company of the number of shares registered which remain unsold immediately
upon receipt of such notice from the Company.
8. Expenses.
All expenses incurred by the Company in complying with Sections 4, 5 and
6, including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, costs of insurance, and fees and disbursements
of one counsel for the sellers of Restricted Stock, but excluding any Selling
Expenses, are called "Registration Expenses." All underwriting discounts and
selling commissions applicable to the sale of Restricted Stock are called
"Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 4, 5 or 6. All Selling Expenses in
connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. Indemnification and Contribution.
(a) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Sections 4, 5 or 6, the Company will
indemnify and hold harmless each seller of such Restricted Stock thereunder, its
officers and directors, each underwriter 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 losses, claims, damages or
liabilities, joint or several, to which such seller, officer, director,
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 (i) 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 Sections 4, 5 or 6, any preliminary prospectus or final
prospectus contained therein, or any
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amendment or supplement thereof, (ii) any blue sky application or other document
executed by the Company specifically for that purpose or based upon written
information furnished by the Company filed in any state or other jurisdiction in
order to qualify any or all of the Restricted Stock under the securities laws
thereof (any such application, document or information herein called a "Blue Sky
Application"), (iii) 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, (iv) any violation by the Company or its agents of any
rule or regulation promulgated under the Securities Act applicable to the
Company or its agents and relating to action or inaction required of the Company
in connection with such registration, or (v) any failure to register or qualify
the Restricted Stock in any state where the Company or its agents has
affirmatively undertaken or agreed in writing that the Company (the undertaking
of any underwriter chosen by the Company being attributed to the Company) will
undertake such registration or qualification on the seller's behalf (provided
that in such instance the Company shall not be so liable if it has undertaken
its best efforts to so register or qualify the Restricted Stock) and will
reimburse each such seller, and such officer and director, 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 omission or alleged omission so made in conformity
with information furnished by any such seller, any such underwriter or any such
controlling person in writing specifically for use in such registration
statement or prospectus, and except that the foregoing indemnity agreement is
subject to the condition that, insofar as it relates to any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the preliminary prospectus but eliminated or remedied in the amended prospectus
on file with the Commission at the time the registration statement becomes
effective or in the amended prospectus filed with the Commission pursuant to
Rule 424(b) or in the prospectus subject to completion and term sheet under Rule
434 of the Securities Act, which together meet the requirements of Section 10(a)
of the Securities Act (the "Final Prospectus"), such indemnity agreement shall
not inure to the benefit of any such seller, any such underwriter or any such
controlling person, if such seller, underwriter or controlling person was
obligated under law to provide a copy of the Final Prospectus to the person or
entity asserting the loss, liability, claim or damage and failed to do so after
sufficient copies of the Final Prospectus were delivered by the Company to such
seller, underwriter or controlling person in sufficient time to deliver the
Final Prospectus within the period required by the Securities Act; provided,
further, that this indemnity shall not be deemed to relieve any underwriter of
any of its due diligence obligations.
(b) To the extent permitted by law, in the event of a
registration of any of the Restricted Stock under the Securities Act pursuant to
Section 4, 5 or 6, each seller of such Restricted Stock thereunder, severally
and not jointly, will indemnify and hold harmless the Company, 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 all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
underwriter or controlling person may become subject under
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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, 5 or 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 in the light of the circumstances in which
they were made, and will reimburse the Company and each such officer, director,
underwriter or 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 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 so made in reliance
upon and 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, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any such
untrue statement or alleged untrue statement or omission or alleged omission
made in the preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the Commission at the time the registration statement
becomes effective or in the Final Prospectus, such indemnity agreement shall not
inure to the benefit of the Company, any controlling person or any underwriter,
if the Company, underwriter or controlling person was obligated under law to
provide a copy of the Final Prospectus to the person or entity asserting the
loss, liability, claim or damage and failed to do so within the period required
by the Securities Act; provided, further, that this indemnity shall not be
deemed to relieve any underwriter of any of its due diligence obligations; and
provided, further, that in no event shall any indemnity by a seller under this
Section 9(b) exceed the gross proceeds from the offering received by such
seller.
(c) 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 such indemnified party other than under this Section 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. 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
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 be liable 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 and of liaison with counsel so selected, provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and counsel to the indemnified party shall have
reasonably concluded that there are reasonable defenses available to the
indemnified party which are different from or additional to those available to
the
- 12 -
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. No indemnifying party, in the defense of any such claim or litigation,
shall, except with the consent 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 such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) In order to provide for just and equitable contribution
to joint liability under the Securities Act in any case in which either (i) any
Holder of Restricted Stock exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for Indemnification
pursuant to this Section 9 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 9 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling Holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 9; then, and in each such case, the Company and such
Holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
so that such Holder is responsible for the portion represented by the percentage
that the public offering price of its Restricted Stock offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (A) no such Holder
will be required to contribute any amount in excess of the public offering price
of all such Restricted Stock offered by it pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
10. Changes in Common Stock. If, and as often as, there is any
change in the Common Stock by way of a stock split, stock dividend, combination
or reclassification, or through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Common Stock as so changed.
11. Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Stock to the public without registration, the Company
agrees to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act;
- 13 -
(b) use its reasonable best efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
(c) furnish to each Holder of Restricted Stock forthwith
upon request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such Holder to sell any Restricted Stock without
registration.
The Company shall not be required to effect a registration pursuant to
Section 4, 5 or 6 hereof for any Holder desiring to participate in such
registration who (a) may then dispose of all of its shares of Restricted Stock
pursuant to Rule 144 within the three-month period following such proposed
registration; and (b) holds less than 1% of the outstanding capital stock of the
Company (on a common stock-equivalent basis) at the time of such registration.
12. Representations and Warranties of the Company. The Company
represents and warrants to the Investors as follows:
(a) The execution, delivery and performance of this
Agreement by the Company have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any court or
other agency of government, the Charter or By-laws of the Company or any
provision of any indenture, agreement or other instrument to which it or any or
its properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting the rights of creditors generally), except to the extent
the indemnification provisions herein may be deemed not enforceable.
(c) The Company has not granted any registration rights, and
no such registration rights exist, that conflict with the registrations rights
set forth herein or contemplated hereby. All registration rights agreements
relating to the capital stock of the Company permit, or have been amended to
permit, the transactions and rights set forth herein and contemplated hereby.
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and
- 14 -
assigns of the parties hereto (including without limitation transferees of any
of the shares of Restricted Stock), whether so expressed or not, provided,
however, that registration rights conferred herein on the Holders of shares of
Restricted Stock shall only inure to the benefit of a transferee of shares of
Restricted Stock if such transferee, in the Company's reasonable judgment, is
not a competitor of the Company, and (i) there is transferred to such transferee
at least 20% of the total shares of Restricted Stock originally issued to the
direct or indirect transferor of such transferee by the Company or (ii) such
transfer is made in connection with the distribution by a Holder to such Holders
beneficial owners (including, without limitation, to partners of a general or
limited partnership, shareholders of a corporation, members of a limited
liability company, and beneficiaries of a trust) of securities of the Holder or
to the partners or employees of the Holder, provided that at the Company's
request, one person shall be designated by such transferees as their agent for
purposes of their rights hereunder and the provision of a notice by the Company
to such agent in accordance with the provisions hereof shall be deemed
compliance with such provisions for all such beneficial owners, partners and
employees, and following such request by the Company, the Company shall have no
obligation under said provisions with respect to such transferees until it shall
have been notified of the name and address of such agent.
(b) Each Holder agrees that it will provide notice to the
Company of any transfer or assignment of its rights or interests hereunder. Any
failure by the Company to fulfill a covenant or obligation hereunder which is
the direct result of a failure by a Holder to provide such notice shall not be
deemed to be a breach of any covenant or obligation hereunder.
Nothing in this Agreement shall be construed to create any rights or
obligations except among the parties hereto and their respective and permitted
successors and assigns, and no person or entity shall be regarded as a
third-party beneficiary of this Agreement.
Except as provided in Section 13(a) above, all notices, requests,
consents and other communications hereunder shall be in writing, shall be
addressed to the receiving party's address set forth below or to such other
address as a party may designate by notice hereunder, and shall be either (i)
delivered by hand, (ii) sent by overnight courier, with a receipt obtained or
(iii) sent by registered or certified mail, return receipt requested, postage
prepaid.
If to the Company: Occupational Health + Rehabilitation Inc
000 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxx, XX 00000-0000
Attn: Chief Executive Officer
If to an Investor: To such Investor at the address of such
Investor set forth in Schedule A attached
hereto
All notices, requests, consents and other communications hereunder shall
be deemed to have been given (i) if by hand, at the time of the delivery thereof
to the receiving party at the address of such party set forth above, (ii) if
sent by overnight courier, on the next business day
- 15 -
following the day such notice is delivered to the courier service, or (iii) if
sent by registered or certified mail, on the 5th business day following the day
such mailing is made.
(c) This Agreement shall be governed and construed in
accordance with the law of the Commonwealth of Massachusetts, without giving
effect to the conflict of laws principles thereof.
(d) This Agreement may be amended or modified, and any
provision hereof may be waived in whole or in part, but only by the written
consent of the Company and the holders of a majority of the aggregate number of
outstanding shares of Restricted Stock held of record by the Holders or their
permitted successors and assigns. This Agreement may be terminated by written
agreement of the Company and the holders of at least a majority of the aggregate
number of outstanding shares of Restricted Stock held of record by the Holders
or their permitted successors and assigns.
(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.
(f) Except as otherwise expressly provided herein, the
obligations of the Company to register shares of Restricted Stock under Section
4, 5 or 6 as provided herein shall terminate on March 24, 2007.
(g) If requested by the underwriter or underwriters for an
underwritten public offering of securities of the Company which offering is by
the Company, each Holder of Restricted Stock who is a party to this Agreement
(including, without limitation, a successor or permitted assignee of a party)
shall agree not to sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any shares of Restricted Stock or any other
shares of Common Stock (other than shares being registered in such offering),
without the consent of such underwriter or underwriters, for a period of not
more than 90 days following the effective date of the registration statement
relating to such offering (unless in any event such underwriter or underwriters
shall, based on then current market conditions, agree to a shorter period),
provided, with respect to each such offering, that all persons entitled to
registration rights in such offering who are not parties to this Agreement, all
other persons selling shares of Common Stock in such offering and all executive
officers of the Company shall also have agreed to be bound by provisions
pertaining to the sale of their shares of Common Stock following such offering
which provisions are substantially similar to the provisions binding upon the
Holders of Restricted Stock obligated under this Agreement with respect to the
sale of their shares following such offering.
(h) The Company shall be permitted to require any Holders
requesting registration under Section 4, 5 or 6 to delay any request for
registration or to cease sales under any effective registration statement if the
Company is then contemplating a transaction that could reasonably be expected to
be adversely affected or the Company would be required to make
- 16 -
public disclosure of information, the disclosure of which at such time could
reasonably be expected to cause a material adverse effect upon the Company's
business.
In addition, if at the time of any request to register Registrable
Shares pursuant to Section 4 or Section 6 hereof, the Company is engaged or has
fixed plans to engage within ninety (90) days of the time of the request in a
registered public offering as to which such Holders may include Registrable
Shares pursuant to Section 5 hereof, then the Company may at its option direct
that such request be delayed.
(i) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
In the event that any court of competent jurisdiction shall determine
that any provision, or any portion thereof, contained in this Agreement shall be
unreasonable or unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it reasonable and
enforceable, and as so limited shall remain in full force and effect.
(j) The headings and captions of the various subdivisions of
this Agreement are for convenience of reference only and shall in no way modify,
or affect the meaning or construction of any of the terms or provisions hereof.
14. Entire Agreement.
This Agreement embodies the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes all
prior oral or written agreements and understandings related to the subject
matter hereof, including without limitation the Prior Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 17 -
IN WITNESS WHEREOF, the undersigned have executed this Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first written above.
THE COMPANY: INVESTORS:
OCCUPATIONAL HEALTH + XXXXXX, XXXXXXX STRATEGIC
REHABILITATION INC PARTNERS FUND, L.P.
By: Xxxxxx, Xxxxxxx Strategic Partners, L.P.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------- ------------------------------------------
Title: CFO Title: General Partner
STRATEGIC ASSOCIATES, L.P.
By: Xxxxxx, Xxxxxxx Strategic Partners, L.P.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Title: General Partner
AXA U.S. GROWTH FUND LLC
By: /s/ Xxxxxx X. XxXxxxxx
------------------------------------------
Title: Managing Member
PANTHEON GLOBAL PCC LIMITED
By: /s/ Xxxxxx Xxxx
------------------------------------------
Title: Alternate Director
DOUBLE BLACK DIAMOND II, LLC
By: /s/ Xxxxxx X. XxXxxxxx
------------------------------------------
Title: Managing Member
- 18 -
/s/ Xxxxxx X. XxXxxxxx
----------------------------------------------
Xxxxxxx Worms, signed by Xxxxxx X.
XxXxxxxx pursuant to a power of attorney
THE VENTURE CAPITAL FUND OF
NEW ENGLAND III, L.P.
By: FH & Co. III, L.P., Its General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Title: General Partner
BANCBOSTON VENTURES, INC.
By: /s/ Xxxx XxXxxxxxx
------------------------------------------
Title: Vice President
VENROCK ASSOCIATES
VENROCK ASSOCIATES II, L.P.
By: /s/ Xxxxxxx X. Envin
------------------------------------------
Title: General Partner
ASSET MANAGEMENT ASSOCIATES,
1989, L.P.
By: AMC Partners 89, L.P., General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Title: General Partner
SCHEDULE A
INVESTORS
Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P.
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
with copy to:
Xxxxxx X. Xxxxxx
HLM Management
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Strategic Associates, L.P.
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
with copy to:
Xxxxxx X. Xxxxxx
HLM Management
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
AXA U.S. Growth Fund LLC
c/o Partech International
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. XxXxxxxx
Pantheon Global PCC Limited
Pantheon Ventures, Inc.
Transamerica Center
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxxx
Double Black Diamond II, LLC
c/o Partech International
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. XxXxxxxx
Xxxxxxx Worms
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Asset Management Associates, 1989, L.P.
Alloy Ventures
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
Venrock Associates
Room 5508, 00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxx
Venrock Associates II, L.P.
Room 5508, 00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxx
The Venture Capital Fund of New England, III, L.P.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000-0000
Attn: Xx. Xxxxx X. Xxxxxxxxx
BancBoston Ventures, Inc.
BancBoston Capital
Mail Stop: XX XX 00000X
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxx X. XxXxxxxxx
