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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of this
15th day of July, 1998 by and between MHM SERVICES, INC., a Delaware corporation
(the "Company"), and XXXXXXX X. XXXXXXX and his heirs and assigns ("Xxxxxxx").
This Agreement is made in connection with the issuance by the Company of a
warrant to Xxxxxxx (the "Warrant"), pursuant to which Xxxxxxx may purchase and
the Company may hereafter issue up to 145,000 shares (the "Warrant Shares") of
the Company's common stock from time to time upon the exercise of the Warrant.
The Company hereby confirms that the rights granted under this Agreement
constitute a material inducement to Xxxxxxx to accept the Warrant in connection
with the transactions under which Warrant is being issued.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. In addition to those terms defined elsewhere in this
Agreement, the following terms shall have the following meanings wherever used
in this Agreement:
"Act" shall mean the Securities Act of 1933, as amended, and any
successor statute from time to time.
"Costs and Expenses" shall mean all of the costs and expenses
relating to any subject Registration Statement, including but not limited to
registration, filing and qualification fees, blue sky expenses, costs of listing
any shares on any exchange or automated quotation system, printing expenses,
fees and disbursements of counsel to the Company, and accounting fees; provided,
however, that underwriting discounts and commissions attributable solely to the
securities registered for the benefit of the Holders, fees and disbursements of
counsel to the Holders, and all other expenses attributable solely to the
Holders shall be borne by them.
"Form S-1," "Form X-0," "Xxxx X-0," "Form S-8" and "Form S-18"
mean such respective forms under the Act as in effect on the date of this
Agreement or any successor registration forms subsequently adopted by the
Securities and Exchange Commission (the "SEC") or any successor regulatory
authority.
"Holder" or "Holders" means any person or persons owning or
having the right to acquire Registrable Securities.
"Registrable Securities" means the Warrant Shares and any common
stock issued (or issuable upon the conversion or exercise of any warrant, right
or other security) as a dividend or other distribution with respect to, or in
exchange for or in replacement of any Warrant Shares.
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"Registration" shall mean any registration of Registrable
Securities pursuant to a registration statement filed by the Company with the
SEC in respect of any class of Registrable Securities, other than a registration
statement in respect of employee stock options or other employee benefit plans
or in respect of any merger, consolidation, acquisition or like combination,
whether on Form X-0, Xxxx X-0, Form S-8 or any equivalent form of registration
then in effect.
"Registration Statement" shall mean any registration statement
filed or to be filed by the Company in respect of any Registration.
2. DEMAND REGISTRATION.
(a) Subject to the provisions of this Agreement, Holders of at
least 50% of the Registrable Securities entitled to registration rights under
this Agreement may, by written request delivered to the Company (the "Demand
Notice"), demand that the Company effect a Registration to permit the resale of
the Registrable Securities. The Demand Notice may not be made for a number of
shares or Registrable Securities whose aggregate offering price is expected to
be less than $100,000.00.
(b) Within five (5) days of the receipt of the Demand Notice,
the Company shall deliver to all Holders notice of receipt of the Demand Notice
and each Holder shall have a period of fifteen (15) days after delivery of the
notice to inform the Company in writing of their desire to include their Warrant
Shares in the requested Registration. Each Holder shall be permitted to withdraw
all or any part of its Registrable Securities from a Registration Statement by
written notice to the Company given at any time before the effective date of the
Registration Statement.
(c) The Company will use its best efforts to effect the
Registration as soon as practicable after receipt of the Demand Notice, and in
any event to file the Registration Statement within 90 days of the receipt of
the Demand Notice, and to cause the Registration Statement to become effective.
(d) Notwithstanding anything to the contrary contained elsewhere
in this Agreement, if at the time the Demand Notice is received, the Company
does not qualify to file a Registration Statement on Form S-3 or such other
equivalent short-form registration form, then the Company shall immediately
notify each Holder that it is unable to meet the requirements of such Demand
Notice. Upon the Holder's receipt of such notice from the Company, the Company's
obligations under such Demand Notice shall be terminated.
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3. Piggyback Registration.
(a) Subject to the provisions of this Agreement, in the event
that the Company shall at any time after the date of this Agreement propose a
Registration, then the Company shall give to each Holder written notice (the
"Registration Notice") of such proposed Registration not less than thirty (30)
days prior to the filing of the subject Registration Statement, and shall,
subject to the limitations provided in Section 4, include in such Registration
Statement all or a portion of the Registrable Securities owned by each Holder,
as and to the extent that such Holder may request the same to be so included by
means of written notice given to the Company within fifteen (15) days after
the Company's giving of the Registration Notice.
(b) Each Holder shall be permitted to withdraw all or any part
of its Registrable Securities from a Registration Statement by written notice to
the Company given at any time prior to the effective date of the Registration
Statement.
(c) The Company will use its best efforts to effect the
Registration as soon as practicable after giving the Registration Notice, and to
cause such Registration Statement to become effective.
4. Terms and Conditions of the Company's Obligations. Notwithstanding
anything to the contrary contained in this Agreement, the Company's obligation
to include the Registrable Securities in any Registration Statement pursuant to
Sections 2 and 3 shall be subject, at the option of the Company, to the
following further conditions:
(a) The Registrable Securities proposed to be included in such
Registration Statement may not, at the time of the Registration Notice, be
distributable in open market transactions pursuant to any applicable exemption
from the registration requirements of the Act, including Rule 144 promulgated
thereunder (or any successor thereto);
(b) If an underwriter is used in connection with a Registration,
the distribution for the account of the Holder shall be underwritten by the same
underwriters (if any) who are underwriting the distribution of the securities
for the account of the Company and/or any other persons whose securities are
covered by such Registration Statement, and the Holder shall enter into an
agreement with such underwriters containing customary indemnification and other
provisions;
(c) If the underwriting agreement entered into with the
aforesaid underwriter contains or requires restrictions upon the sale of
securities of the Company by any of the Company, its officers, directors or
other principal stockholders, other than the securities that are to be included
in the proposed distribution, then such restrictions shall likewise be binding
upon the Holder, and if requested by the Company the Holder shall enter into a
written agreement to that effect;
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(d) If at any time after giving the Registration Notice, and
prior to the effective date of the Registration Statement filed in connection
with such Registration Notice, the Company shall determine for any reason not to
proceed with the subject Registration, the Company may, at its election, give
written notice of such determination to the Holder and, thereupon, shall be
relieved of its obligation to register any of the Holder's Registrable
Securities in connection with such Registration, provided, however, that the
Company may not delay a Demand Registration made pursuant to Section 2 of this
Agreement in accordance with this Section 4(d) for a period longer than one
year.
(e) If, in connection with an underwritten public offering
pursuant to a Registration Statement, the managing underwriter(s) thereof shall
advise the Company in writing that the inclusion of all of the Registrable
Securities and other securities of the Company to be included in such
Registration would interfere with the successful marketing of (including
pricing) of all of the Company's securities requested to be so included (but
which shall not refer to any securities held by or to be newly issued by the
Company), then the Company will promptly furnish each such Holder of Registrable
Securities with a copy of such written statement and may require, by written
notice to each such Holder accompanying such written statement, that the
distribution of all or a specified portion of such Registrable Securities be
excluded from such distribution (in case of an exclusion of only a portion of
such Registrable Securities, such portion to be allocated among the Holders of
Registrable Securities in proportion to the respective number of shares of
Registrable Securities so requested to be registered pursuant to such
Registration Statement by all such Holders); and
(f) The Company shall not be obligated to effect any
registration of Registrable Securities incidental to the registration of any of
its securities in connection with mergers, acquisitions, exchange offers,
dividend reinvestment plans or stock option or other employee benefit plans or
incidental to the registration of any non-equity securities convertible into
equity securities whether such registration is effected on Form S-3, Form X-0,
Xxxx X-0, or other permitted form.
5. Registration Procedures. In the case of each Registration effected
by the Company in which Registrable Securities are to be sold for the account of
any Holder, the Company will use its best efforts to:
(a) furnish to counsel selected by each Holder copies of all
Registration Statements or prospectuses or any amendments or supplements thereto
proposed to be filed with the SEC, which documents will be subject to review by
such counsel before filing solely with regard to any information contained
therein which pertains to the subject Holder;
(b) prepare and file with the SEC 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
a period of not less than 90 days after the
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Registrable Securities may first be publicly sold pursuant thereto and to comply
with the provisions of the Act with respect to the disposition of all securities
covered by such Registration Statement during such period;
(c) furnish to each subject Holder such number of copies of such
Registration Statement, each amendment and supplement thereto, the prospectus
included in such Registration Statement (including each preliminary prospectus)
and such other documents as the Holder may reasonably require in order to
facilitate the disposition of the Registrable Securities owned by and registered
on behalf of such Holder;
(d) register or qualify such Registrable Securities under such
other securities or blue sky laws of such states as the underwriter reasonably
requires and do any and all other acts and things which may be reasonably
necessary or advisable to enable each subject Holder to consummate the
disposition of the Registrable Securities in such jurisdictions (provided that
the Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subparagraph, (ii) subject itself to taxation in any such jurisdiction, or (iii)
consent to general service of process in any such jurisdiction);
(e) notify each subject Holder, at any time when a prospectus
relating to a Registration Statement is required to be delivered under the Act,
of the happening of any event as a result of which the prospectus included in a
Registration Statement contains an untrue statement of a material fact or omits
to state any fact necessary to make the statements therein not materially
misleading, and prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchaser(s) of Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not materially
misleading; and
(f) cause all subject Registrable Securities to be listed for
trading on each securities exchange or automated quotation system on which
similar securities issued by the Company as those which are the subject of such
Registration Statement are then listed.
6. Costs and Expenses. The Company shall bear all of the Costs and
Expenses of Registration under Sections 2 and 3 of this Agreement; provided,
however, that each Holder shall pay, pro rata based upon the number of its
Registrable Securities included therein, the underwriters' discounts,
commissions and compensation attributable solely to the inclusion of such
Registrable Securities in the public offering.
7. Indemnification by the Company.
(a) The Company will indemnify each Holder from and against any
claim, loss, cost, charge or liability of any kind, including amounts paid in
settlement and reasonable attorneys' fees, which may be incurred by the Holder
as a result of any breach of any
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representation or warranty or covenant of the Company contained in this
Agreement or in any certificate delivered on the closing date of the public
offering by the Company, with such indemnification to be made within thirty (30)
days of receipt of written request therefor.
(b) The Company shall indemnify and hold harmless each Holder,
any underwriter (as defined in the Act) for any Holder, each officer and
director of a Holder, legal counsel and accountants for a Holder, and each
person, if any, who controls a Holder or such underwriter within the meaning of
the Act, against any losses, expenses, claims, damages or liabilities, joint or
several, to which such Holder or any such underwriter, officer, director or
controlling person becomes subject, under the Act or any rule or regulation
thereunder or otherwise, insofar as such losses, expenses, claims, damages or
liabilities (or actions in respect thereof) (i) are caused by any untrue
statement or alleged untrue statement of any material fact contained in any
preliminary prospectus (if used prior to the effective date of the Registration
Statement), or contained, on the effective date thereof, in any Registration
Statement of which Warrant Shares were the subject, the prospectus contained
therein, any amendment or supplement thereto, or any other document related to
such Registration Statement, or (ii) 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, or (iii)
arise out of any violation by the Company of the Act or any rule or regulation
thereunder applicable to the Company and relating to actions or omissions
otherwise required of the Company in connection with such registration. The
Company shall reimburse each Holder and any such underwriter, officer, director
or controlling person for any legal or other expenses reasonably incurred by
such Holder, or any such officer, director, underwriter or controlling person in
connection with investigating, defending or settling any such loss, claim,
damage, liability or action; provided, however, that the Company shall not be
liable to any such persons in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information furnished to the Company in
writing by such person expressly for inclusion in any of the foregoing
documents. This indemnity shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Company.
8. Indemnification by the Holders. Each Holder participating in the
Registration shall indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed a Registration Statement, legal
counsel and accountants for the Company, each person (if any) who controls the
Company within the meaning of the Act and any underwriter (as defined in the
Act) for the Company, against any losses, claims, damages or liabilities to
which the Company or any such director, officer, controlling person or
underwriter may become subject under the Act or any rule or regulation
thereunder or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) (i) are caused solely by any untrue statement or
alleged untrue statement of any material fact contained in any preliminary
prospectus (if used prior to the effective date of the Registration Statement),
or contained, on the effective date thereof, in any Registration Statement of
which such Holder's Warrant Shares were the subject,
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the prospectus contained therein, any amendment or supplement thereto, or any
other document related to such Registration Statement, or (ii) arise out of or
are based solely 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 each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
to the Company by such Holder expressly for inclusion in any of the foregoing
documents. This indemnity shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the subject Holder.
9. Additional Provisions Regarding Indemnification.
(a) Each Holder and each other person indemnified pursuant to
Section 7 above shall, in the event that it receives notice of the commencement
of any action against it which is based upon an alleged act or omission which,
if proven, would result in the Company's having to indemnify it pursuant to
Section 7 above, promptly notify the Company, in writing, of the commencement of
such action and permit the Company, if the Company so notifies such Holder
within thirty (30) days after receipt by the Company of notice of the
commencement of the action, to participate in and to assume the defense of such
action with counsel reasonably satisfactory to such Holder; provided, however,
that such Holder or other indemnified person shall be entitled to retain its own
counsel at its own expense. The omission to notify the Company promptly of the
commencement of any such action shall not relieve the Company of any liability
to indemnify such Holder or such other indemnified person, as the case may be,
under Section 7 above, except to the extent that the Company shall suffer any
loss by reason of such failure to give notice, and shall not relieve the Company
of any other liabilities which it may have under this or any other agreement.
(b) The Company and each other person indemnified pursuant to
Section 8 above shall, in the event that it receives notice of the commencement
of any action against it which is based upon an alleged act or omission which,
if proven, would result in any Holder having to indemnify it pursuant to Section
8 above, promptly notify such Holder, in writing, of the commencement of such
action and permit such Holder, if such Holder so notifies the Company within
thirty (30) days after receipt by such Holder of notice of the commencement of
the action, to participate in and to assume the defense of such action with
counsel reasonably satisfactory to the Company; provided, however, that the
Company or other indemnified person shall be entitled to retain its own counsel
at the Company's expense. The omission to notify any Holder promptly of the
commencement of any such action shall not relieve such Holder of liability to
indemnify the Company or such other indemnified person, as the case may be,
under Section 9 above, except to the extent that the subject Holder shall suffer
any loss by reason of such failure to give notice, and shall not relieve such
Holder of any other liabilities which it may have under this or any other
agreement.
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(c) 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 that 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. Each indemnified party shall furnish such information regarding
itself or the claim in question as an indemnifying party may reasonably request
in writing and as shall be reasonably required in connection with defense of
such claim and litigation resulting therefrom.
(d) (i) If a court of competent jurisdiction determines that the
foregoing indemnity provided under Sections 7 and 8 above is unavailable, or is
insufficient to hold harmless an indemnified party, 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 (A) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, or
(B) if the allocation provided by clause (A) above is not permitted by
applicable law, or provides a lesser sum to the indemnified party than the
amount hereinafter calculated, in such proportion as is appropriate to reflect
not only the relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other, but also the relative fault of the
indemnifying party and the indemnified party, as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(ii) In the event that the indemnifying party and the
indemnified party are unable to mutually agree on the relative benefits to
and/or the relative faults of such persons and the amounts of appropriate
contribution, such dispute shall be resolved by final, binding and enforceable
arbitration before the American Arbitration Association in Washington, D.C.
10. Rule 144. With the view of making available to a Holder the
benefits of Rule 144 promulgated under the Act and any other rule that may at
any time permit a Holder to sell securities of the Company without Registration,
the Company agrees to:
(a) Use its best efforts to make and keep public information
available at all times;
(b) Use its best efforts to file with the SEC in a timely manner
all reports and other documents required of the Company under the Act and the
Securities Exchange Act of 1934, as amended (the "1934 Act"); and
(c) So long as any Holder owns any Registrable Shares, to
furnish to such Holder upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 and of the Act and the
1934 Act, a copy of its most recent annual of quarterly report, and such other
information as a Holder may reasonably request in order to permit such Holder to
take advantage of Rule 144.
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11. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
given in the manner provided in the Warrant.
12. Waiver and Amendment. No waiver, amendment or modification of this
Agreement or of any provision of this Agreement shall be valid unless evidenced
by a writing duly executed by the Company and Holders of a majority of the
Warrant Shares then issued and held and/or issuable upon future exercise of the
Warrants. No waiver of any default hereunder shall be deemed a waiver of any
other, prior or subsequent default hereunder.
13. Governing Law. This Agreement shall be governed, construed and
controlled by and under the substantive laws of the Commonwealth of Virginia
without regard to principles of conflicts of laws.
14. Assignees. This Agreement is solely for the benefit of the Company,
Xxxxxxx, Holders, and any person(s) acquiring Warrant Shares from a Holder
thereof by will or by the laws of descent and distribution. No other transferees
of Warrant Shares shall be entitled to derive any benefit herefrom.
15. Captions. The captions and Section headings used in this Agreement
are for convenience only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions of this Agreement.
16. Entire Agreement. This Agreement constitutes the sole and entire
agreement and understanding between the parties hereto as to the subject matter
of this Agreement, and supersedes all prior discussions, agreements and
understandings of every kind and nature between them as to such subject matter.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Company and Xxxxxxx have executed this
Agreement as of the date first written above.
COMPANY:
MHM SERVICES, INC.
a Delaware corporation
By: /s/ Illegible signature
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Name:
Title Vice President
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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